Can One Appellate Department Be Right and Three Be Wrong? Yes, Says the Court of Appeals When It Comes to Power-Operated Heavy Equipment or Machinery and the Labor Law

An employee who claims to have suffered proximate injuries caused by a previously identified and unremedied structural defect or unsafe condition affecting an item of power-operated heavy equipment or machinery has stated a cause of action under Labor Law 241(6) based on an alleged violation of 12 NYCRR 23-9.2(a), held the Court of Appeals in Misicki v. Caradonna, — N.E.2d —-, 2009 WL 1286012 (N.Y.), 2009 N.Y. Slip Op. 03764 (May 12, 2009). The Appellate Division, Fourth Department, had been the only one of the four Appellate Divisions to rule that a violation of the rule and regulation promulgated by the Commissioner of the Department of Labor regarding the maintenance of Power-0perated Heavy Equipment or Machinery invoked the protections of Labor Law 241(6).

The Court of Appeals, however, recently held that it was the Fourth Department, and not the First, Second and Third Departments, that was correct. Under Labor Law 241(6), owners and contractors have a nondelegable duty to provide reasonable and adequate protection and safety for workers. This law permits a worker to sue the owner or general contractor at a job site for the failure of another party to provide reasonable and adequate workers protection, a great boon to the worker when the offending party is the workers employer against whom suit would be barred because of the Workers Compensation Law.

Labor Law 241(6) does not apply to regulations that simply declare general safety standards or reiterate common-law principles. To apply, the particular provision relied upon by a plaintiff must mandate compliance with concrete specifications. And therein was the disagreement between the Appellate Departments: The Fourth Department said 12 NYCRR 23-9.2(a) mandated compliance with concrete specifications, the other Departments ruled it to be a general safety standard. Subpart 23-9 of the Code is entitled Power-Operated Equipment. Section 23-9.2(a) states as follows: (a) Maintenance. All power-operated equipment shall be maintained in good repair and in proper operating condition at all times.

Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement. The servicing and repair of such equipment shall be performed by or under the supervision of designated persons. Any servicing or repair of such equipment shall be performed only while such equipment is at rest.

In Misicki, the plaintiff was cutting exposed concrete with a handheld 9-inch electrically-driven angle grinder. He could not find the side handle for it. He was injured when the grinder kicked back and the grinding wheel struck his face, deeply lacerating his upper lip, cheek and right nostril and causing him to lose consciousness momentarily.

The plaintiff claimed that there was no side handle available for the grinder on the day of his accident; that he complained to his supervisor about the missing handle-i.e., his employer had actual notice; that the absence of a handle constituted a structural defect in or an unsafe condition of the grinder; that his employer did not provide him with a handle or replace the allegedly defective grinder; and that the absence of the handle-i.e., the claimed structural defect or unsafe condition previously pointed out to his employer-proximately caused his injuries.

The Courts analysis focused on section 23-9.2(a) first three sentences, as follows:
(1) All power-operated equipment shall be maintained in good repair and in proper operating condition at all times.
(2) Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance.
(3) Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement.

The Court held that the first two sentences of section 23-9.2(a) were general, but pointed out that specific provisions in a Code regulation are enforceable notwithstanding the general nature of other portions of the same regulation. Thus the Court found that the third sentence mandates a distinct standard of conduct, rather than a general reiteration of common-law principles, and is precisely the type of concrete specification that Ross requires for Labor Law 421(6) to apply. The third sentence required structural defects or unsafe conditions affecting power-operated heavy equipment or machinery to be corrected upon discovery by necessary repairs or replacement.

For purposes of this appeal, the court assumed, without deciding, that section 23-9.2(a) applies to a handheld 9-inch electrically-driven angle grinder. The Court did so because the issue was raised for the first time on appeal to the Court of Appeals.

The personal injury lawyers at Levine & Slavit have decades of experience handling personal injury claims, including for workers injured at construction sites. For 50 years spanning 3 generations, we have obtained results for satisfied clients.

Contact the personal injury lawyers at Levine & Slavit for their help. We have offices in Manhattan and Long Island, handling cases in New York City, the Bronx, Brooklyn, Queens and surrounding areas. To learn more, watch our videos.

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