New York Construction Site Accidents
Labor Law § 241(6) provides:
All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.
It is well established that Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to “provide reasonable and adequate protection and safety” for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49 (1993).
The Industrial Code rule or regulation alleged to have been breached must be a “specific, positive command,” rather than merely broadly requiring general safety standards. Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343, 670 N.Y.S.2d 816 (1998).
Control or supervision by the owner or general contractor of the worksite is not a requirement for the imposition of liability. Allen v. Cloutier Const. Corp., 44 N.Y.2d 290, 405 N.Y.S.2d 630 (1978). Nor is actual or constructive notice. Rizzuto,supra (since an owner or general contractor’s vicarious liability under § 241(6) is not dependent on its personal capability to prevent or cure a dangerous condition, the absence of actual or constructive notice sufficient to prevent or cure must also be irrelevant”)
A violation of the administrative rule cannot rise to the level of negligence as a matter of law, it is merely some evidence of negligence which the jury may consider on the question of defendant’s negligence. Rizzuto, supra.
Comparative negligence is a defense to the action, and evidence of custom and usage is admissible to determine the standard of care. Zimmer v. Chemung County Performing Arts, Inc., 65 N.Y.2d 513, 493 N.Y.S.2d 102 (1985). In Zimmer, the Court of Appeals stated as follows:
…this Court has consistently rejected the notion that a violation of section 241 (6) results in absolute liability irrespective of the absence of some negligent act which caused the injury, we have repeatedly recognized that section 241 (6)imposes a nondelegable duty upon an owner or general contractor to respond in damages for injuries sustained due to another party’s negligence in failing to conduct their construction, demolition or excavation operations so as to provide for the reasonable and adequate protection of the persons employed therein. Thus, once it has been alleged that a concrete specification of the Code has been violated, it is for the jury to determine whether the negligence of some party to, or participant in, the construction project caused plaintiff’s injury. If proven, the general contractor (or owner, as the case may be) is vicariously liable without regard to his or her fault.
In Mattison v. Wilmot, 228 A.D.2d 991, 645 N.Y.S.2d 122 (3rd Dept. 1996), the Appellate Division, Third Department, found that a violation of 12 NYCRR 23-6.1(j)(1) that requires hoist brakes to be supplied for every material hoist and that “[e]ach manually-operated material hoist shall be equipped with an effective pawl and ratchet,” constituted concrete specifications promulgated by the Commissioner of Labor sufficient to impose a duty upon defendant.
Similarly, in Carroll v. Metropolitan Life Ins. Co., 264 A.D.2d 336, 694 N.Y.S.2d 369 (1st Dept. 1999), the First Department held that where a hand-cranked hoist, although expected to lock automatically with a click, did not do so, was sufficient to raise a triable issue of fact as to whether the Industrial Code provision requiring “an effective pawl and ratchet” mechanism on manually-operated material hoists (12 NYCRR 23-6.1 [j] ) was violated. The Court found that the duty imposed by 12 NYCRR 23-6.1 (j)(1) was sufficiently specific that its breach may serve as a ground for imposing liability pursuant to Labor Law § 241(6).