New York’s Highest Court Announces A Major Expansion Of Labor Law 241(6) Liability

Written by C. Briggs Johnson

New York’s highest Court (the Court of Appeals) has just announced a major expansion of Labor Law section 241(6) liability against those who own or perform general contractor services for buildings undergoing construction, excavation, or demolition.

In Bazdaric v. Almah Partner LLC, the Court expanded the scope of industrial code section 12 NYCRR 23-1.7(d) (i.e., the slip and fall code) by announcing that a “plastic covering” or tarp was a “foreign substance” within the meaning of that code.  This is a dramatic departure from the other specifically enumerated slippery conditions listed in that code (“Ice, snow, water, [and] grease), which all deal with liquid or transient conditions.   In other words, reading a plastic tarp as “any other foreign substance” seems to cut against the intent of the code at the time it was written.

And this is precisely what the defendants argued under the doctrine of ejusdem generis (that general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words).  The Court rejected that doctrine and held that “because it would have been impossible to operate the escalator” where plaintiff worked and fell “if covered with plastic”, that therefore the plastic tarp “was, by definition a substance foreign to the escalator.”

Of course, while many of us might disagree with that interpretation of the industrial code, it is now the law of this State.  It is therefore another crucial component to be aware of when defending construction accident cases going forward given the high exposure usually associated with those cases.