A demolition worker was injured when his hand came into contact with an angle grinder that he was using to cut through cement. According to the injured worker, on the day of the accident a foreman provided him with an angle grinder that did not have a safety guard, and instructed him to perform his work with this grinder, despite the fact that it lacked a safety guard.
The worker filed a suit against the general contractor of the construction site to recover damages for the injuries he sustained under Labor Law § 241(6), alleging a violation of Industrial Code § 23-1.5(c)(3)) as the predicate for his cause of action. In his complaint, plaintiff contended that defendant violated the specific and concrete requirements of the section because (1) other grinders at the subject construction site had safety guards, but he was instructed to use the tile grinder without its safety guard, and (2) the general contractor failed to remove the unguarded grinder from the work site. The defendant filed a motion for summary judgment to dismiss the claim, contending that it did not violate any specific requirements of the Industrial Code. The lower court granted the motion. Plaintiff appealed.
On appeal, the First Department held that the lower court erred in finding that section 23-1.5(c)(3) was too general to support plaintiff's Labor Law § 241(6) claim. The Fist Department explained that section 23-1.5(c)(3) is explicitly concerned with the condition of the equipment and safeguards as it prohibits the use of equipment which is not in good repair and in safe working condition.
The Court found that the provision, although not explicitly, also prohibits the use of unsafe grinders. Further, the Court interpreted the last sentence of the section which says that “All safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged.” The Court held that sentence mandates a distinct standard of conduct and created an affirmative duty, rather than a general reiteration of common-law principles, and thus is precisely the type of concrete specification that is required by the law. The Court compared this case to a prior Court of Appeals case in which a worker was injured when a hand-held electrically-driven angle grinder kicked back and the grinding wheel struck his face. In the prior case, the parties also disputed over the issue whether the certain provision of the Industrial Code was enough specific and permitted recovery. In order to resolve the apparent conflict in the lower courts, the Court of Appeals ruled that if the language of the regulation mandates particular conduct upon discovery of a structural defect or unsafe condition, it is a sufficient basis to claim damages.
Therefore, the First Department held that a violation of the last sentence of the section provides a basis for liability under Labor Law § 241(6) because the section specifically prohibited the use of equipment which is not in good repair and in safe working condition. The First Department included a reservation, however, that the angle grinders must have been ordinarily or originally provided with safety guards for there to be a violation of the section.
Accordingly, the First Department reversed the lower court’s decision and denied the defendant’s motion for summary judgment.