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Second Department Reinstates Worker’s Labor Law § 241(6) Claim in Excavator Bucket Crush Case

HOME -> Our blog -> Second Department Reinstates Worker’s Labor Law § 241(6) Claim in Excavator Bucket Crush Case

13 May 2015

The City of New York hired contractors to install sewers along one of the streets on Staten Island. A member of an excavation crew was working about 10 feet below grade level, and within the confines of a steel trench box. He was using hand signals to direct the operator of excavator, in his maneuvering of the excavator bucket. As the man was signaling the operator of the excavator, his right hand was crushed against the inside of the steel trench box by the bucket of the excavator.

The worker sued the City to recover damages for sustained injuries, alleging common-law negligence and violations of Labor Law § 200, 240(1), and 241(6). Plaintiff also sued Caterpillar as a manufacturer of the excavator, asserting products liability causes of action against it, including failure to warn of the foreseeable dangers of using the excavator. Both defendants filed motions for summary judgment dismissing the complaint. The lower court granted the motions and dismissed the claim. Plaintiff appealed.

On appeal, the Second Department explained that the provision Labor Law § 200 is a codification of the common-law duty to exercise due care in providing a safe place to work. Cases involving violation of that provision fall into two broad categories, namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed.  The Second Department found that this case did not involve a dangerous or defective premises condition.  Moreover, the Second Department held that the City established entitlement to summary judgment, dismissing the Labor Law § 200 and common-law negligence causes of action, by demonstrating that they did not have the authority to control, direct, or supervise the method or manner in which the work was performed. In addition, the Second Department upheld dismissal of Labor Law § 240(1) since the case did not involve a gravity or elevation-related hazard.  

With regard to the third cause of action against the City, the Second Department explained that Labor Law § 241(6) imposes a nondelegable duty on owners, contractors, and their agents to provide a safe workplace to workers, and applies to "all areas in which construction, excavation or demolition work is being performed." Pursuant to that duty, owners, contractors, and their agents must comply with those provisions of the Industrial Code that set forth specific requirements or standards. The City contended that, since the injured plaintiff was a member of the "excavating crew," as that term is employed in Industrial Code § 23-9.5(c), he was authorized to be within range of the moving excavator bucket. The Second Department explained, however, that a person authorized pursuant to Industrial Code § 23-9.5 to operate or be within the range of an excavator's bucket may still claim the protections provided by Industrial Code § 23-4.2(k). The Second Department held that plaintiff, based upon his expert's affidavit, raised a triable issue of fact as to whether the City violated that provision and the lower court should not have granted the summary judgment dismissing this cause of action.

Finally, the Second Department held that the lower court properly granted the motion dismissing the claim against Caterpillar. The Second Department explained that a manufacturer may be held liable for the failure to warn of the foreseeable risks and dangers involved in the use of its product. The Court added, however, that, although the adequacy of a warning is usually a question of fact, there is no duty to warn of an open and obvious danger of which the product user is aware or should be aware as a result of ordinary observation. No duty was established in this case. Caterpillar submitted of a transcript of the injured plaintiff's deposition testimony, which established that he was experienced in all phases of pipe-laying work, including working in a trench and working in proximity to an excavator.  Further, the injured plaintiff acknowledged that he had not read all warnings provided by Caterpillar in connection with the excavator, and the operator of the excavator acknowledged that, at the time of the accident, the operator was unable to read English. 

Accordingly, the Second Department upheld the lower court’s decision dismissing plaintiff’s products liability and Labor Law § 200 and § 240(1) claims, but modified the decision to reinstate plaintiff’s Labor Law § 241(6) claim.

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