KEY TAKEAWAYS:

• Property owners, contractors and their agents face increased likelihood of Labor Law § 241(6) liability after a February 20 decision by the NY Court of Appeals expanded the definition of “foreign substance” as used in Industrial Code § 23-1.7(d)

• The court determined a “foreign substance” includes any item that is not a component of, or necessary to the functionality of, the work area, and which is slippery when walked upon, making it difficult to work safely in the area

• Contractors should be mindful of the choice of materials used on the surface of floors, passageways, walkways, scaffolds, platforms or other elevated working surfaces

• While no particular floor covering is mandated, whatever type is used, it must not create or increase the risk of slipping

The New York Court of Appeals recently expanded the types of hazards encompassed by Industrial Code § 23-1.7(d). In so doing, the court increased the likelihood of Labor Law § 241(6) liability for property owners, contractors and their agents in suits arising from construction, demolition, and excavation-site accidents.

In Bazdaric v Almah Partners LLC, 2024 NY Slip Op 00847 (decided February 20, 2024; see decision here), the plaintiff was a painter on a renovation project who slipped on an unsecured plastic covering placed on an escalator in an area where he was assigned to paint. The plaintiff testified that drop cloths were available on the premises, and he complained to his foreman about the use of a plastic covering, but his foreman told him to do the job anyway. The general contractor’s superintendent testified that plastic was the wrong type of covering to use in the area and, had he seen its use, he would have directed the use of a safer covering. Following the accident, the general contractor’s superintendent directed the removal of the plastic, which was done immediately afterward.

In a 3-2 split decision of the Appellate Division, that court granted the defendants’ motion to dismiss on the basis that the plastic covering was integral to the work, and that the plastic covering was not a “foreign substance” under Industrial Code § 23-1.7(d) because it was different in kind from the other types of slipping hazards listed in that Code section, i.e. ice, snow, water, or grease. The Court of Appeals reversed, finding a violation of Industrial Code § 23-1.7(d), and granted the plaintiff summary judgment on his Labor Law § 241(6) claim.

Labor Law § 241(6) imposes statutory liability upon property owners, contractors, and their agents for injury claims arising from construction, demolition, or excavation operations. A Labor Law § 241(6) claim must be supported by a violation of a provision of Part 23 of the NYS Industrial Code that imposes specific safety standards. In Bazdaric, the sole code section at issue before the Court of Appeals was the alleged violation of Industrial Code § 23-1.7(d), which provides:

Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.

The Court of Appeals held that the term “foreign substance” in this code section is not limited by the other types of enumerated slipping hazards, i.e. ice, snow, water, or grease. Rather, the term depends upon the substance’s relation to the area where the plaintiff was assigned to work, and the substance’s properties. Viewed, this way, the court found that the plastic covering was a “foreign substance” in relation to the escalator. That is, it “was not a component of the escalator and was not necessary to the escalator’s functionality.” In addressing the properties of a qualifying foreign substance, the court defined such substances as:

types of material that are slippery when in contact with an area where someone walks, seeks passage, or stands, and, when the substance is present, would make it difficult if not impossible to use the work area safely, necessitating one of the affirmative mitigating measures set forth in section 23-1.7 (d) as a means to provide safe footing.

With this more-expansive definition of “foreign substance,” the court found that the plastic covering was an object that comes within the scope of Industrial Code § 23-1.7(d).

Next, the court rejected the defendants’ argument that they cannot be liable for the alleged violation because the plastic covering was “integral to the work.” That defense “applies only when the dangerous condition is inherent to the task at hand,” but not where the defendant created an avoidable danger. The court acknowledged that some type of covering on the escalator in the work area was needed, but the use of a covering that was inherently slippery was not “necessarily ‘integral,’ particularly where a safer alternative would have accomplished the same goal.” The court then noted that alternate, safer coverings were familiar and previously-used by the contractors, and would have achieved the goals of protecting the worker and escalator. “A contrary holding would absolve employers of liability for using any means of accomplishing a task, even if it is the most dangerous.”

Next Steps

Property owners, contractors and their agents need to be diligent in monitoring their construction, demolition, and excavation activities, including when the work is being performed by down-line subcontractors. If laborers are observed walking on surfaces placed in the work area, the characteristics of those surfaces should be assessed for their ability to provide sound and stable footing. Mitigating steps that may be taken are substituting another type of work surface, requiring the placement of non-slip tape, “roughing” the surface, or requiring alternate, more suitable footwear to be worn.

If you have any questions about how this case may impact your business, please contact:

• Reed M. Podell
• Kelly A. McGee
• Joseph A. Oliva
• Theodore W. Ucinski III