On November 4, 2003 at a construction site on Cantiague Rock Road in Hicksville, New York, an employee of a concrete company was injured. He was working as a concrete laborer on the site. His job on that day was to prepare a concrete frame for a lamp pole base in the parking lot area of the job site. While he was standing next to the hole that the lamp pole base was going to be put in, he was struck from behind. The blow knocked him in to the hole and caused him serious bodily injury. He never saw what struck him. Witnesses on the scene, however, stated that they observed the concrete laborer standing on the side of the hole placing the wooden frame. They stated that the concrete truck had begun to back up and apparently did not see the concrete laborer. The chute of the concrete truck was down in preparation for the pouring of the concrete into the hole. The chute struck the concrete laborer in the area of his upper back which pushed him in to the hole.
The Staten Island concrete laborer filed a law suit against the construction company, the property management company, the property owner, the concrete company’s independent contractors and the concrete company. Within the first year of the law suit, most of these companies were able to prove that they were not involved in the truck accident and had no liability connected with the accident. What was left was a lawsuit against the concrete company, the subcontractors of the concrete company, and the construction company.
The issues that are under evaluation in this suit are under Labor Law § § 240 (1), 200 and common law negligence claims. Also under consideration are Labor Law 241 (6) claims. The victim further alleges violations of the following Industrial Code regulations: 12 NYCRR §§ 23-1.23(a-c); 23-1.5(a-b); 23-1.5(c)(1,3); 23-1.7(b)(1)(I), 23-4.2(a, f-g); 23-9.7(d); 23-9.11(a).
In order for Labor Law § 241 to be applicable to this suit, the victim is required to show specific Industrial Code violations that support his cause of action. He did so and added US Dept. of Labor, Occupational Safety and Health Administration §§ 1926.601(b)(4), 1226.651(a) and 1926.702(b). Because the victim was able to articulate and specify the applicability of Labor Law § 241 9(6) he succeeded in convincing the court that his contentions held more weight than the company’s did.
However, the victim also attempted to add to his claim that there was a large pile of debris on the accident site that he believes could have caused the accident. The company disagreed and the Court Justices stated that there was no reason to believe that if the pile of debris had not been present, that the concrete truck would not have backed up to pour the concrete. Since the concrete truck would have still had to back up to pour the concrete, the accident still would probably have occurred. The presence of the pile or lack thereof would not have altered the facts of the case that set this accident in motions. In order for the company to complete the job required by pouring the concrete into the hole, the frame had to be placed by the victim and the driver of the concrete truck still had to back up and would most likely have still hit the victim. The presence of debris has no bearing on this case. The Westchester company did not suggest any arguments to overturn the complete dismissal of the victim’s Labor Law §§ 240 (1), 200 and common law negligence claims. Because of this, they are not part of the company’s motion and cannot be affected by the decision that the Court will render.
The Court must evaluate each of the Industrial Code violations as they relate to Labor Law § 241. The first one to be considered is 23-1.23 (a-c): Earth Ramps and Runways. Since there were no earth ramps or runways that might have been involved in this accident, this Industrial Code is not relevant to the facts of this case.
Industrial code 23-1.5 (a-b) and 23-1/5 ( c ) (1,3): General Responsibility of Employers deals with health and safety protection which is required. These subsections also deal with the requirement of competency in providing workers with a work place that contains equipment in good condition and safeguards to ensure a safe working environment. Since these subsections all deal with the general responsibilities of employers they cannot be a basis for liability under Labor Law §241 (6). In order for this Law to be in effect, the victim must site specific violations and not general conclusions.
23-1.7 (b)(1)(I): Protection from General Hazards, (b) falling hazards (I ) hazardous openings does not define what is meant specifically by a “hazardous opening.” This Law is also not relevant to the accident in question because it deals with providing barricades or substantial cover over an opening. In order for the job to have been completed, this Law cannot apply since covering the opening would have prevented the pouring of the concrete to complete the job. Also, barriers would not have prevented this accident since both the concrete truck and the concrete laborer had to be present within the confines close to the hole in order to make the lamp post base.
Likewise, 23-4.2(a. f-g): Trench and area type excavations, does not apply since this was not a trench or an excavations. There were no walls that required shoring. This accident did not result of because of a slide and/or cave in.
Labor Law 23-9.7 (d) refers to the backing of trucks at construction sites. However, this law is also not applicable because there was an additional employee who was in place to observe, guide, and signal the driver of the cement truck as it was backing up. This rule also does not take in to consideration an employee standing off to one side while a vehicle is backing and getting struck by something protruding from the vehicle.
Labor law 23-9.11 (a) as it pertains to mixing machines and charging skips is not relevant since this accident did not occur as a result of walking under a charging skip. There were no charging skips involved at all. Because none of the specific Industrial Codes listed by the victim were relevant to this case, the Court finds that the victim’s Labor Law § 241 (6) claim is dismissed.