By: Thomas H. Welby Published: June 2014

Empty Aeration Tank in Sewage Treatment Plant Held to Violate Industrial Code

A recent case decided by the New York Appellate Division reminds us that, in addition to the federal OSH Act, and all of the related construction standards, New York’s Industrial Code remains in effect, and is an additional set of rules to be obeyed to ensure construction safety.

The case in question is Cerverizzo v. City of New York, et al. The plaintiff, employed by a subcontractor, was installing brackets in an empty aeration tank being upgraded at the Hunts Point Sewage Treatment Plant. The general contractor had an air monitoring subcontractor, but that sub’s reports did not show that the aeration tank was monitored for air quality for two weeks prior to the incident.  The plaintiff working in the tank became ill; had to be given oxygen for 12 hours; sustained injuries from oxygen depletion due to exposure to hydrogen sulfite gas; and was diagnosed with “hypoxic ischemic encephalopathy due to toxic inhalation.”  He sued the City and the general contractor, to recover for his injuries.

The plaintiff moved for partial summary judgment as to liability on claims based on common-law negligence, Labor Law § 200, and Labor Law § 241(6).  The latter section mandates that all areas in which construction, excavation, or demolition work is being performed be “constructed, shared, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.”

In the trial court, the plaintiff’s motion for summary judgment on his § 241(6) cause of action was denied.  On appeal to the Appellate Division, however, the lower court’s order was modified, and that branch of the plaintiff’s summary judgment motion was granted.

The Appellate Division held that there was no issue but that the plaintiff had been permitted to work in the aeration tank without the air in the same having been monitored, in violation of the Industrial Code provision, 12 NYCRR 23-1.7(g), requiring such testing of any “unventilated confined area including but not limited to a sewer, pit, tank or chimney where dangerous air contaminants may be present or where there may not be sufficient oxygen to support life.”  The aeration tank, a large concrete structure used to aerate and clean sewage, was held to be an “unventilated confined area.”  The Appellate Division rejected the defendants’ argument that only an area having a restricted means of access (such as a trap door or a manhole) met the statutory definition.  Although the top of the aeration tank was open to the air, access was still restricted, as the plaintiff needed to use a 20-foot ladder to enter and exit the tank.

Labor Law § 241(6) authorizes the state’s Industrial Commissioner to make rules to give effect to its provisions, and requires owners and contractors and their agents for such work (except owners of one and two-family dwellings who contract for, but do not direct or control the work) to comply with those rules.

New York was a leader in enacting legislation to promote construction safety.  The Industrial Code was a forerunner to, and a model for, OSHA’s construction safety standards, and was enforced by Industrial Code inspectors, employed by the State Department of Labor.

After the OSH Act was enacted, there was reduced emphasis in New York on enforcing the Industrial Code, and in expanding and updating its construction standards.  However, the standards remain in effect.  There were a number of important court cases addressing the role of the Industrial Code and its standards in light of the passage of OSHA.  In Irwin v. St. Joseph’s Intercommunity Hospital (1997), the Appellate Division held that Congress did not intend to pre-empt Labor Law § 241(6).  Among other things, the OSH Act expressly disclaims the intent to enlarge or diminish the common law or statutory rights, duties or liabilities of employees and employers, regarding injuries, diseases or death arising out of or in the course of employment.

The OSH Act, it should be noted, is designed to prevent workplace injuries and illnesses.  It does not serve as a basis upon which an injured worker can recover damages for personal injury.  In contrast, as the New York Court of Appeals held in Allen v. Cloutier Constr. Corp. (1978), injured workers may recover money damages for injuries resulting from the breach of the non-delegable duty upon all contractors, owners and their agents to comply with the rules of the Industrial Commissioner when performing construction, excavation or demolition work.

In Rizzuto v. L. A. Wenger Contracting Co., Inc. (1998), the Court of Appeals held that the violation of an Industrial Code rule does not per se establish a statutory cause of action:  the violation in question must rise to the level of a negligent act.

In Ross v. Curtis-Palmer Hydro-Electric Co., the Court of Appeals held that Industrial Code provisions must be divided into two classes: those which mandate compliance with a specific positive command, and those which establish nothing more than a generalized requirement that owners and contractors act in an adequate, proper, or suitable manner, or provide (for example) “proper scaffolds,” devices as are “suitable” or “structurally safe,” or prohibit the use of equipment which is “not in good repair.”

Liability under Labor Law § 200(1) requires that the defendant have supervised or had control over the work.  To impose liability under § 241(6) for any act deemed to be contrary to good and accepted practices, or to fall below reasonable expectations, would make virtually every act of garden-variety negligence a § 241(6) violation, for which vicarious liability could be imposed, making § 200(1) all but superfluous.

Finding that that could not have been the legislative intent, the Court of Appeals held in Ross that only provisions of the Industrial Code mandating compliance with “concrete specifications” will support a cause of action under § 241(6) to recover for personal injuries.

Most, but not all, of the rules that can support a Labor Law § 241(6) claim are included in 12 NYCRR Part 23.  These days, certainly, OSHA’s standards are more comprehensive by far than those in the Industrial Code.  Nevertheless, your safety personnel need to be familiar with relevant Industrial Code provisions (see www.labor.state.ny.us/workerprotection/safetyhealth/sh23.shtm.  The same remain in effect, and potential liability for personal injuries resulting from a Labor Law § 241(6) violation may exceed by far the monetary penalties for most OSHA violations.

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