By: Thomas H. Welby Published: June 2009

Safety Policy: Owners' and Contractors' Non-Delegable Duty to Ensure Compliance With "Specific" Safety Rules in New York's Industrial Code

While most construction-industry employers in New York are somewhat knowledgeable about OSHA’s construction regulations and the notorious “Scaffold Law,” many have never heard of New York’s “Industrial Code,” which is another source of regulations your safety program needs to take into account.

By statute, the Commissioner of the New York State Department of Labor issues safety regulations.  They are collected in Part 12 of the New York Code of Rules and Regulations (NYCRR).

The recent 4-3 decision by the New York Court of Appeals in Misicki v. Caradonna, in addition to giving me an opportunity to alert you to the murky rules of liability under the Industrial Code, overturned existing precedent, and has lowered the bar somewhat for an injured plaintiff to get his case to a jury.

Misicki, a laborer, was working on the renovation of a pool deck at a residential cooperative.  The owner, whom we’ll call “Shore” for short, had engaged Misicki’s employer, “Upgrade,” to perform the job.
One day Misicki was given a hand-held, 9-inch, electrically-driven angle grinder, and was told to cut a slot into a line marked on a wall, between one and two feet above the deck.

The grinder was supposed to have a removable handle, which could be fitted onto the grinder in any of several different positions.  Misicki complained to his foreman about the missing handle, but was instructed to use the grinder without it.

At one point, Misicki had to lie on his side beneath a protruding balcony, and use the grinder in an awkward position.  The grinder “kicked back,” the grinding wheel struck Misicki in the face, and he was badly injured.

Although of course unable (because of the Workers’ Compensation Law) to sue his employer, Misicki sued Shore for common-law negligence and under several provisions of the Labor Law.  As usual in such cases, Share then brought a third-party action against Upgrade.

After discovery and the weeding out of several claims through motion practice, what remained was a single claim under Labor Law § 241(6), which “requires owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Department of Labor.”  That duty is “non-delegable” — which is to say that the premises owner may be held liable, even if it did not supervise the work.

A finding that an Industrial Code safety rule was not observed does not mandate a finding of liability: it is merely evidence for the fact-finder to consider on the question of the defendant’s negligence.  And, unlike the Scaffold Law, the plaintiff’s comparative negligence may be considered.

Where matters become really confusing is that a breach of the non-delegable duty will not support a lawsuit under Labor Law § 241(6) unless the provision not complied with mandates compliance with specific specifications, as opposed to merely reiterating safety standards in general terms.
In Misicki, analysis of whether the provision in question, 12 NYCRR 23-9.2(a), was “specific” or “general” focused on the following three sentences:

  1. All power-operated equipment shall be maintained in good repair and proper operating condition at all times.
  2. Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance.
  3. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement.

Defendant moved in the trial court for summary judgment, relying on a line of prior Second Department precedents holding that section 23-9.2(a) merely establishes general safety standards which do not give rise to a non-delegable duty.1 

Supreme Court, the trial court, at first agreed that, since it was sitting within the Second Department,  it was bound by precedent to dismiss Misicki’s Labor Law § 241(6) claim.  Plaintiff moved to reargue Supreme Court’s dismissal order, and convinced Supreme Court to distinguish earlier Second Department cases and instead follow the Zucher case, from the Fourth Department, to find an actionable violation of  a sufficiently-specific mandate to remedy upon discovery a “structural defect or unsafe condition.” Misicki argued that, read together, the second and third sentences mandate sufficient inspections, and the correction of any defects or unsafe conditions found.

Supreme Court therefore reversed itself and reinstated the plaintiff’s Labor Law § 241(6) claim.  Defendant appealed to the Appellate Division, Second Department, which reversed the reinstatement of the plaintiff’s claim, reaffirming its rule (prevalent also in the First and the Third Departments) that § 23-9.2(a) is too general to give rise to a non-delegable duty.

The Court of Appeals agreed to hear the plaintiff’s appeal, in order to resolve the conflict between the Fourth Department on the one hand, and the First, Second and Third Departments on the other.
The appeal to New York’s top court produced a 4-3 decision adopting the minority (Fourth Department) rule, reversing the Second Department, and reinstating Misicki’s claim.  It produced also two sharp dissents, disagreeing both with the majority decision and with one another.

Many non-lawyers would approve the common-sense approach of the dissent by Judges Smith and Pigott.  These dissenters found the entire “specificity” analysis uncalled for, because Subpart 23-9 is limited by its terms to “heavy equipment or machinery.”  This dissent likens scrutinizing, for specificity, a provision which plainly ought not to apply “to deciding whether I would be a bicycle if I had wheels.”

Remarkably, the inapplicability of a rule concerning “heavy equipment or machinery” was never raised by defendant’s attorney.  Judges Pigott and Smith argued in vain that an exception should be made to the rule relied upon by the other five Judges in choosing to exclude this obvious, common-sense argument —  namely, that generally cases must be decided based upon arguments actually raised by the litigants.

The third dissenter, Judge Graffeo, wrote her own opinion, agreeing with the majority that the applicability argument could not be considered, but voting nevertheless to affirm the Appellate Division’s dismissal of the plaintiff’s action, based on the reasoning of the prior Second Department cases that found the provision too general.

The four-Judge majority, however, found in the last of the three sentences quoted above (imposing a duty to replace or repair defective or unsafe equipment) a “distinct standard of conduct” which, in their view, is “precisely the type of ‘concrete’ specification” required.

While ultimately the issue of liability was left for the jury, under the Court of Appeals’ decision in Misickiif some party to or participant in the construction project should be found to have caused the plaintiff’s injuries, then the defendant-owner would be vicariously liable without regard to fault.

Misicki, in which each of the three decisions that followed the first one reversed the one that preceded it, underscores the dubious wisdom of having different liability rules for “specific” and “general” duties under the Industrial Code.  Your safety director must nevertheless take into account, in fashioning your safety program, provisions of the Industrial Code that even arguably apply to the work performed by your trade.

1 The four “Departments” of New York’s Appellate Division comprise, in theory, a single statewide court.  However, the “Departments” may differ among themselves (until their conflict is resolved by the Court of Appeals) in which case the lower-level trial courts within each Department are bound by the precedent established by the local Appellate Division.

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