First Department Holds That 4-12" Mis-Step Is Not An Elevation Related Risk, But Slippery Condition May Have Been Caused By Industrial Code Violation

In Cappabianca v. Skansa USA Building Inc., the First Department affirmed dismissal of Labor Law and common law claims except section 241(6) where the plaintiff fell on an unsteady pallet. The plaintiff was standing on a slatted pallet and was cutting bricks with a wet saw located on an adjacent pallet. The wet saw’s pan improperly leaked water and muck (from the bricks) onto the floor, which built up over days and weeks of use. When the plaintiff turned to stack a recently-cut brick, the pallet swiveled, causing the plaintiff to fall. The First Department held that section 240(1) did not apply because the plaintiff’s fall/misstep from the 4-12 inch pallet did not expose the plaintiff to the kind of elevation-related risks that trigger the scaffold law.

With two judges dissenting, the First Department affirmed dismissal of plaintiff’s claim under section 200 and the common law, noting that the water/muck condition was the result of the “manner and means of the work ” over which the defendants did not exercise supervisory control, and that the water/muck condition was not a dangerous condition of the premises. According to the majority, the water/muck condition was the result of the plaintiff’s employer’s negligence, and section 200 does not allow for vicarious liability against an owner or general contractor. By contrast, the dissent argued the section 200 and the common law claims should be reinstated because the water/muck could become a dangerous premises condition over time or the origin of the water might be the result of a separate dangerous premises condition that allowed rainwater to accumulate on floors.

The First Department reversed and reinstated the plaintiff’s claims under section 241(6), finding that there were triable issues under two industrial code provisions (1) prohibiting worker use of elevated working surfaces set in a slippery condition and requiring the removal or covering of water or foreign substances that may cause slippery footing and (2) requiring repairs or replacement of defective or unsafe “[power-operated] equipment.” The First Department rejected, however, plaintiff's claim under the section on hazardous openings, noting that it did not apply to the 3-6 inch openings between slats on the pallet. Similarly, a provision related to vehicular and pedestrian traffic was inapplicable to the slatted pallet on which plaintiff worked; a provision regarding wet footing did not apply because plaintiff testified that he wore rubber-soled work boots that adequately protected him; and a provision on tripping hazards did not apply where plaintiff did not trip on an accumulation of dirt or debris.