First Department Holds Labor Law 241(6) Violated Where Tool Used By Plaintiff Could Never Comply With Industrial Code Requirements

In Kelmendi v. Hudson Street, LLC, the plaintiff was using a hand-held reciprocating saw -- a saw with an 8-inch blade protruding from the front that operates by moving back and forth, rather than in a circular motion -- when the blade snapped and struck plaintiff in the neck. The defendants established that, by the very function and intended use of the reciprocating saw, it was impossible for any guards to be placed around the blade. Nevertheless, the saw qualified as a "portable power-driven, hand-operated saw" that required a guard above the base plate and a movable guard below the base plate, under Industrial Code § 23-1.12(c)(1).  As such, the First Department held that the Code had been violated.

The Court further noted, quoting from the lower court's decision, that to accept defendant's argument that the Code should not apply because it was impossible to have a guard on the blade as required by the Code "would be to ineffectualize the regulation because employers, owners and contractors would only use tools that would minimize their liability." 

In essence, the lower court and the First Department presumed that, if reciprocating saws were exempted from the Code then employers, owners and contractors would require workers to use these saws in place of table saws and circular saws, etc., regardless of how inefficient a reciprocating saw might be for the assigned task, simply to insulate themselves from potential liability.