Opinion
December 26, 1991
Appeal from the Supreme Court, Clinton County (Ryan, J.).
At issue is whether plaintiff made out a case under Labor Law § 241 (6) sufficient to withstand defendant's motion for a directed verdict. Plaintiff, an ironworker whose employer was performing construction work at defendant's paper mill, testified that on the day of his injury he entered the building, walked down a passageway past a paper-producing machine, an area he had frequently traversed before, and, after stepping over a damp spot, slipped on "something". His near fall allegedly resulted in permanent groin and back injuries. At the close of plaintiff's case, Supreme Court granted defendant a directed verdict for the reason that, by not offering "some proof of a condition that existed that caused" his injuries, plaintiff had failed to establish a prima facie cause of action. Plaintiff appeals.
Initially, it should be noted that this is not a traditional slip and fall case (cf., Lowrey v Cumberland Farms, 162 A.D.2d 777), but a suit based on Labor Law § 241 (6) and its implementing regulation, 12 NYCRR 23-1.7 (d) (see, Gregory v General Elec. Co., 131 A.D.2d 967, 969). Labor Law § 241 (6) requires that employers "provide reasonable and adequate protection and safety to [employees]", and 12 NYCRR 23-1.7 (d) unequivocally directs employers not to suffer or permit employees to use slippery passageways. Furthermore, the regulation imposes an affirmative duty on employers to remove, sand or cover ice, snow, water, grease "and any other foreign substance" which might cause a passageway, inter alia, to become slippery ( 12 NYCRR 23-1.7 [d]). Although violation of this regulation does not create absolute liability, it does constitute "some evidence" of negligence (see, Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 522).
Given defendant's admission that the area where plaintiff slipped was moist on the day in question and plaintiff's testimony that "there was some moisture on the floor and I stepped over it", the jury could have rationally concluded that defendant failed to comply with Labor Law § 241 (6) and 12 NYCRR 23-1.7 (d) and that plaintiff's slipping, twisting, loss of balance and subsequent injury proximately resulted from this noncompliance on defendant's part. This is sufficient to establish a prima facie case; plaintiff was not obligated to eliminate all other potential causes of his injury (see, Locilento v Coleman Catholic High School, 134 A.D.2d 39, 41). Accordingly, defendant's motion for a directed verdict should have been denied.
As this case requires the jury to decide whether defendant's safety measures were reasonable and adequate on the day of plaintiff's injury, the condition of the floor in question on prior occasions and the protective measures taken by defendant in response are logically probative, not as to the actual condition or measures taken on the day of plaintiff's accident, but as to defendant's knowledge of and response to the dangerous condition (cf., People v Davis, 43 N.Y.2d 17, 27, cert denied 435 U.S. 998, cert denied sub nom. New York v James, 438 U.S. 914). Plaintiff should have been permitted to refresh the memory of his witness, Michael Baker, regarding this information and to introduce prior inconsistent statements for the limited purpose of impeaching this witness's credibility (see, Richardson, Evidence §§ 465, 508, at 453, 499 [Prince 10th ed]; see also, CPLR 4514).
Lastly, there is no merit to plaintiff's contention that the law of the case doctrine applies here where defendant's summary judgment motion regarding plaintiff's Labor Law § 241 (6) claim was previously denied because the motion papers raised a triable issue of fact (see, Hammond v International Paper Co., 161 A.D.2d 914, 915; see also, Sackman-Gilliland Corp. v Senator Holding Corp., 43 A.D.2d 948, 949, lv denied 34 N.Y.2d 515).
Mahoney, P.J., Mikoll, Crew III and Harvey, JJ., concur. Ordered that the judgment is reversed, on the law, and matter remitted to the Supreme Court for a new trial, with costs to abide the event.