Summary
In Stasierowski, the plaintiff was injured while carrying a bucket of hot tar, and slipped on "a stringer of hot tar that blew from a spigot."
Summary of this case from Reavely v. Yonkers Raceway ProgramsOpinion
February 10, 1999
Appeal from Order of Supreme Court, Erie County, Glownia, J. — Summary Judgment.
Present — Denman, P. J., Green, Hayes, Wisner and Callahan, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in granting that part of defendants' motion for summary judgment dismissing the Labor Law § 241 Lab. (6) cause of action insofar as it is premised on an alleged violation of 12 NYCRR 23-1.7 (d). That regulation directs employers not to "suffer or permit any employee to use a[n] * * * elevated work surface which is in a slippery condition" and imposes an affirmative duty on employers to provide safe footing by removing, sanding or covering "any * * * foreign substance which may cause slippery footing". Plaintiff was injured while carrying an open bucket of hot tar to an application area on a roof. Although defendants met their initial burden, plaintiff raised an issue of fact whether he slipped on a stringer of hot tar that blew from a spigot. Contrary to defendants' contention, a stringer of hot tar in this context is a "foreign substance" within the meaning of the regulation and not an integral part of the roof ( cf., Gist v. Central School Dist. No. 1, 234 A.D.2d 976, 977).
Also without merit is the contention of defendants that they are not liable because they had no actual or constructive notice of the alleged hazard and a reasonable opportunity to cure it. "Since an owner or general contractor's vicarious liability under section 241 Lab. (6) is not dependent on its personal capacity to prevent or cure a dangerous condition, the absence of actual or constructive notice sufficient to prevent or cure [is] irrelevant to the imposition of Labor Law § 241 Lab. (6) liability" ( Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 352).
The court erred in denying that part of defendants' motion for summary judgment dismissing the Labor Law § 241 Lab. (6) cause of action insofar as it is premised on an alleged violation of 12 NYCRR 23-1.24 (d), which regulates "[h]ot roofing material transporters, also known as hot luggers." Despite the conflicting expert opinions concerning the applicability of 12 NYCRR 23-1.24 (d), whether the open bucket that plaintiff was carrying was subject to that regulation is a question of law for the court to resolve ( see, Rodriguez v. New York City Hous. Auth., 209 A.D.2d 260, 260-261; Ross v. Manhattan Chelsea Assocs., 194 A.D.2d 332, 338). Although carrying hot tar in an open bucket may be an inherently dangerous activity, it is not prohibited by 12 NYCRR 23-1.24 (d).
We therefore modify the order by denying in part defendants' motion and reinstating the Labor Law § 241 Lab. (6) cause of action insofar as it is premised on an alleged violation of 12 NYCRR 23-1.7 (d) and by granting in part defendants' motion and dismissing that cause of action insofar as it is premised on an alleged violation of 12 NYCRR 23-1.24 (d).