116 A.D.3d 585, 984 N.Y.S.2d 339 (Apr. 24, 2014)

At the time of his injury, the plaintiff and two coworkers were carrying a pipe on their shoulders. The plaintiff slipped on a muddy surface and tripped on a rock, which caused him to lose his ability to support the pipe. This caused a coworker to drop the pipe, which “jumped,” and hit the plaintiff on his ear, neck, and shoulder. The court dismissed the §240(1) cause of action “because [the] plaintiff’s injuries were not ‘the direct consequence of a failure to provide protection against a risk arising from a physically significant elevation differential.’” The court dismissed the §241(6) cause of action because the Industrial Codes were inapplicable. For example, the plaintiff was not in a “passageway” as required by 12 N.Y.C.R.R. 23-1.7(d), (e) and (f) and 23- 1.23(a). Also, the plaintiff did not trip over accumulated debris as required by 12 N.Y.C.R.R. 23-1.7(e)(2).

Practice Note: The application of various Industrial Codes is fact-specific and often requires an expert analysis of the application of the statutes.

Topics: Industrial Code Regulations; Expert Retention