HUGO CARRERA V. WESTCHESTER TRIANGLE HOUSING DEVELOPMENT FUND CORP.

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