We recently litigated in the New York Court of Appeals in the matter. Plaintiff was a painter and was allegedly injured while painting around an escalator. Heavy-duty plastic sheeting had been placed on the steps of the escalator to protect it from paint. Plaintiff allegedly slipped on the plastic sheeting and he pursued various Labor Law causes of action against the contractors and owner.
The parties filed summary judgment and the Supreme Court granted Plaintiff’s § 241(6) motion based on violations of two Industrial Code regulations: (1) Section 23-1.7(d) which states (“[e]mployers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing”); and (2) Section 23-1.7(e)(1), which states, (“[a]ll passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping.”)
The Appellate Division, First Department reversed and found that Plaintiff could not recover under Industrial Code § 23-1.7(d), prohibiting slipping hazards, because the plastic sheeting “does not constitute a foreign substance under the regulation.... Sensibly interpreted, the heavy-duty plastic covering is not similar in nature to the foreign substances listed in the regulation, i.e., ice, snow, water or grease.... Further, it is not disputed that the covering was intentionally placed on the escalator to protect it from paint. In other words, the covering was part of the staging conditions of the area plaintiff was tasked with painting, making it integral to his work.” The First Department found the defendants were not liable for a tripping hazard under section 23-1.7(e)(1) for the same reason, “namely that the plastic covering was an integral part of the work being performed,” and also because “the escalator was not serving as a ‘passageway’ but rather was a work area.”
The Court of Appeals reversed the First Department and found that Plaintiff satisfied the “textual” requirements of 23-1.7 (d): the escalator is clearly the type of work surface enumerated. Plaintiff also established that the plastic covering was not part of the escalator and this foreign substance created a slippery condition. The Court observed that the Appellate Division erred because the plastic covering was not a component of the escalator and was not necessary to the escalator’s functionality. Therefore, it was, by definition a substance foreign to the escalator. Thus, the use of some cover was integral to Plaintiffs’ assignment to paint around the escalator but that does not mean that any cover used—even one that was inherently slippery—was necessarily “integral,” particularly where a safer alternative would have accomplished the same goal.
This opinion signals that New York Courts will read the Industrial Code broadly at least as it pertains to “foreign substances” beyond “ice, snow, water or grease.” This decision also hints that courts may review whether a safer alternative would have accomplished the same goal at a construction site.