Salazar v. Novalex Contracting Corp., et al., 2011 NY Slip Op 08446 (Nov. 21, 2011) illustrates the “common sense approach” that must be employed when analyzing Labor Law 240(1) and 241(6) claims.
P and his fellow workmen were directed to pour and spread concrete over the floor of a basement which contained trenches into which pipes were to be laid. Workmen poured wet concrete onto the floor, where P and others “pulled” the concrete to ensure that the floor remained level. P was injured after he stepped into a trench that was partially filled with concrete, while walking backwards across the floor to “pull” the concrete. There was no railing, barricade, or cover around or over the trench into which P fell.
No Labor Law 240(1) Liability
“Here, the installation of a protective device of the kind that Salazar posits … would have been contrary to the objectives of the work plan in the basement. Salazar testified that he was directed to pour and spread concrete over the entire basement floor, a task that included filling the trenches. Put simply, it would be illogical to require an owner or general contractor to place a protective cover over, or otherwise barricade, a three-or four-foot-deep hole when the very goal of the work is to fill that hole with concrete. Moreover, the record is clear that the purpose of the work here was to lay concrete over the entire basement. Since the liquid concrete would necessarily fill the trench and pour out over the surrounding floor areas, it would be impractical and contrary to the very work at hand to cover the area where the concrete was being spread, particularly since the settling of concrete requires that the work of leveling be done with celerity. Given that Labor Law § 240 (1) should be construed with a common sense approach to the realities of the workplace at issue, defendants are entitled to summary judgment dismissing that claim.” (Emphasis added.)
No Labor Law 241(6) Liability
D was also entitled to summary judgment on P’s 241(6) claim – which was predicated on a violation of 12 NYCRR 23-1.7(b)(1)(i) – for similar reasons. The identified regulation states that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part.” This regulation “cannot be reasonably interpreted to apply to a case like this one, where covering the opening in question would have been inconsistent with filling it, an integral part of the job.”