The question in this case is whether Industrial Code 23-9.9(a), which requires a power buggy on a construction site to be operated by a “trained and competent operator designated by the employer,” is sufficiently specific to create a nondelegable duty on builders to comply with that requirement.
Labor Law § 241(6) requires any contractor doing construction, demolition, or excavation work to maintain work areas that provide “reasonable and adequate protection and safety” to the people on the worksite. The scope of this safety measure is defined through regulations promulgated by the Commissioner of Labor and contained in part 23 the Industrial Code (i.e., Title 12 of the N.Y.C.R.R.).
In evaluating a Labor Law § 241(6) claim for violation of a provision of the Industrial Code, the Court of Appeals has distinguished between regulatory provisions that contain a “specific, positive command” and those that set forth only “general safety standards.” There are several consequences that result from designating a regulatory provision as either specific or general. For instance, a regulatory provision that is specific imposes a nondelegable duty on a defendant for worksite negligence, regardless of the defendant’s fault; a general regulatory provision does not impose a nondelegable duty.
This case involves the regulatory provision dealing with power buggies. Industrial Code 23-9.9(a) provides that “[n]o person other than a trained and competent operator designated by the employer shall operate a power buggy.” Here, plaintiff was injured when he was struck by a power buggy while working at the World Trade Center construction site. The buggy was being operated by an operating engineer on the worksite, who was “horse playing” and lost control of the buggy before it stuck plaintiff.
Plaintiff filed an action against the site’s owner, the Port Authority of New York and New Jersey, and the construction company that employed him, asserting a Labor Law § 241(6) claim predicated on defendants’ alleged violation of Industrial Code 23-9.9(a). Defendants moved for summary judgment, arguing that Industrial Code 23-9.9(a) was not sufficiently specific to give rise to a nondelegable duty. Supreme Court rejected that argument and concluded that fact questions existed as to liability on plaintiff’s Labor Law § 241(6) claim.
A divided panel of the First Department modified Supreme Court’s order. The majority agreed with Supreme Court that Industrial Code 23-9.9(a) was sufficiently specific. In the majority’s view, this conclusion was compelled by prior decisions, which found that regulatory language that allowed the operation of an excavation machine “only by designated persons” and the erection of scaffolding only by “designated persons” was sufficiently specific to impose a nondelegable duty. The majority, however, went further than Supreme Court and granted plaintiff summary judgment on liability. It found no dispute that the operating engineer was not designated to use the power buggy, and that his conduct was the proximate cause of plaintiff’s injuries.
Two judges dissented. The dissenters thought the case was controlled by a different decision, which held that a regulatory provision that required power equipment to “be operated only by trained, designated persons” was insufficiently specific to impose a nondelegable duty pursuant to Labor Law § 241(6). And the dissenters thought that Industrial Code 23-9.9(a) should only apply to injuries caused by someone designated to operate a power buggy. Otherwise, the dissenters reasoned, defendants might be exposed to liability “any time an unauthorized person on his own initiative or even a trespasser moved such an item of equipment and caused injuries.”
The First Department granted defendants leave to appeal to the Court of Appeals.
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