New York’s highest court has put contractors and property owners on notice that they are responsible for slippery surfaces caused by substances that might be very different than the substances they typically worry about as creating a slip and fall hazard.
In a recent ruling involving a fall caused by a plastic covering placed over an escalator to protect it from paint drippings, the Court of Appeals pointed out that the “foreign substance” does not have to be of the same type as “ice, snow, water and grease” that are specifically cited in the Industrial Code, but may encompass a substance that is foreign to the work being done and that has a similar slippery effect as ice, snow, water or grease.
The relevant section of New York’s Industrial Code states: “Employers 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.”
Plaintiffs Srecko Bazdaric and his spouse sued for damages after he suffered disabling injuries at a renovation project worksite when he slipped on a plastic covering on an escalator in an area he was assigned to paint. The injuries left him unable to work. The couple alleged, among other things, violations of Labor Law under various sections of the Industrial Code against the owners of the premises where the injury occurred and the general contractor that hired the subcontractor that employed Bazdaric as a painter on the project.
The owners and general contractor defendants sought to dismiss the Labor Law cause of action, arguing that the plastic covering was integral to the work. They also argued that Bazdaric was at fault, relying on an affidavit from the foreman that Bazdaric placed and used the plastic covering even though canvas drop cloths were available, a characterization of the events Bazdaric denied. Bazdaric said he had in fact complained about the plastic being unsafe but was told to work on it anyway.
A state Supreme Court granted the Bazdarics summary judgment on the Labor Law cause of action but then a divided Appellate Division reversed and granted the defendants summary judgment, dismissing the Labor Law cause of action. The court majority concluded that the plastic covering was not a foreign substance under the code because it was “not similar in nature to the foreign substances listed in the regulation, i.e., ice, snow, water, or grease.” The majority also concluded that the Bazdarics’ claim was barred because the plastic covering was integral to the work.
The Court of Appeals heard the Bazdarics’ appeal and reversed the Appellate Division. The high court found the general contractor violated the Industrial Code and was thus liable under the state’s Labor Law for Bazdaric’s injuries.
The Court of Appeals explained that the plastic covering qualified as a foreign substance since it was not integral to either the escalator or to the painting contractor’s work or work area and because there were safer alternatives such as drop cloths that could have been used to cover the escalator.
Bazdaric asserted that the contractor’s own superintendent acknowledged that the plastic was the wrong type of covering for the escalator steps and had he seen it before the fall, he would have replaced it with a safer covering. The superintendent also admitted that drop cloths were in use at this site, and that in his experience drop cloths are less slippery than plastic. After the painter’s fall, the superintendent directed that the plastic covering be removed, and “it was removed right away” and “wasn’t used anymore.”
The Court of Appeals emphasized that the Industrial Code should be “sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace.”
The court noted that the catchall reference to “other foreign substance” includes those substances that share a quality common to ice, snow, water and grease in that they are slippery. The plastic covering qualifies as it made the work area slippery.
The court said the plastic covering was foreign because it was not a component of the escalator and was not necessary to the escalator’s functionality. “Quite the opposite, as it would have been impossible to operate the escalator if covered with plastic. Therefore, it was, by definition a substance foreign to the escalator,” the court said.
The high court also dismissed the argument that the plastic covering was “integral to the work.” Here, the court noted, the dangerous condition was not integral to the work but was actually created by the contractor using a covering that was inherently slippery and was not integral, especially given that safer alternatives were available. “A contrary holding would absolve employers of liability for using any means of accomplishing a task, even if it is the most dangerous,” the opinion states.
The opinion, written by Judge Jenny Rivera, concluded that the Bazdarics are entitled to summary judgment as to liability on their Labor Law cause of action for workplace injuries because they established that the covering was a slipping hazard that the defendants failed to remove in violation of Industrial Code.
Topics New York
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