March 1, 2024

Slippery Slope: NY Court of Appeals Expands the Scope of Slipping Hazards

The New York Court of Appeals recently expanded the scope of protection afforded under Labor Law 241(6) by holding that a plastic covering could be considered a “foreign substance” under Industrial Code Section 23-1.7(d). The Court also held that the plastic covering was not integral to the work since the defendant created an “avoidable danger.” This is an unfavorable decision for defendants because it increases the likelihood of liability for owners, contractors, and their agents in cases arising from construction site accidents. 

In Bazdaric v. Almah Partners LLC, 2024 NY Slip Op 00847 (decided February 20, 2024; Decision), the plaintiff, a painter on a renovation project, was injured after slipping on an unsecured plastic covering on an escalator in an area he was assigned to paint. The plaintiff testified that he complained to his foreman about the unsecured covering to no avail and that drop cloths were available on the premises. The general contractor’s superintendent testified that the plastic was the wrong type of covering for the escalator steps and that if he had seen it before the plaintiff’s fall, he would have directed it be replaced. The superintendent also testified that drop cloths were used at the site and were less slippery than the plastic used. After the fall, the superintendent directed that the plastic covering be removed, and it was removed right away.    

The Appellate Division, in a 3-2 split decision, granted the defendants’ motions and reversed the lower court, holding that the plastic covering was not a “foreign substance” under Industrial Code Section 23-1.7 (d) 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 plaintiff’s claim was barred because the plastic covering was integral to the work. The Court of Appeals reversed, finding a violation of Industrial Code Section 23-1.7(d), and granted the plaintiff’s summary judgment on his Labor Law § 241 (6) claim.  

Labor Law § 241 (6) imposes statutory liability upon property owners, contractors, and their agents for injury claims arising from construction, demolition, or excavation operations. A Labor Law § 241 (6) claim must be premised upon a violation of a provision of the New York State Industrial Code which imposes specific safety standards. As is relevant to the Bazdaric case, 12 NYCRR 23-1.7 (d), “General Hazards, slipping hazards,” provides:  

“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.”  

In dicta, the Court of Appeals held that the covering was a foreign substance because it was not a component of the escalator and was not necessary for the escalator to function. The covering’s properties were also the type encompassed within 12 NYCRR 23-1.7 (d) because the items preceding “foreign substance” were also types of material that were slippery when in contact with an area where a person walks, and when present, would make it difficult to use the work area safely.    

The Court of Appeals further reasoned that the “integral to work” doctrine recognizes that certain work assignments are, by their nature, dangerous but still permissible, and the particular commands of the Industrial Code may not apply if they would make it impossible to conduct the work. However, if preventive measures would not make it impossible to complete the work, this doctrine does not apply. Therefore, the Court concluded that standing on a stopped escalator while painting required the steps to be covered to prevent the paint from damaging the escalator and the area from becoming slippery. However, there were clearly other, safer options to cover the escalator. Thus, the integral to the work defense “applies only when the dangerous condition is inherent to the task at hand” but not where the defendant created an avoidable danger.  

KK Takeaways  

The Court is willing to take an expansive reading of the Industrial Code as it pertains to “foreign substances” and include any slippery substance or object, even if not akin to those items specifically listed in the provision, i.e., ice, snow, water, and grease. Owners, contractors, and their agents should be mindful of any objects being utilized on site that may be covering a surface that workers may have to traverse (including those placed by subcontractors) because if they are foreign to the location and result in a slippery surface, they may give rise to liability under Labor Law 241(6). This is particularly so if there are safer, less slippery alternatives. Additionally, the “integral to the work” defense will not apply if a defendant creates an “avoidable” danger. Thus, defendants and employers cannot be incentivized to simply utilize “any means of accomplishing a task, even if it is the most dangerous.” This narrows a commonly utilized defense in Labor Law 241(6) cases. 

Your Legal Partners: Navigating New York Labor Law Together 

In the dynamic realm of New York labor law, staying abreast of recent judicial interpretations is paramount to effectively navigate the intricacies of insurance defense. The recent decision by the New York Court of Appeals, expanding the purview of slipping hazards, underscores the evolving nature of legal precedents in our field. For insurance adjusters and executives seeking clarity amidst these changes, I extend an invitation to connect with me, Jessica Clark, Esquire, and my esteemed colleague, David Henry, Esquire. With our collective expertise in insurance defense law and a nuanced grasp of New York labor statutes, we are committed to providing tailored guidance to address your unique challenges. Whether you’re grappling with current claims or preparing for potential liabilities, we stand ready to offer strategic counsel and steadfast advocacy. Your peace of mind begins with a simple call to our dedicated team. 

Jessica A. Clark, Esq.
Partner/Business Unit Leader, General Liability & Third-Party Insurance Defense
Kelley Kronenberg-New York, NY
(845) 306-7867
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David S. Henry, Esq.
Chair, General Liability and Transportation Division
Kelley Kronenberg-Fort Lauderdale, FL.
(954) 370-9970
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