In Toussaint v. Port Authority of New York and New Jersey, the Court of Appeals was called upon to determine whether Industrial Code Section 23-9.9 (a), governing the use of power buggies on construction sites, sets forth a concrete specification sufficient to give rise to a non-delegable duty under Labor Law § 241(6) developed in Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-505 (1993). The Court ruled that it did not and reversed the lower court’s summary judgment decision in favor of the Plaintiff.
The action was commenced by Plaintiff Curby Toussaint, an employee of Skanska USA Civil Northeast, Inc., who was injured after being struck by a power buggy while operating a rebar-bending machine. The accident occurred at the World Trade Center Transportation Hub construction site owned by the Port Authority of New York and New Jersey (the Port Authority). All power buggies (small, self-powered vehicles operated by one person and used to move materials on construction sites, as defined by the Industrial Code) were owned and operated by contractors or subcontractors at the site.
On the day of the accident, an individual described as a “trained and properly designated operator” drove the buggy into the area near Plaintiff’s workstation. That operator got off the vehicle and a short time later another worker, who was not designated or trained to do so, drove the buggy, lost control, and crashed into plaintiff.
Plaintiff commenced this action against the Port Authority asserting claims under Labor Law § 200 and Labor Law § 241(6). Supreme Court, New York County denied the Port Authority summary judgment on the Labor Law § 241(6) claim, concluding that Industrial Code § 23-9.9 (a), which provides that “[n]o person other than a trained and competent operator designated by the employer shall operate a power buggy,” was sufficiently specific to support that claim. The Appellate Division, with two Justices dissenting, modified Supreme Court’s order by also granting plaintiff summary judgment on the Labor Law § 241(6) claim.
The Court of Appeals reversed plaintiff’s summary judgment award and dismissed the Labor Law § 241(6) claim by ruling that Ross and subsequent case law have repeatedly reaffirmed the rule that plaintiff must allege that defendant violated an Industrial Code regulation “that sets forth a specific standard of conduct and [is] not simply a recitation of common-law safety principles.” The Court determined that Industrial Code Section 23-9.9(a) did not satisfy that standard of asserting a “specific, positive command.”
Industrial Code Section 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,” and the Court determined that the “trained and competent operator” requirement of the provision “is general, as it lacks a specific requirement or standard of conduct.” The Court concluded that the additional direction that “trained and competent” individuals must also be “designated” did not transform the provision from a general standard of conduct to a “specific, positive command.” This ruling is similar to the ruling in Berg v. Albany Ladder Co., Inc., 40 AD3d 1282, 1285 (3d Dept. 2007), whereby the Third Department held that the Industrial Code provision mandating that “power-operated equipment . . . shall be operated only by trained, designated persons and all such equipment shall be operated in a safe manner at all times” was “no more than a restatement of common-law requirements and is insufficient to establish a nondelegable duty under Labor Law § 241(6).”
The dissent argued that the Ross decision was “error” and the majority fiercely countered by firmly establishing that the present holding should dispel any notion that Ross was somehow “eroded.” This ruling is not only important for defending cases invoking a violation of Industrial Code Section 23-9.9(a), but also matters where a plaintiff is relying upon a similarly “general” Industrial Code provision.
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You can read the Court's full decision here: https://nycourts.gov/ctapps/Decisions/2022/Mar22/16oopn22-Decision.pdf.
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