12 NYCRR 23-1.7

12 NYCRR §23-1.7 is a New York State regulation that coincides with Labor Law 241, seeks to protect workers on construction sites and hold contractors liable for the formers’ injuries.  Both the regulation and the statute focus on the sufficiency of scaffolding, protection from falling hazards and similar on site risks.  12 NYCRR § 23–1.7(e) focuses on tripping and other hazards in work areas and passageways, requiring contractors and property owners to ensure such areas are free of dirt, debris, sharp tools, and similar hazards.

In Torres v. Forest City Ratner Companies, LLC, 2011 WL 5579035 (2d Dept. 2011), the plaintiff, a sheet metal worker, was installing duct work for the construction project that was the subject of this litigation. When the plaintiff’s work was done for the day, he proceeded to exist through the only available route, where there was a “raw,” unhinged door on the floor lying on top of loose pipes. As the plaintiff stepped on the door, it rolled away from him, caused him to fall and allegedly sustain injuries.  The court found that the defendant contractor company failed to establish the absence of triable issues of fact as to whether the materials which caused the plaintiff’s injury were integral to the work being performed.  Further, the contractors failed to establish the absence of triable issues of fact regarding whether the door and loose pipes represented a “tripping or other hazard” as contemplated by the Industrial Code (12 NYCRR § 23–1.7(e) ).  Finally, the defendants failed to show the absence of a triable issue of fact as to whether the plaintiff was injured in a passageway.  Therefore, the defendant contractor was held liable for the injuries sustained by the plaintiff during his course of work.

Similarly, in Alvia v. Teman Elec. Contracting, Inc.,287 A.D.2d 421, 731 N.Y.S.2d 462 (2d Dept. 2001), plaintiff worker sued an electrical contractor on a construction project upon being injured in the course of his work.  In this case, however, the worker was employed as a “stripping foreman” to remove the wood used to hold the concrete casting in place. At the time of the accident, while stacking plywood, the worker’s leg fell into a hole in the floor and an electrical conduit pipe protruding from the floor subsequently struck and injured him.  The hole was uncovered, and no barricade around it. Defendant Teman Electrical Contracting, Inc. was the electrical subcontractor responsible for installation of the conduit pipes.

In Alivia the court referred to 12 NYCRR 23–1.7(e)(2), a regulation that requires working areas, such as floors, to be kept clear of debris and “scattered tools and materials…insofar as may be consistent with the work being performed”. It therefore found that that the plywood on which he tripped was not “debris” or “scattered materials” but was material used in the actual task he was performing. The regulation does not apply where the object that the worker tripped on was an integral part of the work he was performing.  Further, the court noted that 12 NYCRR 23–1 .7(e)(1) requires passageways to be kept clear of debris or other obstructions which may cause tripping. However, the worker in this case was working on an open floor, not in a passageway.  Therefore the contractor was not liable under this regulation.

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