Court of Appeals Rejects “Which of These Is Not Like the Others” Argument

In traditional mob movies, when someone walks into a room with plastic covering the floor it’s never a good sign.  A recent Court of Appeals decision shows us that it’s not great on the floor at a construction site, either. 

In a recent decision, the Court of Appeals overturned an Appellate Division, Second Department decision that reversed a Supreme Court, New York County decision that granted plaintiff’s motion for summary judgment as to his Labor Law § 241(6) cause of action, which was predicated, inter alia, on a violation of Industrial Code (12 N.Y.C.R.R.) § 23-1.7(d) and (e)(1).

Factual History

In Bazdaric v. Almah Partners, LLC (2024 NY Slip Op 00847), plaintiff alleged that he slipped and fell on a plastic covering on an escalator in an area he was assigned to paint.  According to plaintiff, he complained to his foreman about the plastic covering on the escalator, but in response the foreman cursed at him and told him to continue to do the job with the plastic on the steps of the escalator.  Plaintiff then proceeded to walk to the middle of the escalator, which he slipped and fell on the plastic covering, impacting his body on the metal of the escalator. 

Procedural History

In support of his argument before the lower Court, plaintiff relied on his testimony, including his assertion that drop cloths were available on the premises.  Testimony was also submitted from defendant, that acknowledged that plastic was the wrong type of covering for escalator steps, and that wood or drop cloths would have been better for the task. Defendants cross-moved, and in support of their motion and opposition to plaintiff’s motion, argued that § 23-1.7(d) and (e)(1) are inapplicable and that the plastic covering was integral to the work.  The Supreme Court, New York County granted plaintiff’s motion as to Labor Law § 241(6), as predicated on § 23-1.7(d) and (e)(1). 

The Appellate Division, Second Department reversed the Supreme Court, and granted the defendant’s cross motion.  In its decision the Second Department applied the maxim “ejusdem generis”[1], to conclude that the plastic covering was not a foreign substance under § 23-1.7(d) because “plastic” was not similar to the substances enumerated in the statute, i.e., ice, snow, water or grease.  The majority also concluded that plaintiff’s claim was barred because the plastic sheeting was “integral to the work”. Plaintiff appealed, and before proceeding, we note that plaintiff did not argue for liability under section § 23-1.7(e)(1) before the Court of Appeals.

Court of Appeals Analysis

Relevant to the Court of Appeals discussion are the following sections of New York’s Industrial Code:

12 N.Y.C.R.R. § 23-1.7(d) states: 

Slipping hazards.  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.

The Court of Appeals’ analysis as to § 23-1.7(d) began with the determination that it is sufficiently specific to maintain a Labor Law § 241(6) action.  Next, plaintiff is required to show (1) that § 23-1.7(d) is applicable under the circumstances; (2) defendants violated that section’s specific commands; (3) this violation alone, or considered with other undisputed factual evidence, constitutes negligence; and (4) the violation caused plaintiff’s injuries. 

Plaintiff’s Arguments

In short, the Court of Appeals held that plaintiff satisfied his burden by establishing he was assigned to paint in an area where the escalator was covered with a slippery plastic covering, he informed his supervisor that plastic was not appropriate for the paint job, he slipped and fell as he started his task in the middle of the escalator, and was injured as a result.  Further, plaintiff submitted corroborating evidence from the defendant that the plastic was the wrong type of covering for the escalator steps, and that after plaintiff’s accident, the plastic was removed and not used again.  The defendants further conceded in their opposition that the plastic was “admittedly a poor choice for the purpose it was used” and that plaintiff did slip on the plastic covering. 

Defendant’s Arguments

Defendant’s opposition focused on two main points: (1) that the plastic was not a “foreign substance” within the meaning of the statute, or specifically enumerated in the statute, and (2) that the plastic was integral to the work, which would place the plastic covering outside the purview of the protections of Labor Law § 241(6). 

“Plastic is not a foreign substance.”

As to their foreign substance argument, defendant maintained that plastic is not a “foreign substance” contemplated by the statute due to the fact that is specifically not mentioned, and is unlike the substances enumerated in the statute itself.  The Court of Appeals rejected this argument, holding that whether a particular covering was a foreign substance for the purposes of § 23-1.7(d) depends on its relation to the area where plaintiff was assigned to work, and the covering’s uniform properties.  As to the work area, the plastic covering was not a component of the escalator and was not necessary to the escalator’s functionality, and is therefore, by definition[2], foreign to the escalator. 

The Court of Appeals also noted that while plastic is not specifically enumerated in § 23-1.7(d), the other enumerated items, namely ice, snow, water and grease, are, by their nature, the types of material that are slippery when in contact with an area where someone walks, and, when present, make it difficult work in the area safely. The plastic covering in this matter was similarly slippery, and plaintiff could not traverse it without risking a fall, meaning that it accords with the text of the industrial code, and achieves the section’s specific purpose of protecting workers against slipping hazards.

“Plastic was integral to the work and not actionable.”

The Court of Appeals then turned to defendant’s argument that the plastic covering was integral to the work, and therefore they cannot be liable for plaintiff’s fall and injuries under Labor Law § 241(6).

The “integral to the work” argument recognizes that certain work assignments are, by their nature, dangerous, but still permissible, and that the particular commands of the Industrial Code may not apply if they would make it impossible to conduct the work.  The Court of Appeals gave an example of abiding by an industrial code section requiring the covering of a hole or hazardous opening to protect against falling hazards where the work required the subject hole or hazardous opening to be filled.  The industrial code section requiring the hole to be covered would make the work impossible. 

As to defendant’s “integral to the work” argument in this matter, the Court of Appeals acknowledged that a covering was required to prevent falling paint from potentially damaging the subject escalator, and to prevent the work area from becoming slippery.  However, that does not automatically translate that any covering was “integral to the work,” especially in this case, where a safer alternative from the plastic would have accomplished the same goal.  By creating the slippery condition in the workspace, the plastic covering per se was not integral to the work, and not only a poor choice of material, but an inherently dangerous one. 

There you have it – a well-written opinion from the Court of Appeals, the highest court in the State of New York, telling us that plastic is, indeed, slippery. 

The Bazdaric decision can be found here.

For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.

This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers.  This publication is in no way intended to provide legal advice or to create an attorney-client relationship.  All Rights Reserved.  This article may not be reprinted without the express written permission of McCormick & Priore, P.C.

[1] From Latin, meaning “of the same kind”. 

[2] The Court of Appeals cites Merriam-Webster’s definition of the words “foreign” meaning “not normally found in an area or part” and “substance” meaning “physical material from which something is made or which has a discrete existence.”