Question of Fact Keeps Plaintiff from Nailing § 241(6) Claim

You’ll recall that claims arising from Labor Law § 241(6) need to be predicated on a sufficiently specific Industrial Code section.  The following case illustrates Industrial Code (22 N.Y.C.R.R.) § 23-1.8(a), which states:

(a) Eye protection.  Approved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning, cutting operations or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes.    

In a recent decision, the Appellate Division, Second Department reversed a Supreme Court, Kings County decision that granted plaintiff’s motion for summary judgment as to his Labor Law § 241(6) claim, as predicated on a violation of Industrial Code § 23-1.8(a). 

In Chuqui v. Cong. Ahavas Tzooka V’Chesed, Inc., 2024 NY Slip Op 02166, plaintiff was allegedly injured while operating a nail gun to attach wood plates to a building roof, when debris from metal wire, to which nails were secured on the gun, flew off and hit his right eye.  The metal wire secured to the nails was from a “magazine” of nails that was loaded into the nail gun. 

Notably, the Second Department has not decided whether a plaintiff using a nail gun constitutes an “operation which may endanger the eyes.”

As the issue is unresolved by the Second Department, the Supreme Court, Kings County turned to the Fourth Department for precedent that established that the danger to the eyes is inherent in the use of a nail gun, and requires the protection mandated by § 23-1.8(a).  Relying on this precedent, it granted plaintiff’s motion for summary judgment as to his § 241(6) claim. 

However, the Second Department determined that plaintiff failed to eliminate all triable issues of fact, namely, whether at the time of the accident he was engaged in work that “may endanger the eyes” as to require the use of eye protection under § 23-1.8(a).  Ultimately, the use of a nail gun as an activity contemplated under this industrial code remains a question of fact for the jury to consider, as the Second Department refused to affirmatively resolve the issue. 

We note, the lower Court adopted the Fourth Department’s precedent in Quiros v. Five Star Improvements, Inc., 134 A.D.3d 1493 (4th Dep’t 2015), which lower Court ruling was then reversed by the Second Department.

The Chuqui decision can be found here.

The Fourth Department decision, Quiros, relied on by the lower Court can be found here.

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

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