Camouflaged Nail Trips Up Plaintiff Resulting in Summary Judgment on Labor Law § 241(6) Claim
Camouflage in nature is a defense mechanism used mainly to hide. On a construction site, it’s used to help plaintiffs with their Labor Law § 241(6) claims.
In Gervasi v. FSP 787 Seventh LLC, 2024 NY Slip Op 03135, plaintiff was employed as a journeyman carpenter on a construction site, and while walking across that site, tripped on a “concrete-colored” steel pin or nail embedded in a concrete floor. The nail blended in with the floor because of its color, but also extended approximately ½ inch above the floor. As a result, plaintiff alleged violations of, inter alia, Labor Law § 241(6), which was supported by Industrial Code § 23-1.7(e)(2) (regarding “sharp projections” that constitute tripping hazards).
After discovery, plaintiff moved for summary judgment and the Supreme Court, New York County granted plaintiff’s motion, as to Labor Law § 241(6). The Appellate Division, First Department affirmed the decision, holding that plaintiff established his prima facie burden as to the § 241(6) claim (as supported by § 23-1.7(e)(2)), because of the uncontroverted evidence that the steel pin or nail was a “sharp projection” and that it was “clearly defined or distinct” as contemplated by the Industrial Code.
Some of this language can appear confusing. When the Court references “sharp” they do not mean in the colloquial sense of “being able to cut”. Instead “sharp” is being used as an adjective to describe “projection” and references the nail protruding from the flat surface of the concrete. In addition, “clearly defined or distinct” can be misleading, as the nail was camouflaged with the concrete. Here, “clearly defined or distinct” means jutting out from the rest of the floor’s surface, and is not necessarily a reference to the visibility of the object in that strict sense.
The Gervasi decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
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