Keith M. Andresen

In order to successfully invoke liability pursuant to Labor Law § 241(6), the plaintiff must plead and prove a violation of a specific conduct-regulating provision of the Industrial Code of the State of New York.  This statute imposes a non-delegable duty upon owners and contractors regardless of whether they exercise control. While the plaintiff does not have to prove actual negligence, they must show that a specific conduct-regulating provision of the Industrial Code was violated and that the violation constituted a departure from reasonable care and was a proximate cause of the accident. Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 503-55 (1993). In Mann v. Mezuyon, LLC, et al., 2026 WL 1462931, 2026 N.Y. Slip. Op. 03257 (Court of Appeals May 26, 2026), the plaintiff was struck by the boom of a nearby excavator and alleged a violation of Section 23-4.2(k) of the Industrial Code. This Section states: “[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged or falling from such equipment.” The Appellate Divisions were spilt as to whether section was sufficiently specific to support a 241(6) claim- the First, Third and Fourth Departments held it was not specific enough while the Second Department held otherwise. The Court of Appeals in Mann eliminated this split and held that the section is not specific enough. The court’s rationale was that the section did not provide any action to address the safety concern in the provision. This decision is significant because it eliminates Labor Law 241(6) liability based upon an alleged violation of Section 23-4.2(k) of the Industrial Code.