July 27, 2023 | 1 minute read

“Slipped” v “Tripped”: Plaintiff's Labor Law Section 241(6) Cause of Action’s Dismissal Affirmed

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Adeel Jamaluddin

Of Counsel

Get in touch

Adeel Jamaluddin

Of Counsel

The Appellate Division, Second Department, in Dyszkiewicz v City of New York, 2023 NY Slip Op 03769, recently affirmed the dismissal of the plaintiff's cause of action under Labor Law Section 241(6), which was predicated upon violations of NYS Industrial Code 23-1.7(e). The Court found that the evidence established that the plaintiff slipped, not tripped. The distinction was crucial under the Industrial Code provision the plaintiff relied upon. Under that provision, 23-1.7(e), workers are protected against tripping hazards, not slipping hazards. Since the provision did not apply to the facts of the case, the cause of action predicated upon that provision was dismissed.

The decision provides an excellent example of why deposition testimony is imperative in all Labor Law matters. By establishing at the deposition that the plaintiff slipped, not tripped, the defense was able to secure a dismissal of the Section 241(6) cause of action predicated upon 23-1.7(e).

It is essential that the defense counsel adequately prepares for a deposition by gathering all relevant evidence, including accident reports, medical records, photographs, etc., and uses that evidence to formulate a defense strategy.

The Supreme Court properly granted defendants' motion which was for summary judgment dismissing so much of the cause of action alleging a violation of Labor Law § 241(6) as was predicated upon violations of 12 NYCRR 23-1.7(e) and 23-2.1(b). "To establish liability under Labor Law § 241(6), a plaintiff or a claimant must demonstrate that his [or her] injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case" (Zaino v Rogers, 153 AD3d 763, 764 [internal quotation marks omitted]). Here, the defendants established, prima facie, that 12 NYCRR 23-1.7(e)(1) and (e)(2), which protect workers from tripping hazards, are inapplicable to the facts of this case, since the accident was the result of a slipping hazard, not a tripping hazard, as the plaintiff testified at his deposition that he "slipped".