Mann v. Mezuyon, LLC: 12 NYCRR 23-4.2 (k) Is Too General to Predicate Labor Law § 241 (6) Vicarious Liability

1. Introduction

Case: Mann v Mezuyon, LLC, 2026 NY Slip Op 03257 (Ct App May 26, 2026).
Parties: Plaintiff (estate of William Mann, a Mayrich Construction Corp. driller) v. Mezuyon, LLC (site owner). Mayrich Construction Corp. appears as a third-party respondent.
Factual setting: A Manhattan excavation and blasting job with multiple drilling rigs and excavators operating simultaneously. Mann’s drilling rig malfunctioned; during troubleshooting, an excavator’s rotation allegedly struck Mann.

Core legal issue: Whether Industrial Code § 23-4.2 (k) (12 NYCRR 23-4.2 [k])—providing that “Persons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment”—is sufficiently specific to serve as a predicate for vicarious (nondelegable-duty) liability under Labor Law § 241 (6) against an owner who did not supervise or control the injury-producing work.

Procedural posture: Supreme Court allowed amendment to add § 23-4.2 (k), but ultimately the claim was dismissed; the Appellate Division affirmed. The Court of Appeals granted leave and affirmed.

2. Summary of the Opinion

The Court of Appeals held that 12 NYCRR 23-4.2 (k) is not sufficiently specific to support a Labor Law § 241 (6) claim. Because Mezuyon did not control or direct Mann’s work, liability could attach only if § 241 (6) imposed a nondelegable duty via a violation of a sufficiently concrete Industrial Code command. The Court concluded § 23-4.2 (k) states a broad, general safety prohibition—without concrete, operational directives—so it cannot predicate vicarious liability under § 241 (6).

Dissent (Chief Judge Wilson): Argued § 23-4.2 (k) is a specific “keep away” command that goes beyond common-law negligence and should qualify; contended the majority introduced an overly rigid specificity requirement and failed to harmonize § 23-4.2 (k) with § 23-9.5 (c).

3. Analysis

3.1. Precedents Cited (and How They Shaped the Result)

Foundational “specificity” framework

• Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993).
  Role in Mann: Ross supplies the governing architecture: Labor Law § 241 (6) is “hybrid,” and vicarious liability exists only for Industrial Code provisions containing “specific, positive command[s],” not broad common-law-like safety standards. The majority repeatedly invokes Ross’s warning that allowing broad standards would “seriously distort” the Labor Law scheme and make Labor Law § 200’s control-based limits “all but superfluous.”
• Misicki v Caradonna, 12 NY3d 511 (2009).
  Role in Mann: Reinforces that the regulation must “mandate compliance with concrete specifications” and that courts assess specificity by examining regulatory text “without reference to the underlying facts.”
• Morris v Pavarini Const., 9 NY3d 47 (2007).
  Role in Mann: Used both for (a) the point that an owner not directing work is liable only if § 241 (6) nondelegable duty applies, and (b) an example of a sufficiently concrete command (formwork must be “braced or tied together”).
• Toussaint v Port Auth. of N.Y. & N.J., 38 NY3d 89 (2022).
  Role in Mann: The majority treats Toussaint as the closest analogue: a rule requiring a “trained and competent operator designated by the employer” was held too general. Mann extends the logic, reasoning § 23-4.2 (k) is even broader because it provides no specific compliance action at all—only a generalized prohibition.

Examples distinguishing “concrete specification” from “general safety standard”

• Rizzuto v L.A. Wenger Constr. Co., 91 NY2d 343 (1998).
  Role in Mann: The majority uses Rizzuto to illustrate what qualifies: the regulation not only forbade permitting work on slippery surfaces but also required specific remediation (remove/sand/cover). The dissent uses Rizzuto in the opposite direction, emphasizing that “shall not suffer or permit” language can be sufficiently concrete.
• Gasques v State, 15 NY3d 869 (2010).
  Role in Mann: Cited for the proposition that terms like “good repair” and “safe working condition” are too general; supports the majority’s view that broad evaluative terms do not supply a “specific standard of conduct.”
• St. Louis v Town of N. Elba, 16 NY3d 411 (2011).
  Role in Mann: Supplies the interpretive admonition that the Industrial Code should be “sensibly interpreted and applied” to protect workers—invoked by both sides, but the majority uses it within Ross’s limiting principle.
• Bauer v Female Academy of Sacred Heart, 97 NY2d 445 (2002), citing Long v Forest-Fehlhaber, 55 NY2d 154 (1982).
  Role in Mann: Supports the majority’s concern that treating § 23-4.2 (k) as a predicate would drift toward strict liability, which § 241 (6) does not impose.

Regulatory/statutory interpretation canons

• Cruz v Banks, â​â​ NY3d â​â​ , 2026 NY Slip Op 00821 (2026).
  Role in Mann: Recently reaffirmed that administrative regulations are construed like statutes; the majority uses this to justify applying familiar canons to Industrial Code text.
• Nostrom v A.W. Chesterton Co., 15 NY3d 502 (2010).
  Role in Mann: Cited for the proposition that the Industrial Code is subject to statutory construction principles.

Appellate Division split acknowledged and resolved

The Court highlights a Departmental split: Sparendam v Lehr Constr. Corp., 24 AD3d 388 (1st Dept 2005), Mohamed v City of Watervliet, 106 AD3d 1244 (3d Dept 2013), and Vicki v City of Niagara Falls, 215 AD3d 1285 (4th Dept 2023) held § 23-4.2 (k) insufficiently specific; the Second Department (e.g., Zaino v Rogers, 153 AD3d 763 [2d Dept 2017]) held it sufficiently specific. Mann adopts the First/Third/Fourth Departments’ approach and rejects Zaino’s conclusion.

3.2. Legal Reasoning

1. Owner-control is absent; only vicarious liability path matters.
   The majority starts from the premise that Mezuyon did not “control or direct” Mann’s work. Under Morris v Pavarini Const., liability thus turns on whether § 241 (6) imposes a nondelegable duty through a qualifying Industrial Code predicate.
2. § 241 (6) vicarious liability is confined to “concrete specifications.”
   Using Ross v Curtis-Palmer Hydro-Elec. Co., Toussaint v Port Auth. of N.Y. & N.J., and Misicki v Caradonna, the Court reiterates that general safety exhortations cannot expand § 241 (6) into a substitute for negligence or § 200 claims.
3. The Court articulates an operational requirement: a qualifying regulation identifies a safety concern and commands a specific compliance action.
   The majority states that a sufficiently specific provision must “both identify a specific safety concern and command a specific action required to address that concern,” contrasting regulations like the remediation-oriented rule in Rizzuto v L.A. Wenger Constr. Co. and the bracing requirement in Morris v Pavarini Const. with more evaluative standards like Gasques v State.
4. § 23-4.2 (k) fails because it supplies no concrete compliance directions—only a broad prohibition.
   The Court treats the terms “area” and “endangered” as hallmark generalities and stresses what the regulation does not specify: no minimum distance, no defined hazard zone, no listed protective measures, and no clear guidance for how owners/contractors should comply beyond avoiding exposure in the abstract. This places § 23-4.2 (k) on the “common-law safety principle” side of the Ross line.
5. Avoidance of strict-liability drift.
   The majority answers the dissent by warning that an expansive reading would effectively impose strict liability for excavator-related hazards across a worksite, contrary to Bauer v Female Academy of Sacred Heart (and Long v Forest-Fehlhaber) and inconsistent with the § 241 (6) structure.
6. Rejection of “harmonization-as-specificity.”
   The dissent attempts to harmonize § 23-4.2 (k) with § 23-9.5 (c) to show § 23-4.2 (k) has determinate meaning (excluding everyone except certain crews from danger zones). The majority’s response (including footnote discussion) is that a generally worded provision cannot be converted into a “concrete specification” by importing detail from a separate regulation; Ross asks whether the provision “by itself” can ground the nondelegable duty.

3.3. Impact

• Clarifies and narrows § 241 (6) predicates in excavation-equipment cases.
  After Mann, plaintiffs cannot rely on § 23-4.2 (k) alone to impose vicarious liability on non-supervising owners/contractors; they must plead and prove a violation of a different Industrial Code provision with concrete compliance content (or proceed under negligence/§ 200 theories requiring control/supervision or other fault-based elements).
• Resolves an inter-Department split.
  The Court effectively rejects the Second Department’s approach reflected in Zaino v Rogers, aligning statewide practice with the First/Third/Fourth Departments (e.g., Sparendam v Lehr Constr. Corp., Mohamed v City of Watervliet, Vicki v City of Niagara Falls).
• Increases pleading and motion practice focus on “what, exactly, did the rule require?”
  Mann emphasizes that general “keep workers safe” language—even if hazard-specific (excavation equipment)—is insufficient without concrete operational direction. Expect heightened scrutiny at summary judgment over whether a cited regulation contains measurable/implementable compliance requirements.
• Practical consequence for site owners and general contractors.
  Owners/general contractors may face reduced § 241 (6) exposure for excavator “swing radius” and similar hazards unless plaintiffs identify a more precise Industrial Code predicate; however, this does not eliminate potential exposure under other provisions or under negligence/§ 200 where the necessary elements exist.
• Doctrinal tension remains visible.
  The dissent underscores ongoing dissatisfaction with the Ross “specific vs general” framework and its administrability, forecasting continued litigation over borderline regulations and continued calls for legislative clarification.

4. Complex Concepts Simplified

Labor Law § 241 (6) as a “hybrid” statute

The first sentence expresses a general duty of safe construction areas (similar to negligence principles). The second sentence makes compliance with certain Industrial Code rules a nondelegable duty, meaning owners/contractors can be liable even without supervising the work—but only when the violated rule is sufficiently specific.

Nondelegable duty / vicarious liability

Liability imposed on owners/contractors for others’ conduct (e.g., subcontractors) without proof the owner personally controlled the work—available under § 241 (6) only when a qualifying Industrial Code “concrete specification” is violated.

“Concrete specification” vs “general safety standard”

A concrete specification tells regulated parties exactly what to do (e.g., “braced or tied together”; remove/sand/cover a slippery substance). A general safety standard states an overall goal (avoid danger; maintain safe conditions) but leaves the means undefined; Mann holds § 23-4.2 (k) falls into this category.

Why courts reject “strict liability” under § 241 (6)

Strict liability would mean an owner automatically pays for an injury whenever a regulated hazard is involved, regardless of fault or practical ability to prevent it. The Court reiterates that § 241 (6) does not create strict liability; it creates liability tied to violating qualifying, specific regulatory commands.

5. Conclusion

Mann v Mezuyon, LLC establishes that 12 NYCRR 23-4.2 (k) is too broad and nonspecific to serve as a predicate for Labor Law § 241 (6) vicarious liability. The majority reinforces the Ross line between concrete, operational regulatory commands (which can impose a nondelegable duty) and general workplace-safety prohibitions (which cannot). While the dissent argues § 23-4.2 (k) is a specific “keep away” directive and criticizes the workability of Ross, the controlling rule after Mann is clear: for § 241 (6) claims against non-supervising owners/contractors, plaintiffs must rely on an Industrial Code provision that itself supplies concrete compliance specifications, not a generalized danger-avoidance mandate.