Boots v. Bette & Cring, LLC

DEVINE, J.

Collins & Collins, LLC, Buffalo (Charles H. Cobb of counsel), for appellants.

Stockton, Barker & Mead, LLP, Troy (John B. Paniccia of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, EGAN JR. and DEVINE, JJ.

DEVINE, J.

Appeal from an order of the Supreme Court (Ellis, J.), entered October 15, 2013 in Franklin County, which granted defendant's motion for summary judgment dismissing the complaint.

While replacing a window of a school building, plaintiff Peter Boots (hereinafter plaintiff) injured his left hand and wrist when the utility knife he was using malfunctioned. As a result, plaintiff and his spouse, derivatively, commenced this action against defendant, alleging common-law negligence and violations under Labor Law §§ 200, 240(1) and 241(6). Supreme Court granted defendant's motion for summary judgment dismissing the complaint. In their sole claim on appeal, plaintiffs now

assert that the court improperly dismissed their Labor Law § 241(6) cause of action.

General contractors have a nondelegable duty “to provide

reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations” set forth in the Industrial Code (Misicki v. Caradonna, 12 N.Y.3d 511, 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213 [2009] [internal quotation marks and citation omitted]; see Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343, 350, 670 N.Y.S.2d 816, 693 N.E.2d 1068 [1998] ). A viable claim pursuant to Labor Law § 241(6) “ must show the applicability of a specific provision of the Industrial Code to the relevant work, a violation of the regulation, and that such violation constituted causally related negligence” (Copp v. City of Elmira, 31 A.D.3d 899, 899, 819 N.Y.S.2d 167 [2006] ; see Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d 494, 504–505, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993] ). While contractors can be held vicariously liable under section 241(6), such liability depends upon whether the regulatory provision that was allegedly violated is a “ ‘specific, positive command’ ” (Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 504, 601 N.Y.S.2d 49, 618 N.E.2d 82, quoting Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 297, 405 N.Y.S.2d 630, 376 N.E.2d 1276 [1978] ), and not merely a declaration of a general safety standard (see Misicki v. Caradonna, 12 N.Y.3d at 515, 882 N.Y.S.2d 375, 909 N.E.2d 1213 ; Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 504–505, 601 N.Y.S.2d 49, 618 N.E.2d 82 ).

Plaintiffs allege in their bill of particulars that defendant violated 12 NYCRR 23–1.10(a), which states, in pertinent part, that unpowered hand tools with “[s]plit or loose tool handles shall not be used.” Notably, this regulatory provision does not merely impose a general duty to keep unpowered hand tools in a “safe,” “proper” or “adequate” condition (see e.g. Ross v. Curtis–Palmer Hydro–Elec. Co., 81 N.Y.2d at 502–506, 601 N.Y.S.2d 49, 618 N.E.2d 82 ), nor does it proscribe the usage of hand tools with “unsafe” or “defective” handles, but, rather, specifically prohibits the use of hand tools with “[s]plit or loose ... handles.”

Having determined that plaintiffs have asserted a violation of a regulatory provision that “ ‘sets forth a specific standard of conduct’ ” for general contractors and owners (Marshall v. Glenman Indus. & Commercial Contr. Corp., 117 A.D.3d 1124, 1126, 985 N.Y.S.2d 169 [2014], quoting St. Louis v. Town of N. Elba, 70 A.D.3d 1250, 1250, 894 N.Y.S.2d 587 [2010], affd. 16 N.Y.3d 411, 923 N.Y.S.2d 391, 947 N.E.2d 1169 [2011] ; see Hammond v. International Paper Co., 178 A.D.2d 798, 799, 577 N.Y.S.2d 526 [1991] ), thereby providing a predicate basis for a claim under Labor Law § 241(6), we are left to decide whether the regulation applies to the facts presented in this case. Plaintiff explained during his examination before trial that, while he was cutting a piece of plastic with a

utility knife, the locking mechanism that secures the retractable

blade was loose, causing the blade to break in half and cut plaintiff's wrist. Whether the dysfunctional locking mechanism can fairly be considered to be a “[s]plit or loose tool handle[ ]” is a question of law to be decided by the courts (see Szafranski v. Niagara Frontier Transp. Auth., 5 A.D.3d 1111, 1113, 773 N.Y.S.2d 332 [2004] ). A fair reading of the regulation upon which plaintiffs rely, however, does not compel us to conclude that the looseness of the locking mechanism—an internal component of the knife and not a visible or functional part of the handle itself—was what the Commissioner of Labor had contemplated in his promulgation of 12 NYCRR 23–1.10(a) (compare St. Louis v. Town of N. Elba, 16 N.Y.3d 411, 415–416, 923 N.Y.S.2d 391, 947 N.E.2d 1169 [2011] ). We are well aware that the Industrial Code “should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace” (id. at 416, 923 N.Y.S.2d 391, 947 N.E.2d 1169 ; accord Duffina v. County of Essex, 111 A.D.3d 1035, 1039, 974 N.Y.S.2d 645 [2013] ). However, while the regulation sets forth a strict prohibition against using tools that have loose or split handles, it makes no mention whatsoever of the locking mechanism found within a hand tool, and we are thus constrained to determine that it is inapplicable. Accordingly, plaintiffs are without a viable cause of action pursuant to Labor Law § 241(6).

ORDERED that the order is affirmed, with costs.

LAHTINEN, J.P., McCARTHY and EGAN JR., JJ., concur.

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