I was working on a concrete decking as part of a construction project. Carpenters had already built a form box [into which concrete is poured] around the decking. I was laying down re-bar [iron bars used to reinforce concrete which are installed before the concrete is poured on top of the re-bar] to prepare for the concrete decking. I slipped and fell on mud and crushed stone within the form where I was laying down re-bar. Do I have a case for my injuries?

Yes, you have a Worker’s Compensation claim. As explained in a prior post, you should notify your employer immediately. Worker’s Compensation will pay for your medical bills and some of your lost wages while you recover from your injuries.

Labor Law Claim

From the scope of the job you described, this seems like a large commercial site. Thus, there is probably a general contractor and an owner you could possible sue for your personal injuries. As explained in a prior post, general contractors and owners have a non-delegable duty under Labor Law § 241(6) to provide for a safe work area. As explained in that prior post, the injured worker must prove a specific violation of the Labor Code in New York to prove a claim under Labor Law § 241(6). There is at least one section of the Labor Code which might apply to this area. 12 NYCRR 23-1.7(e)(2) provides for safe conditions in work areas. 12 NYCRR 23-1.7(d) also mandates safe conditions in work areas, but this section is limited to elevated work areas.

Either one or both of these sections may apply to your situation. However, in a case like yours, there may be a defense to a Labor Law claim. The “integral to work” defense shields a general contractor and owner from liability.

Integral to Work

Even though the general contractor and owner have a duty to provide a safe work area, that duty does not extend to areas where the laborer is working with materials or in an area where the hazard is integral to (or created by) the task the worker is performing. Salazar v Novalex Contracting Corp., 18 NY3d 134, 936 NYS2d 624, 960 NE2d 393 (2011). Salazar slipped on wet concrete while leveling out wet concrete. The Labor Law was not applicable because the worker was in the area walking with boots in concrete so he could level out the area.

In your case, you fell in an area covered with rocks and dirt laying down re-bar in preparation for a concrete pour. The work you were tasked to do involved you walking on an area located outside covered with rocks and mud. Since your task put you in this position, the owner and general contractor would have an “integral to work” defense. Carrera v Westchester Triangle Housing Development Fund Corp., 116 AD3d 585, 984 NYS2d 339 (1st Dept 2014).

See also Fonck v New York, 198 AD3d 874, 156 NYS3d 308 (2d Dept 2021); Kefaloukis v Mayer, 197 AD3d 470, 148 NYS3d 906 (2d Dept 2021).

So you probably do not have a Labor Law claim based on the defense that your task was to walk in dirt and mud to lay out the re-bar. Therefore you probably cannot make a claim for this defect in this area.

By James Santner, Esq.

If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.