In New York, a Labor Law slip and fall on a construction site may entitle you to compensation beyond standard workers’ compensation benefits.
I slipped and fell on ice while I was carrying my tools. We had to work outside because there was a rush on the job and the contractor was up against a deadline. Unfortunately I badly injured my back. I am still out of work. What are my rights?
Worker’s Compensation
I will assume for purposes of this post that you notified your employer of the accident. I will also assume you had already applied for and are receiving compensation benefits. Beside the medical benefits, you are also entitled to partial loss wage benefits. As explained in an earlier post, compensation pays 2/3 of your average weekly wage in the 52 weeks prior to your accident. Compensation has a cap on the compensation rate based upon the date of your accident.
Some union contracts provide for additional benefits. For example, some union contracts pay workers their full salary for the time they are disabled, not just a percentage of their earnings.
Labor Law § 241
Since you were already on the job site walking to the area where your crew was working, you are probably covered by the Labor Law as one of the protected classes of workers. Because you fell walking the area to which you were working, this would not be a case covered by Labor Law § 240. Labor Law § 240 deals with gravity related risks. However, this would probably be a case covered by Labor Law § 241.
In order to be covered by section 241, you must articulate a violation of the Labor Code that had caused your accident.
In your case, there is a specific provision providing workers protections in passageways and walkways on a job site.
Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing. 12 NYCRR 23-1.7(d)
Violation of this regulation will support a claim under Labor Law § 241. Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 670 NYS2d 816, (1998).
Similar Labor Law Slip and Fall Cases
In Toalongo v Almarwa Center, Inc., 202 AD3d 1128, 164 NYS3d 162 (2d Dept 2022), the plaintiff slipped on water, ice, and debris in stairwell while coworkers were passing him a steel beam. Violation of this regulation supported a claim under the Labor Law.
In Bazdaric v Almah Partners, LLC, 41 NY3d 310 (2024), the plaintiff slipped and fell on a plastic covering. The regulation covers this case. The injured party recovered under the Labor Law.
“Storm in Progress” Rule
In slip and fall cases on snow and ice, normally the property owner must have (1) notice of the condition and (2) a reasonable amount of time to clear it. This is not true for Labor Law cases. So even if the accident occurred while the storm was in progress, if a worker had slipped and fallen on a passageway or walkway, the Labor Law covers this accident. Rothschild v Faber Homes, Inc., 247 AD2d 889, 668 NYS2d 793 (4th Dept 1998).
Notice of Condition
There is a difference between the First and Second department of the Appellate Division regarding the notice issue.
The First Department covers Manhattan and the Bronx. The Second Department covers the outer boroughs: Queens, Brooklyn, and Staten Island. So if you bring your case in the First Department, you must prove that “someone within the chain of the construction project” had notice of the condition. DeStefano v Amtad New York, Inc., 269 AD2d 229, 703 NYS2d 34 (1st Dept 2000).
However, if you start your case in the Second Department, a general contractor’s lack of notice of a snow condition was not a defense to a Labor Law § 241(6) claim. Amirr v Calcagno Const. Co., 257 AD2d 585, 684 NYS2d 280 (2d Dept 1999).
By James Santner, Esq.
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