Background
Elisito De Jesus Lopez Barbosa was working as a construction laborer at a Bronx site operated by defendants 1169 Hoe LLC and related entities. His task required passing approximately 16-by-2-foot concrete forms up through a narrow floor opening — a coworker pushing from the second floor while Barbosa pulled from the third. As he performed this work, his foot slipped on a combination of rainwater and oil that had accumulated on the plywood floor surface. The resulting back injury prompted a lawsuit asserting multiple theories under New York’s Labor Law.
At the trial level in Supreme Court, Bronx County, the court carved a careful path through the competing motions: it granted Barbosa summary judgment on his Labor Law § 241(6) claim (premised on a violation of Industrial Code § 23-1.7(d), which prohibits slipping hazards on work floors), but denied summary judgment on his § 240(1) elevation-related hazard claim and dismissed his common-law negligence and Labor Law § 200 claims. Both sides cross-appealed. The Appellate Division, First Department, unanimously affirmed every branch of the trial court’s ruling.
The case illustrates how the two principal sections of New York’s Scaffold Law — §§ 240(1) and 241(6) — cover distinct factual territories, and why a plaintiff who cannot prevail under § 240(1) may still recover under § 241(6).
The Court’s Holding
On the § 241(6) claim, the First Department confirmed that Barbosa’s testimony — that his foot slipped on rainwater and oil pooled on the plywood floor — established a prima facie violation of Industrial Code (12 NYCRR) § 23-1.7(d), which requires that passageways and working areas be kept free from slipping hazards such as water and grease. Critically, the court applied the heightened standard from the Court of Appeals’ 2024 decision in Bazdaric v Almah Partners LLC (41 NY3d 310 [2024]): defendants could defeat the claim only by showing that the presence of water and oil was “inherent” to the specific task Barbosa was performing. They failed to make that showing. Nothing about manually passing concrete forms through a floor opening requires the floor to be wet or oily.
On the § 240(1) claim, the court upheld dismissal. Labor Law § 240(1) applies to injuries directly caused by elevation-related hazards — falling objects, collapsing scaffolds, or workers falling from heights. Here, the concrete form did not fall or move in an uncontrolled manner. Barbosa slipped on the floor and, while holding the form, injured his back. The court noted that Barbosa himself testified he did not know why he held onto the form after slipping — undermining any argument that his injury was the “direct consequence” of an elevation-related risk. Following Fabrizi v 1095 Ave. of the Ams., L.L.C. (22 NY3d 658 [2014]), § 240(1) liability requires a causal link between the gravity-related hazard and the injury, not merely the presence of a heavy object nearby. The common-law negligence and § 200 claims fell because the water and oil were transient conditions attributable to the means and methods of the work, without evidence that defendants supervised or created them.
Key Takeaways
- Labor Law § 241(6) and § 23-1.7(d) provide a viable recovery path for construction workers injured by slipping hazards on work floors, even when the § 240(1) elevation-hazard theory is unavailable.
- After Bazdaric (2024), defendants opposing § 241(6) slipping-hazard claims must show that the hazardous substance was “inherent” to the specific task — a demanding standard that generic assertions about construction-site conditions will not satisfy.
- Section 240(1) requires proof that the plaintiff’s injury was the direct consequence of a gravity-related or elevation-related risk; holding onto an object while slipping on a wet floor will not, standing alone, support a § 240(1) claim.
- Practitioners representing construction workers should plead § 241(6) predicated on Industrial Code § 23-1.7(d) whenever floor-level slipping conditions exist, independent of whether an elevation-related theory is sustainable.
Why It Matters
New York’s Labor Law §§ 240(1) and 241(6) — together known as the Scaffold Law — are the most powerful worker-protection statutes in the country, imposing strict liability on property owners and general contractors for specified site hazards. But the two provisions cover different ground, and this case is a useful reminder of where the boundary lies. The § 240(1) claim targets gravity-related accidents — things falling or workers falling from height. The § 241(6) claim is broader, reaching any regulatory violation that causes injury at a construction site, and § 23-1.7(d)’s anti-slipping rule has been a growing source of § 241(6) recovery in recent years.
For the plaintiffs’ bar, the key post-Bazdaric lesson is that defendants’ standard “it’s a construction site, things get wet” argument is insufficient to defeat a § 23-1.7(d) claim. For defense counsel and owners, this means early investigation into whether the specific hazardous substance was truly integral to the plaintiff’s task — not just the job generally — is essential before summary judgment briefing. The decision also signals that defendants cannot lump the § 241(6) and § 240(1) analyses together: winning on one theory does not carry over to the other.