Frederick McRoberts Authors Article for New York Law Journal on Reconsideration of Standard Applicable to Labor Law 241(6) Claims

New York, N.Y. (February 16, 2022) - New York Partner Frederick McRoberts recently authored an article for the New York Law Journal (NYLJ) titled, "Reconsidering 'General vs. Specific'?" The article discusses recent oral argument before the New York Court of Appeals that suggests that the state's highest court may reconsider the longstanding standard applicable to Labor Law 241(6) claims.

Mr. McRoberts opens the article by explaining, "For close to 30 years, the legally pertinent question, when considering Labor Law 241(6) claims, is whether the relevant regulation sets forth a 'specific standard of conduct' or promulgates a general safety standard." According to the author, the Court of Appeals’ questioning suggests that it may reconsider the application of this longstanding differentiation, which was initially established in Ross v. Curtis-Palmer Hydro-Elec. Co.

Mr. McRoberts goes on to describe the recent matter of Toussaint v. Port Authority of N.Y. & N.J., 174 A.D.3d 42 (1st Dep’t 2019), in which the plaintiff was injured when he was struck by a power buggy. The operating engineer's employer had not assigned him to operate the device. Thus, the plaintiff alleged a violation of Industrial Code 12 NYCRR 23-9.9(a), which states that “… [n]o person other than a trained and competent operator designated by the employer shall operate a power buggy.” As Mr. McRoberts explains, when Toussaint was argued before the Court of Appeals in 2021, the "question posed was whether 23-9.9(a) was sufficiently specific to support a 241(6) claim."

Next, Mr. McRoberts reviews historical case law related to the analysis of Industrial Code violations, noting that courts have consistently relied upon the test established in Ross to adjudicate these claims. He then describes and provides excerpts from the Court of Appeals' inquiries during oral argument in Toussaint, noting that "the bench was, noticeably, occupied with the determination of whether general vs. specific served as an effective test. The court acknowledged that the Ross standard has caused much confusion, litigation and inconsistency."

Considering that "the Court of Appeals may depart or reframe the standard set forth in Ross, which might have a significant impact on New York Labor Law practice," Mr. McRoberts ultimately concludes that "it would be impractical for the Court of Appeals to abandon the 'general vs. specific' Ross analysis" and that "[t]o suddenly 'clear-the-board' would be impractical and drastically change New York Labor Law practice, unnecessarily."

Mr. McRoberts is a member of Lewis Brisbois' General Liability and Construction Practices. He focuses his practice on general liability, construction, premises liability, risk transfer, and labor law matters. Regularly representing general contractors, construction managers, owners, municipal entities, and subcontractor entities, he is well-versed in the New York State Labor Law, OSHA, NYC Administrative Code, and NYC Building Code. Mr. McRoberts also has experience prosecuting and defending construction contractors in connection with third-party contractual claims.

You may read the full NYLJ article here (subscription may be required).