Can an injured worker hold their employer liable after tripping over a plastic tarp while painting? A New York appeals court said no, but not without dissent from two judges on the five-judge panel.
While the majority found the tarp didn’t qualify as a foreign substance under state’s labor law, two judges felt the tarp was a hazard that should’ve been addressed by the employer.
Questioned use of the tarp
Srecko Bazdaric was painting on the stairs of an escalator when he tripped and fell over a heavy plastic tarp that had been put down to protect the working surface from dripping paint.
Before starting to work, Bazdaric questioned the safety of using a tarp on the escalator and a supervisor told him to stop complaining. He claimed his fall resulted in injuries that have prevented him from working again.
Bazdaric filed a labor law claim alleging his employer, Almah Partners LLC, had violated the New York Industrial Code, which states:
“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.”
It wasn’t a foreign substance?
The appeals court found that the tarp, which was intentionally placed on the escalator to protect it from dripping paint, didn’t constitute a foreign substance under the regulation.
Why? Because the tarp isn’t similar in nature to the foreign substances listed in the regulation such as ice, snow, water or grease.
The tarp, as part of the staging conditions for the job, was also integral to the work so even if it was considered a slipping hazard, Almah Partners LLC would’ve been protected under state law.
An “integral-to-work defense” applies to items and conditions that are an integral part of the construction, not just to the specific task a worker may be performing at the time of an incident.
Bazdaric argued that this defense didn’t apply because a foreman’s testimony cast doubt on whether the tarp was the best choice to protect the escalator from dripping paint.
However, no prior precedent had been set suggesting a court should determine whether or not a material is the best choice for an integral-to-work defense, so the appeals court found in favor of the employer.
A poor choice
But two judges disagreed with the majority.
They said that while “foreign substance” isn’t defined in the Industrial Code, courts typically “construe words’ ordinary import with their usual and commonly understood meaning.”
In their opinion, since the plastic tarp was a physical material not normally found on an escalator it constituted a foreign substance within the meaning of the Industrial Code.
As for the integral-to-work defense, the dissenting judges pointed to the fact that the employer admitted use of the tarp on the escalator was a poor choice.
According to the judges, the unsafe plastic covering was not:
- a necessary part of the structure
- a condition Bazdaric was charged with removing or installing, and
- was not specially designed and required for the task.
The dissenting judges, who would’ve been the majority had one other judge joined them, found Bazdaric should have won the case because the fact that someone intentionally placed the tarp on the escalator to protect the escalator – but not the worker – doesn’t make it integral to the work.