Labor Law § 241(6) imposes a non-delegable duty on property owners and general contractors to provide construction, excavation or demolition workers with proper safety precautions set forth in Part 23 of Title 12 of the New York Codes, Rules and Regulations (“NYCRR” or the “Industrial Code”). Liability may be established under Labor Law § 241(6) if the violation of a specific Industrial Code regulation proximately caused a worker’s accident.

Hazardous openings are common worksite perils, and a frequently litigated regulation of the Industrial Code is 12 NYCRR § 23-1.7(b)(1)(i), which requires that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this [rule].” Defenses to the application of this regulation have typically focused on the “hazardous opening” prong, which requires establishing that any gaps or openings must be of “significant depth and size” to support liability. See Pietrowski v. Are-East Riv. Science Park, LLC, 86 A.D.3d 467, 469 (1st Dep’t 2011). While there is no bright-line rule on what constitutes a sufficiently-large opening, case law has settled on openings “large enough for a person to fall through to a lower area.” See Coleman v. Crumb Rubber Mfrs., 92 A.D.3d 1128, 1130 (3d Dep’t 2012) (citing Wells v. British Am. Dev. Corp., 2 A.D.3d 1141, 1144 (3d Dep’t 2003), and collecting cases).

A recent decision from the Second Department, Appellate Division teaches that the “substantial cover” prong of the regulation is just as important as the depth and size of the opening — so much so that even where an opening was adequately protected to prevent workers from falling through, liability may still attach if the covering is in a condition that is less than “substantial.”

In Bonkoski, a worker fell due to an unmarked, broken or defective manhole cover that had been installed in an earlier phase of construction. See Bonkoski v. Condos Bros. Constr. Corp., 2020 NY Slip Op 31963[U], *2-4 (Sup Ct, Suffolk County 2020), rev’d, 216 A.D.3d 612 (2d Dep’t 2023). The manhole cover was partially caved in but was not otherwise compromised to a point where the plaintiff was able to fall through. Id. The owner and general contractor moved for summary judgment, seeking dismissal of the Labor Law 241(6) claim on the basis that plaintiff never fell through any hazardous openings, precluding application of § 23-1.7(b)(1)(i). Id.

Plaintiff disagreed and cross-moved for summary judgment, arguing the manhole cover was nonetheless insufficiently substantial as required by the regulation. Id. The motion court sided with the defendants and dismissed the Labor Law 241(6) claim on the basis that the manhole had been covered before the accident occurred and to the extent there was any defect with the cover, it was “too small for a worker to completely fall through.” Id. at *6-7. The motion court concluded that “this was not the type of hole proscribed by [Industrial Code § 23-1.7(b)(1)(i)].” Id. at *7.

The appellate court reversed, holding that “the plaintiff established, prima facie, that 12 NYCRR 23-1.7(b)(1)(i) was violated [because] the manhole [itself] had a hazardous opening large enough for a worker to fall through, and lacked a covering sufficient to prevent a worker from doing so.” Bonkoski, 216 A.D.3d at 617 (2d Dep’t 2023).

Despite the fact the manhole cover had only been partially caved in and plaintiff never completely fell through the manhole, the appellate court reasoned that “[c]ontrary to the contentions of [owner and general contractor], their evidence that a concrete cover had been placed over the manhole at some point prior to the plaintiff’s accident failed to raise a triable issue of fact as to whether the covering was sufficiently substantial[.]” Id. In shifting the emphasis of the analysis from the size of the opening to the structural integrity of the manhole cover, the court implied that Labor Law 241(6) liability may attach even in instances where an opening is protected to an extent it is not “large enough for a person to fall through to a lower area.” See Coleman, 92 A.D. at 1130.

The appellate court’s evaluation serves as a reminder that “hazardous opening” cases consist of a two-pronged analysis: whether there was a gap or opening of sufficient size and depth for a worker to fall through and whether there was a substantial cover or barrier in place at the time of accident. Indeed, in the record on appeal, the Bonkoski defendants submitted evidence showing that the manhole cover was 36-inches wide, 3-inches thick, weighed in excess of 250-pounds and was constructed of a concrete material reinforced with rebar that could withstand a pressure of 4,000 pounds per inch. In short, it was highly improbable the worker would have fallen though the manhole, notwithstanding the deteriorated condition of the cover. The court nonetheless rejected these arguments because the Industrial Code regulation called for a “substantial covering”, which it determined was not satisfied by a caved-in or broken manhole cover.

Construction sites are rife with openings, such as skylights, roof ducts/drains, unfinished stairs, missing steps, unsupported walkways, chutes, hatches and, in the Bonkoski case, manholes. Unprotected openings in the floor, deck or roof are potential sources of serious injuries, exposing owners and contractors to onerous liabilities under the Labor Law. Even where worksite openings are covered, owners and contractors should take care to ensure that any coverings or barriers remain in reasonably good condition to meet their intended purpose in compliance with the safety standards set forth in the Industrial Code.

The Harris Beach Mass Torts and Industry-wide Litigation team welcomes questions on this subject or related matters. Please reach out to attorney Abbie Eliasberg Fuchs at (212) 313-5408 and; attorney Jeffery J. Sheng at (212) 313-5435 and; attorney Omar Nasar at (212) 313-5442 and; or the Harris Beach attorney with whom you most frequently work.

This alert is not a substitute for advice of counsel on specific legal issues.

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