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. This differentiation was first established in the decision of Ross v. Curtis-Palmer Hydro-Elec. Co. and has been repeatedly upheld by its progeny. However, the Court of Appeals has hinted that it may reconsider the application of this longstanding standard.

In the matter of Toussaint v. Port Authority of N.Y. & N.J., 174 A.D.3d 42 (1st Dep’t 2019), plaintiff was injured when he was struck by a power buggy. The operating engineer was not assigned, by his employer, to operate the device. Plaintiff alleged a violation of 12 NYCRR 23-9.9(a), which states that “… [n]o person other than trained and competent operator designated by the employer shall operate a power buggy.” The term “designated person” is defined in 12 NYCRR 23-1.4(b)(17) as “[a] person selected and directed by an employer or his authorized agent to perform a specific task or duty.” The First Department held that “the regulation’s requirement that a ‘trained and competent operator … shall’ operate the power buggy are general, as lacking the specific requirement of standard of conduct … . However, since the term ‘designated person’ has been held to be specific, 12 NYCRR 23-9.9(a), therefore, was deemed a proper predicate for a claim under Labor Law §241(6).”

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