Justice Doris Ling-Cohan


Lombardi was injured on a construction site, including taking orders to get drinks and snacks for the coffee break. He went to take an order from the backhoe operator and then tried to get out of the way before the bucket swung, but was unable. Lombardi was injured when the counterweight swiveled and hit him on the back, causing numerous injuries. He sued to recover for Labor Law §241(6) violations alleging defendants violated §§23-9.4(h)(4) and (5) of the Industrial Code. Defendants argued (h)(4) did not apply to Lombardi as he was not an “unauthorized person,” but an employee, to whom the regulation did not apply. The court agreed, finding “authorized” meant “as determined by a laborer’s employer.” Thus, as Lombardi was authorized by his supervisor to be where he was when the accident happened, (h)(4) was inapplicable. Defendants also argued (h)(5) was inapplicable as the injury occurred when the back of the backhoe hit Lombardi, not when a suspended load fell on him. The court disagreed, finding defendants failed to show the backhoe was not carrying a load over an area where people passed when the accident happened. Hence, it denied dismissal of Lombardi’s §241(6) claim based on §23-9.4(h)(5).