Toussaint v. Port Auth. of N.Y. & N.J.
The case addresses whether Industrial Code 12 NYCRR 23-9.9 (a), which requires that only a "trained and competent operator designated by the employer" shall operate a power buggy, is sufficiently specific to serve as a predicate for a Labor Law § 241 (6) claim. Plaintiff Curby Toussaint was injured when he was struck by a power buggy operated by an unauthorized worker, Paul Estavio, who was "horse playing" on the construction site. The Appellate Division, First Department, held that the "designated person" requirement in the Industrial Code provision is specific enough to support the claim. Upon a search of the record, the court modified the lower court's decision and granted summary judgment on liability to the plaintiff against the Port Authority of New York and New Jersey. A dissenting opinion argued that the provision lacked specificity and that the operator was an interloper, not an improperly designated one, thus questioning the imposition of liability under these circumstances.