18 THE QUEENS COURIER • APRIL 18, 2019 FOR BREAKING NEWS VISIT WWW.QNS.COM
(Bus. reg.) 189-06 Liberty Ave, Hollis, NY
(Hdqtrs.) 217-04 Northern Blvd, Suite 23, Bayside, NY
IN THE EXCAVATOR’S WAY Q: I was working at a construction site. One co-worker was using an excavator to
remove stone and concrete from a pile of dirt. Another was using a loader.
Although I was authorized to be at the work site generally, I was not assigned any
tasks with respect to the loader. Nevertheless, I was standing in between, signaling to the
operator of the loader to dump water out of its bucket. All of a sudden, the loader moved forward
and caused me to jump backward and into the path of the excavator, which had begun traveling
in reverse. The excavator rolled over my legs.
A: It appears that you may have a case under section 241(6) of the Labor Law predicated
upon any of several provisions of the Industrial Code.
Industrial Code section 23-4.2(k) provides, “Persons shall not be suffered or
permitted to work in any area where they may be struck or endangered by any excavation
equipment or by any material being dislodged by or falling from such equipment.” The section
does not require excavation work to be underway at the time of the accident, and it makes no
difference that you were part of the very same work crew.
Industrial Code section 23-9.4(h)(4) provides, “Where power shovels and backhoes
are used for material handling … unauthorized persons shall not be permitted in the cab or
immediately adjacent to any such equipment in operation.” Of course, the owner will argue that
you were indeed authorized to be immediately adjacent to the equipment – based upon the fact
that you were signaling to the operator of the loader when the accident occurred. If your supervisor
had not authorized or directed you to give the signals, then you have a rebuttal to this
argument.
Industrial Code section 23-9.5(c) provides in part, “Excavating machines shall be
operated only by designated persons. *** No person other than the pitman and excavating crew
shall be permitted to stand within range of the back of a power shovel or within range of the
swing of the dipper bucket while the shovel is in operation.” Depending upon the evidence, you
may have a case here, too.
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