FOR BREAKING NEWS VISIT WWW.QNS.COM OCTOBER 3, 2019 • THE QUEENS COURIER 93
FOR SALE
130-05 LIBERTY AVENUE
RETAIL / MEDICAL / FACTORY
EXCLUSIVE AGENTS: (718) 786-5050
MATT McMULLEN & AVI FEINBERG
• 6,000 SF + 4,000 SF BASEMENT
• 2,000 SF “CLEAN ROOM”
• 2 STREET ACCESS
• 78 FT OF FRONTAGE
• FLOOR DRAINS
• 2 DRIVE-INS
• 1 EXTERIOR LOADING DOCK
• BLOCKS FROM I-678, TRAIN &
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ABANDONING AN EMPLOYER
Q: To pour a concrete floor, I would much rather use a power buggy than a wheelbarrow. For horse
play, I guess my friend likes buggies, too. He was not designated to operate my buggy. He was just a watchman
on a construction site next to ours. My friend was not supposed to be at my site messing with my machine. All
the same, he jumped on the buggy, lost control and fell off the buggy, which then struck me in the back.
A: Under section 241(6) of New York’s Labor Law, “All areas in which construction, excavation or
demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated
and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or
lawfully frequenting such places.” Section 241(6) was deemed necessary by reason of the exceptional dangers
inherent in connection with constructing or demolishing buildings, or doing excavating in connection
therewith.
Rule 23-9.9(a) of New York’s Industrial Code states that no person other than a trained and
competent operator designated by the employer shall operate a buggy. The courts interpret and apply the
Industrial Code to effectuate its purpose of protecting construction laborers against hazards in the workplace
– and Rule 23-9.9(a) is deemed sufficiently specific to support a claim under section 241(6).
Under the doctrine of respondeat superior, an employer is vicariously liable for torts committed
by an employee acting within the scope of his or her employment. Pursuant to this doctrine, the employer may
be liable whether the employee acts negligently or intentionally, so long as the tortious conduct is generally
foreseeable and a ‘natural incident’ of the employment. If, however, an employee for purposes of his or her
own departs from the line of his or her duty to the extent that his or her acts constitute an ‘abandonment’ of
being an employee, the employer is not liable.
Most likely, the defendants will argue that they cannot be held liable under a theory of respondeat
superior, because your friend was acting outside the scope of his employment. However, although it may seem
that your friend was horsing around, perhaps in part he was moving the buggy because it was in the middle of
a road that his employer used. Or perhaps such conduct is generally foreseeable. After gathering the evidence,
your attorney will hope to argue strongly that your friend’s conduct certainly did not amount to an
‘abandonment’ of his employer.
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