Abandoning an Employer

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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.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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