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 … [u]nauthorized 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.

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.

Copyright © 2018-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878