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You Stepped Where the Floor Should Have Been
A hole cut for a riser. An elevator shaft with nothing across it. A skylight that looked like part of the roof. A plywood cover another trade slid aside and never put back.
In New York, falling through an unguarded opening on a jobsite produces one of the strongest cases in construction law, because two separate claims fit the same facts.
Labor Law 240(1) covers it as a gravity-related failure with absolute liability. Labor Law 241(6) covers it through a specific Industrial Code rule that says exactly what should have been there.
That rule requires every hazardous opening a person may step or fall into to be guarded by a substantial cover fastened in place or by a compliant safety railing.
Loose plywood is not a substantial cover fastened in place. Neither is a sheet of foam board, a tarp, or a warning cone.
Here is what the law requires, why these covers fail, and who answers for it.
- Two claims from one accident: Labor Law 240(1) and 241(6)
- 12 NYCRR 23-1.7(b)(1) gives the concrete command a 241(6) claim needs
- Free Legal Evaluation - You Pay Nothing Unless We Win
The Industrial Code Rule That Decides These Cases
Section 23-1.7(b)(1)(i) of the New York Industrial Code states that every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with the Part.[1]
That sentence is worth reading twice, because every word of it does work in litigation. Substantial rules out flimsy material. Fastened in place rules out anything resting loose over a hole. A compliant safety railing is a defined thing with dimensional requirements, not a length of caution tape.
It is also exactly the kind of concrete command that supports a Labor Law 241(6) claim. Under Ross v. Curtis-Palmer Hydro-Electric Co., a code section written in general terms like adequate or proper will not carry the claim. This one gives a measurable instruction, which is why it is among the most reliable sections in the entire Industrial Code. The specificity rule is explained on our guide to Labor Law 241(6) Industrial Code violations.
What Makes an Opening Hazardous
There is no bright-line dimension in the rule. Courts have focused on whether the opening was large enough for a person to fall through to a lower level, which is the practical test that matters. A four-inch conduit sleeve is not it. A riser hole a person's leg or body can enter is.
The Second Claim: Labor Law 240(1)
The same fall usually supports a Scaffold Law claim. The statute addresses elevation-related risk, and a worker falling through a floor to the level below is the archetype. The absence of a cover or railing is the failure to provide proper protection.
The value of pleading both is that they fail differently. Comparative negligence reduces a 241(6) award and does not touch a 240(1) claim. A defense that knocks out one theory frequently leaves the other standing.
Federal Rules in the Background
OSHA's fall protection standards address holes and openings in Part 1926 as well, and a citation is useful evidence, but it cannot be the basis of a 241(6) claim. The difference is set out on our page comparing OSHA standards and the New York Industrial Code.
What a Compliant Cover Looks Like, and What Usually Gets Used
Compliant: material strong enough to carry the loads it will see, secured so it cannot slide or be kicked aside, marked so anyone crossing the floor knows what is under it. Or a proper safety railing built to the Industrial Code specification.
What we find instead: loose plywood laid over the hole. A sheet of rigid foam. Scrap material stacked across it. A cover removed by the plumber or electrician to run a line and never replaced. An unmarked cover with material stacked on top, so the next worker steps on it expecting a floor.
A cover that is not fastened is a violation whether or not anyone moved it, and a cover that is not marked is a trap even when it holds.
Where These Falls Happen on a Jobsite
Riser and Sleeve Openings in a Slab
Holes cut through the deck for plumbing, HVAC, and electrical risers are the most common single source. They are cut early, covered casually, opened and closed repeatedly by different trades, and often forgotten between floors.
Elevator and Dumbwaiter Shafts
A shaft opening on an active floor is a multi-story fall waiting for a moment of inattention. Barricades get moved for material deliveries and not restored, and the fall distance makes these cases catastrophic or fatal.
Skylights and Roof Openings
A skylight reads as part of the roof surface, and roofers step on them. Older skylight assemblies carry no load and give way instantly. Roof hatches and smoke vents create the same hazard.
Stairwell and Floor Edge Openings
Stair openings before the stairs are installed, unfinished floor edges, and curtain wall openings on a high-rise. A worker backing up while carrying material is the recurring fact pattern.
Hatchways, Pits, and Vaults
Sidewalk hatchways, mechanical pits, sump and elevator pits, and utility vaults. On renovation work these are often uncovered for access and left open through a shift change.
Trenches, Manholes, and Excavations
Open excavations and manholes on street and utility work, where an opening in a walking surface is combined with the additional hazards of the excavation itself. Those claims are covered on our page about trench collapse and excavation accidents.
Deteriorated Floors on Demolition and Gut Work
Rotted decking, fire-damaged floors, and partially demolished slabs where the hazardous opening was created by the condition of the building rather than by a saw. These bring premises-condition theories under Labor Law 200 into the case alongside the statutory claims.
The Injuries a Fall Through a Floor Produces
Fall distance drives everything. A fall through a riser hole to the deck below can be ten feet. A fall down a shaft can be sixty.
The injury pattern is spinal fractures and spinal cord damage, traumatic brain injury, complex pelvic and lower extremity fractures, internal organ damage, and crush trauma from landing on rebar, material, or equipment below. Impalement injuries on exposed rebar are their own category and are usually catastrophic.
Falls remain the leading cause of death in construction, and these accidents produce a disproportionate share of the fatal ones because the worker has no warning and no chance to react.
Who Answers for an Unguarded Opening
The duty under both statutes is non-delegable, so the property owner and the general contractor are liable regardless of who cut the hole or who moved the cover. That is the point of a non-delegable duty, and it is why these cases do not turn into a search for the individual at fault.
Beyond them, a construction manager with safety responsibility and stop-work authority can be liable as a statutory agent. The trade that created the opening, and the trade that removed a cover and failed to replace it, face liability for their own conduct. On demolition and renovation work a property manager or net lessee may be in the chain as well.
Your own employer is generally protected by the workers' compensation bar, which is precisely why the identity of every other entity matters. That analysis is on our page about owner, GC, and construction manager liability, and how the two systems run together is on our breakdown of Labor Law claims and workers' compensation.
The Evidence That Wins These Cases, and How Fast It Disappears
The single most valuable piece of proof is a photograph of the opening as it existed at the time of the fall, before someone covers it properly in the hour after the accident. That happens on almost every site, and it happens for understandable reasons.
After that: the cover itself, if there was one, preserved rather than discarded. Daily reports and sign-in sheets showing which trades were working on that floor. The site safety plan and any pre-task planning documents addressing hole covers. Toolbox talk records. Any OSHA inspection file. And the testimony of the other trades, taken early, about who cut the opening and who was responsible for keeping it covered.
Preservation demands need to go out in days. A jobsite is a place designed to change, and the specific condition that injured you is the one thing on it that no one has an interest in keeping.
