Opinion
# 2014-045-500 Claim No. 116650
06-30-2014
JOSEPH DANIELLO AND LISA DANIELLO v. THE STATE OF NEW YORK
Kramer, Dillof, Livingston & Moore By: Thomas J. Principe & John P. Beatty, Esqs. Law Offices of Christopher P. DiGiulio By: Christopher P. DiGiulio, Esq.
Synopsis
Labor Law trial, 241(6) only, violation of 12 NYCRR 23-9.5(g), inaudible back-up alarm.
Case information
| UID: | 2014-045-500 |
| Claimant(s): | JOSEPH DANIELLO AND LISA DANIELLO |
| Claimant short name: | DANIELLO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 116650 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | Gina M. Lopez-Summa |
| Claimant's attorney: | Kramer, Dillof, Livingston & Moore By: Thomas J. Principe & John P. Beatty, Esqs. |
| Defendant's attorney: | Law Offices of Christopher P. DiGiulio By: Christopher P. DiGiulio, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | June 30, 2014 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
A bifurcated trial concerning the issue of liability only was held in this matter. The subject claim arose on May 2, 2007 in the afternoon when the right rear tire of a grader struck Joseph Daniello, claimant, and rolled up his leg, knocking him to the ground at the construction site.
All references to claimant are to Joseph Daniello, unless otherwise indicated as the claims of Lisa Daniello are derivative in nature.
At the time of the accident, claimant was employed by Intercounty Paving Associates Corporation, LLC (Intercounty) as a laborer. Intercounty had entered into a contract with defendant to reconfigure an intersection and traffic pattern at the entrance to Republic Airport. On May 2, 2007, claimant was working at the job site installing a temporary road at the entrance to Republic Airport. Claimant was assigned by his supervisor, Robert Albinski, to work with a dump truck. The grader in question was owned by SEA-NIC, which had entered into a subcontract with Intercounty to do the grading. The grader was described as approximately 50-70 feet long and 12-16 feet wide. Gabriel Goodwin was the owner of SEA-NIC and was also the operator of the grader on the date of the accident.
Claimant testified that prior to the accident he was standing about three feet behind the dump truck parallel to the truck so that he could be seen by the driver of the dump truck in the side view mirror. He was directing the dump truck which was in the process of dumping hot asphalt onto the unfinished surface of the roadway. Claimant had been involved in this process numerous times over many years in construction. He communicated with the driver of the vehicle through hand signals. Claimant stated that he brought the dump truck into position, heard the dump truck's back-up alarm and gave the thumbs up signal to begin dumping the asphalt. During this process the grader began backing up to grade the roadway. Claimant was to the right of the grader at that time.
Claimant testified that he did not see nor hear the grader before it hit him. Claimant last saw the grader approximately 3 minutes prior to the accident. He stated the last thing he could recall before feeling a tire rolling up his leg was looking into the back of the dump truck. Claimant explained that he did not hear the grader's back-up alarm prior to the accident nor when the grader struck him. Claimant also testified that he never heard the grader's back-up alarm on the day prior to the accident.
Gabriel Goodwin testified at his deposition that he performed approximately 90% of the grading work for Intercounty. On the day of the accident he arrived at 6:30 a.m. and prepared the grader for operation. He explained that the grader has automatic back-up alarms that were working that day. Mr. Goodwin, testified at his deposition that the grader was grading the area to the left of where the dump truck, being guided by claimant, was dumping asphalt. The grader and the dump truck were parallel to each other. Mr. Goodwin testified that the grader was initially moving forward while claimant was bringing the dump truck back into position past the grader. Mr. Goodwin testified that immediately prior to the accident, as he was backing up the grader, the blade on the grader was about a foot and a half away from the dump truck. He saw Frank Finn, another Intercounty employee, behind him through the back window and left mirror. He testified that he heard Mr. Finn yell and saw his signal indicating that he should stop the dump truck, which he did. Mr. Goodwin stated that he never saw claimant appear in back of his grader but that he felt an elevated bump on the rear tire.
William Gulya, President and CEO of Middlesex Trenching Company, testified on behalf of claimant. He stated that he is OSHA certified and is familiar with the New York State Industrial Code. He explained that he reviewed the deposition transcripts of Mr. Goodwin, Mr. Daniello, Mr. Finn, Mr. Sciora, Mr. Albinski as well as the police accident reports, accident reports and photographs, the Health and Safety Plan, an MPT plan and Industrial Code 12 NYCRR Section 23-9.5(g) for this matter.
He opined that claimant was performing his duties according to industry standards and practices by positioning himself so that he could communicate with the dump truck driver and also view the back of the dump truck where the asphalt was being dumped. He also opined that the Industrial Code was violated because the back-up alarm was not audible to claimant regardless of what others at the site may have heard. He testified that he was familiar with the type of grader and dump truck being used at the site. Mr. Gulya testified that there were no notes or indications that the grader's back-up alarm was tested either before or after the accident.
Frank Finn, an eyewitness to the accident, testified on behalf of defendant. Mr. Finn testified that he and Gabriel Goodwin are cousins and that he is currently employed by him on his farm in New York. In May 2007, he was employed by Intercounty Paving as an operating engineer working in the area of road construction. He was present on site on the day of claimant's accident working as a roller. He denied that his job was to act as a spotter for the grader. He testified that he personally observed the grader moving in reverse and heard its back-up alarm on the day prior to the accident as well as on the day of the accident. He explained that he had no difficulty hearing the back-up alarm over the noise of the construction site. He testified that after lunch, he was waiting on the job site until the road was graded and ready to be rolled. He was standing approximately 15 feet away from claimant at the time of the accident. He observed the grader going in reverse and heard its back-up alarm. He described the grader's back-up alarm as a loud beeping and "annoying" sound.
Mr. Finn observed that claimant was on the driver's side near the back end of the dump truck. He stated that claimant was standing in correct position to perform his job function. He observed the dump truck begin to unload the asphalt while claimant was looking at the back of the dump truck. He then saw claimant step back from the asphalt which was dumped just enough to get his leg caught on the tire of the grader. He also observed that the grader was operating in very close proximity to where claimant was working. Mr. Finn believed that claimant stepped back to get away from the hot asphalt.
Mr. Finn testified that as he observed claimant stepping back, he ran forward, put his hand up and shouted at Mr. Goodwin to stop the grader. The grader then came to a stop and he indicated to Mr. Goodwin to go forward to get the wheel off of claimant. Mr. Finn explained that he had to signal to Mr. Goodwin because Mr. Goodwin is in a sealed cab. After the accident, Mr. Finn spoke to a State Trooper and Mr. Albinski.
John DelVecchio, a project manager for Intercounty Paving, testified that he was a superintendent on the paving project of Republic Airport at the time of claimant's accident. He stated that he was on the job site the day prior to the accident as well as the day of the accident.
Mr. DelVecchio testified that on both the day prior to as well as the day of the accident, he observed the grader in operation and heard its back-up alarm. He described it as a piercing sound that could be heard over the noise of the other equipment. Mr. DelVecchio testified that he could hear the back-up alarm when he was at the entrance to the airport. He was present at the site at the time of claimant's accident, standing at the entranceway looking at the yard across the street. He observed claimant by the load of asphalt as well as the grader moving backwards. He testified that although he did not observe the accident, he heard the back-up alarm as well as claimant screaming. After he heard claimant's scream, he ran over to claimant and called 911.
After the accident, there was a field meeting with Jack Giarraputo, Eugene Sciora, Carlos Palomeque and possibly Frank Finn. An accident report was filled out. Mr. DelVecchio recalled that all present agreed that claimant was run over by the grader when he stepped into its path and that it was accidental. The state inspector, Eugene Sciora allowed Intercounty Paving to recommence working after claimant was taken to the hospital.
Mr. Del Vecchio explained that as part of his job, he as well as Mr. Albinski, were responsible for ensuring that the back-up alarm was functioning properly. Jack Giarraputo and Eugene Sciora were the state inspectors on the job and had the authority to issue a stop work order if they determined that Intercounty was not adhering to the Health and Safety Plan. There was no stop work order issued as a result of claimant's accident. Mr. DelVecchio also explained that Intercounty had two mechanics on staff that were able to repair back-up alarms on machinery if necessary.
He testified that at no time on May 1, 2007 did any of the Intercounty employees report that there was a problem with the back-up alarm on the grader, nor did anyone complain about the alarm prior to claimant's accident on May 2, 2007.
Deposition testimony of Eugene Sciora established that he was a contract employee of the RBA Group which had been hired by defendant to perform inspection services on New York State contracts. He explained that he had no supervisory authority over the work being completed at the job site. He testified that he was standing 50-75 feet away from the site of the accident but he did not personally observe the accident. He learned that claimant stepped back into the path of the grader in conversations he had with other laborers present at the scene. He testified that the grader had a back-up alarm. He contacted his supervisor, Jack Giarraputo as well as Gloria Rubin, the DOT Safety Engineer, about the accident but did not conduct any investigation into the accident.
Robert Albinski testified that he retired from his position as superintendent
at Intercounty Paving in July 2012 after working for the company for 8 years. He was the superintendent in charge of the paving project of Republic Airport. His first involvement with the project was to implement the Maintenance and Protection of Traffic plan which is in effect for the duration of the project. He explained that he was responsible for scheduling labor, equipment and materials on the project and for ensuring that the specifications of the contract were followed including safety techniques.
Mr. Albinski explained that he was at the project on a daily basis and was present on the day of accident. He testified that on May 1, 2007, he observed the grader in operation and heard its back-up alarm which has a noise factor above normal background noise. He explained that it is an automatic device that operates whenever the grader is in reverse. He testified that if a piece of equipment was on site and its back-up alarm was not working an inspector would not allow that equipment to be used on the job until it was fixed.
Mr. Albinski also testified that he was present on the job site on May 2, 2007 and on that day he came to the job site to start the crew, left and then came back later that day. While at the job site that day, he observed the grader in operation and heard the back-up alarm from 50-100 feet away. He explained that the accident occurred after lunch while he was standing 75-100 feet away speaking with the inspectors and the foreman. He stated that he observed the grader go in reverse moving slowly, similar to a walking pace and that he heard normal construction noise
but did not observe the actual accident. Mr. Albinski explained that he was not listening for the grader's back-up alarm but knew it was working because he heard it just seconds prior to the accident.
Mr. Albinski testified that after the accident, there was a stand down meeting. Jack Giarraputo, Carlos Palomeque, Gabriel Goodwin, Frank Finn and John DelVecchio were at the meeting. He explained that the State would stop work if procedures were not correct or if the work was not performed in a safe and reliable manner. In this instance, the work was allowed to recommence. He also testified that after the accident, no one indicated that the back-up alarm was not working and that he was present when the grader went back into operation. At that time he stated that he heard the grader's back-up alarm.
The Daily Work Report for May 2, 2007 prepared by Eugene Sciora set forth that all trucks and equipment were equipped with revolving amber lights and working back-up alarms.
The only issue before this Court is whether claimant established his Labor Law § 241(6) claim by proving a violation of the Industrial Code of the State of New York 12 NYCRR 23-9.5(g).
Labor Law § 241(6) provides:
"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. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."
"Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors 'to provide reasonable and adequate protection and safety' to all persons employed in areas in which construction, excavation, or demolition work is being performed (see, Rizzuto v Wenger Contr. Co. 91 NY2d 343, 347; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502). However, to prevail upon a Labor Law § 241(6) claim, a [claimant] must establish that the defendant violated a regulation that sets forth a specific standard of conduct (see, Ross v Curtis-Palmer Hydro-Elec. Co., supra; Whalen v City of New York, 270 AD2d 340)" (Miranda v City of New York, 281 AD2d 403, 404 [2d Dept 2001]).
Claimant specifically alleges a violation of the Industrial Code of the State of New York 12 NYCRR 23-9.5(g) which states:
"Backing. Every mobile power-operated excavating machine except for crawler mounted equipment shall be provided with an approved warning device so installed as to automatically sound a warning signal when such machine is backing. Such warning signal shall be audible to all persons in the vicinity of the machine above the general noise level in the area."
There was testimony from a number of witnesses that the road grader was equipped with a working back-up alarm at the time of the accident. Frank Finn, Robert Albinski and John DelVecchio also testified that they personally heard the back-up alarm. Claimant however testified that he did not hear any back-up alarm coming from the grader either the day prior to the accident or the day of the accident.
The trial judge in a nonjury court must assess the evidence and the credibility of the witnesses in reaching its determination (Perriello v State of New York, 106 AD3d 797 [2d Dept 2013]; Terry v State of New York, 39 AD3d 846 [2d Dept 2007]). Here, the Court was presented with overwhelming testimony from a number of credible witnesses which established that the back-up alarm on the grader was working and audible at the time of the accident. Even if the Court were to discount the testimony of Gabriel Goodwin and Frank Finn, there remained 3 witnesses who credibly testified that the grader's automatic back-up alarm was functioning and audible at the time of the accident. In light of the credible evidence presented, claimant's testimony was found to be insufficient to sustain his burden of proof in this matter. Additionally, Mr. Gulya's testimony failed to establish that the back-up alarm was not audible at the time of the accident.
Therefore, based upon the foregoing, the Court finds that claimants have failed to prove, by a preponderance of the credible evidence, the claim against defendant in this action. Accordingly, the claim is hereby dismissed in its entirety. Any motions upon which the Court has previously reserved or which remain undecided are hereby denied.
The Clerk of the Court of Claims is directed to enter judgment accordingly.
June 30, 2014
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims