Opinion
# 2012-041-501 Claim No. 112522
03-08-2012
DELISO v. THE STATE OF NEW YORK
Synopsis
After bifurcated trial defendant is found 75% responsible under Labor Law § 200 and common-law negligence for claimant's accident from fall caused by dangerous condition consisting of uncovered 10-12 inch gap between surfaces of floating barge and adjoining pontoon utilized as work site for replacement of Wantagh Parkway Bridge. Case information
UID: 2012-041-501 Claimant(s): ANGELO DELISO Claimant short name: DELISO Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 112522 Motion number(s): Cross-motion number(s): Judge: FRANK P. MILANO HOFMANN & ASSOCIATES Claimant's attorney: By: Timothy F. Schweitzer, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: John Belford, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: March 8, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Angelo Deliso (claimant), an experienced journeyman dockbuilder, was injured on January 21, 2005, as he was working on the replacement of the Wantagh Parkway Bridge over the Sloop Channel in the Town of Hempstead. The State of New York (defendant) had contracted in April, 2003 (Trial Exhibit 9) with claimant's employer, Modern Continental Construction (Modern), to replace the Wantagh Parkway Bridge. As of the date of the accident, claimant had worked for approximately 19 years as a dockbuilder, had worked on many bridge construction projects and had been working on the Wantagh Parkway Bridge project for over a year, starting his work there in late 2003.
Modern's work on the project included driving concrete bridge support piles into the channel's bed. This work was undertaken by the use of a crane that rested upon a floating ringer barge which, due to the crane's height and massive weight, was stabilized by two floating pontoons affixed to each side of the ringer barge by a pin and padeye system located below the walking surface of the ringer barge and adjoining pontoons. The ringer barge and the pontoons were permanently affixed to each other by this method, ensuring that each were at the same elevation, unable to move independently of the other. A gap of between eight and ten inches in width, representing open space between the ringer barge and each pontoon, ran the 140 foot length of the ringer barge on each of its sides. These physical characteristics are depicted in Trial Exhibits 4, 5, 6, 7 and several photographs of Trial Exhibit A (particularly photographs K, L, and M therein).
The gaps were entirely uncovered other than in the immediate work area of the operating engineer responsible for operating the jet pumps used in the pile driving process. The operating engineer had requested that the gap be covered near his work area, which would change location from time to time. This accommodation for the operating engineer, accomplished by spot welding (and periodically removing) metal grating to the ringer barge and/or the pontoon to cover the gap, is shown in Trial Exhibits 5, 8 and photograph Q of Trial Exhibit A. Claimant and his coworkers had crossed the uncovered gap in their movements to and from the pontoons, the ringer barge and an adjoining materials barge, hundreds, if not thousands, of times prior to January 21, 2005, without incident or accident.
The ringer barge crane would suspend large pneumatic and diesel hammers which were utilized to drive the bridge-supporting piles into the channel bed. The hammers were powered by a variety of air and hydraulic hoses which were ever-present at the work site, moved at various times to various locations on the ringer barge and the pontoons to feed the hammers, as the hammers (and crane) were moved to address changing construction requirements and work areas.
On January 21, 2005 claimant was cutting metal plates, utilizing an acetylene torch. At some point, he depleted his oxygen tank and ascended a gangway to the adjoining materials barge to retrieve a replacement oxygen tank. Claimant hoisted the large, heavy, cylindrical tank to his shoulder, not an uncommon method by which claimant would transport oxygen tanks, began his descent on the materials barge gangway, and stepped onto the pontoon upon which the materials barge gangway rested.
Claimant navigated his path to the materials barge safely, but upon his return trip, after stepping onto the pontoon, he tripped over a hose laying on the pontoon. Claimant lost his balance and dropped the oxygen tank. He stumbled a few feet and stepped into the uncovered gap, which resulted in his right leg becoming lodged between the pontoon and the ringer barge, trapping his right foot, ankle and knee. Claimant estimated that five or six hoses were on the pontoon, each six to eight inches in diameter, but was uncertain of which one he tripped over.
The claim was filed on July 11, 2006 and was bifurcated. The claim alleged violations of Labor Law §§ 200, 240 (1), 241 (6) and common-law negligence. The answer alleged that claimant was injured through his own culpable conduct or through the culpable conduct of a third party.
Pre-trial motions resulted in the dismissal of claimant's causes of action under Labor Law §§ 240 (1) and 241 (6). The claim has accordingly been narrowed to whether claimant has proven by a preponderance of the credible evidence that defendant's actions or inaction constituted negligence under Labor Law § 200 or under common-law negligence (see DeLiso v State of New York, 69 AD3d 786 [2d Dept 2010]).
Labor Law § 200 provides as follows:
"All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons."
"Labor Law § 200 is a codification of the common-law duty of property owners . . . to provide workers with a safe place to work" (Rodriguez v BCRE 230 Riverdale, LLC, 91 AD3d 933, 934 [2d Dept 2012]). Chowdhury v Rodriguez (57 AD3d 121, 128 [2d Dept 2008]), explains that:
"Labor Law § 200 has two disjunctive standards for determining a property owner's liability. The first is the authority to supervise the work when a plaintiff's injury arises out of defects or dangers in the methods or materials of the work (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]; Lombardi v Stout, 80 NY2d at 295; Ortega v Puccia, 57 AD3d 54 [2008]; McLeod v Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Sts., 41 AD3d 796, 798 [2007]; Rosenberg v Eternal Mems., 291 AD2d 391, 392 [2002]). The second standard is applicable to worker injuries arising out of the condition of the premises rather than the methods or manner of the work. When a premises condition is at issue, a property owner is liable under Labor Law § 200 when the owner created the dangerous condition causing an injury or when the owner failed to remedy a dangerous or defective condition of which he or she had actual or constructive notice (see Ortega v Puccia, 57 AD3d 54 [2008]; Azad v 270 5th Realty Corp., 46 AD3d 728, 730 [2007]; Keating v Nanuet Bd. of Educ., 40 AD3d 706, 708 [2007]; Kerins v Vassar Coll., 15 AD3d 623, 626 [2005]; Kobeszko v Lyden Realty Invs., 289 AD2d 535, 536 [2001]; Giambalvo v Chemical Bank, 260 AD2d at 433)."
There is no question that defendant is an owner under Labor Law § 200 and subject to the provision's requirement to provide claimant a safe workplace. In Rigopoulos v State of New York (236 AD2d 459, [2d Dept 1997]), the "claimant . . . was employed by an independent contractor hired by the defendant to sandblast and paint the underside of the Robert Moses Causeway Bridge over the Great South Bay in Suffolk County. The work was performed from a floating barge provided by the contractor which was tied to the piers of the bridge." The Rigopoulos court found that although the claimant's Labor Law § 240 (1) strict liability cause of action was barred by "principles of Federal maritime law" (236 AD2d at 460), the defendant State of New York was subject to potential liability under Labor Law §§ 200 and 241 (6). Similarly, in Cammon v City of New York (95 NY2d 583, 585-586 [2000]), the plaintiff dock builder, working for a subcontractor, was injured while repairing a pier owned by the City of New York while working from a "float stage in navigable waters" that was secured to the pier. The Cammon court held that the defendant City of New York was subject to potential liability under the Labor Law.
Claimant argues that defendant was negligent in failing to remedy three allegedly unsafe conditions at the work site which contributed to causing his accident, despite having notice of the conditions: The lack of a handrail on the materials barge gangway claimant descended just prior to his accident; the hose or hoses over which claimant tripped; and the uncovered gap into which claimant stepped.
As to the handrail issue, there was a complete failure of proof by claimant that a handrail on the moveable, temporarily-placed materials barge gangway was required by statute or regulation, that its absence constituted negligence, or that its absence at all contributed to claimant's accident. Claimant's expert, Stuart Sokoloff, only mentioned the handrail in the briefest of passing reference, and offered no reasoning or support that it was required or that its absence established defendant's negligence. Mr. Sokoloff admitted on cross-examination to forming his conclusion about the handrail issue while under the belief that claimant began his "slip" while still on the gangway (Trial Transcript, p 213). Claimant's own testimony indicated that he tripped over a hose that was laying on the pontoon upon which the gangway rested, a circumstance which occurred only after he had already descended the gangway. The absence of a handrail on the materials barge gangway bore no relationship to the occurrence of claimant's accident.
Claimant also alleges that the hose over which he tripped prior to stepping into the uncovered gap constituted a dangerous condition which was a proximate cause of the accident. "The question of whether or not a dangerous or defective condition exists depends on the peculiar facts and circumstances of each case and is a question of fact" (Schechtman v Lappin, 161 AD2d 118, 121 [1st Dept 1990]; accord Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]).
The Court finds that the hoses did not constitute a dangerous condition under these facts and circumstances. Pre-trial motions in the instant case resulted in a holding that the "hoses on which the claimant allegedly tripped were an integral part of the work being performed at the purported site of the accident" (DeLiso v State of New York, 69 AD3d 786, 786 [2d Dept 2010]).
Further, nearly all of the trial witnesses acknowledged that the hose or hoses over which claimant stumbled were a necessary and integral part of the work site, common to both this project and to other similar projects. The hoses were always on the work site, were readily observable as open and obvious to all those working or visiting the work site, and were constantly being moved about the ringer barge and pontoons to accommodate moving machinery and equipment and changing construction tasks.
Next, the Court finds that defendant's potential liability with respect to the 8 to 10 inch wide uncovered gap between the ringer barge and the pontoons involves an allegedly dangerous condition on the premises rather than involving an injury arising out of the means or manner of the work. In Aragona v State of New York (74 AD3d 1260 [2d Dept 2010]), a case involving the very same Wantagh Parkway Bridge replacement project as the instant action, a Labor Law § 200 and common-law negligence claim was considered. In Aragona, the "claimant was employed by Modern as a dock builder and allegedly was injured when he tripped on a padeye, which was welded to the deck of a work barge, as he was carrying materials along a corridor created by lumber and construction material" (Aragona at 1260). The Aragona work barge padeye was described in Cody v State of New York (82 AD3d 925, 926 [2d Dept 2011]), as a "permanent fixture 'which was welded to the deck of a work barge.' " In reversing the lower court's dismissal of claimant's Labor Law § 200 cause of action, the Aragona court held, at pp. 1260-1261, that:
"Liability for a violation of Labor Law § 200 and common-law negligence may be imposed upon a property owner where, as here, the claimant's injuries arose not from the manner in which the work was performed, but rather from an allegedly dangerous condition at the work site, when the owner had actual or constructive notice of the dangerous condition . . . The defendant failed to establish, prima facie, that it did not have actual or constructive notice of the allegedly hazardous condition which caused the claimant's accident (see DeLiso v State of New York, 69 AD3d 786 [2010]) [emphasis added]."
In the instant claim, the 8 to 10 inch wide uncovered gap between the ringer barge and the pontoons was, like the padeye in Aragona, a permanent part of the deck of the work barge. Defendant's potential liability under Labor Law § 200 and common-law negligence should therefore be analyzed as "an allegedly dangerous condition at the work site [as to which] the owner [allegedly] had actual or constructive notice" (Aragona at 1261).
Thus, assuming that the defendant had actual or constructive notice of the 8 to 10 inch uncovered gap, that the uncovered gap constituted a dangerous condition and that the uncovered gap was a proximate cause of the accident, claimant need not show that defendant "had the authority to supervise or control the performance of the work" in order to recover (Ortega v Puccia, 57 AD3d 54, 61 [2d Dept 2008]).
Defendant contends that it had neither actual or constructive notice of the uncovered gap. This contention is patently absurd, belied by overwhelming evidence in the record. Numerous representatives of defendant, including several safety inspectors, were at the work site virtually every day of the several-year construction project at the Wantagh Parkway Bridge. Defendant's engineer in charge, Edmund Donovan, agreed that he was at the work site at least 75 times. The Court finds that the defendant had constructive, if not actual, notice of the condition in question, the uncovered gap, which was an unchanging condition of the work site for years.
The Court must now determine whether the uncovered gap constituted a dangerous condition. The uncovered gap was between eight and ten inches in width. It existed during the entire time claimant worked at the work site and, but for the area proximate to the operating engineer, ran the entire 140 foot length of each side of the ringer barge.
Mr. Donovan and claimant's expert Sokoloff expressed directly contradictory assessments concerning whether the uncovered gap constituted a dangerous condition, Mr. Donovan stating that it did not and Mr. Sokoloff stating that it did. Candidly, Mr. Donovan was an unconvincing witness, testifying incredibly at times. On this point, the Court credits Mr. Sokoloff and discredits Mr. Donovan, having observed their testimony and their demeanor as they did so. Claimant's expert persuasively provided testimony that the uncovered gap was an unsafe condition:
"Yes, that is my opinion and it's based on the New York State Standard Specification, number one, based on that where the engineer in charge and the State DOT has the obligation to assure site safety for workers. And secondly, it's also contrary to good construction practice to allow a hole, a gap, a space, an unguarded opening to exist in a working area where the barge site is extremely noisy. There are compressors, there are jet pumps, there's impact to these vibratory hammers, there's impact to these huge, 5 foot diameter cylinder piles with people working all over. So that when a worker is there he is very distracted by the sounds, by the activity, and would also tend to be looking up to make sure that any of the crane swings or the myriad of material that's being moved would cause him undue injury." (Trial Transcript, p 198).
The nature of the work being performed at the work site necessarily and frequently required the ringer barge crane to hoist heavy machinery, materials and equipment overhead. The pile-driving work involved loud, overhead work. Workers laboring on the work site "floor" of the ringer barge and adjoining pontoons were therefore required to be vigilant about what was happening above them, and specific devotion to looking down as one walked was neither always wise nor necessarily safe. Added to the required awareness of overhead work was the circumstance that workers at the work site had reason and need to cross the two lengthy, uncovered gaps innumerable times during the course of a workday.
Credible testimony was received that items, such as litter, often fell into the gap and had to be retrieved. Additionally, a railroad rail was welded to the ringer barge floor next to the gap (shown in Trial Exhibits 5 and 6) to prevent items from rolling into the gap. It was related to this circumstance, in part, that Mr. Donovan's credibility was, in the Court's view, substantially compromised.
Mr. Donovan insisted that the raised railroad rail posed no tripping hazard. Mr. Donovan further insisted that the hoses common to the work site posed no tripping hazard. He further opined that the uncovered gap "posed absolutely no risk to the workers that were on that barge" (Trial Transcript, pp 321-323). While the fact that any of these work site conditions are tripping hazards is not necessarily determinative that they constitute a dangerous condition, Mr. Donovan's opinion that none of these conditions posed a tripping hazard or risk, especially given the circumstances under which Modern's employees labored, simply contradicts common sense, and had the effect of seriously undermining Mr. Donovan's credibility.
That the uncovered gap represented a dangerous condition was underscored by the fact that the operating engineer complained of and insisted that the gap be covered in those areas near his work area. To address those expressed concerns, metal grating was welded to the ringer barge and/or pontoon to cover the gap. Further, as the operating engineer's work area changed, those remedial steps were repeated at each such location (Trial Transcript, pp 123-124).
Finally, as Joseph Pastorino, a Modern foreman and claimant's direct supervisor, credibly and logically observed, given the outdoor nature of the work, the proximity of the work to water, and the time of year the work was being performed, "the deck is always iced." Clearly, the prospect of slippery footing was a reasonably foreseen consequence of the nature of the work being performed.
Accordingly, for all of the foregoing reasons, the Court finds that the permanent condition of an uncovered gap of eight to ten inches between the ringer barge and adjoining pontoons constituted a dangerous condition under these facts and circumstances, and further finds that defendant's failure to address a dangerous condition of which it had notice constituted negligence under § 200 of the Labor Law and under principles of common-law negligence.
After tripping over the hose, claimant lost his balance and stepped into the uncovered gap, lodging his right foot, ankle, shin and knee in the aperture, and sustaining injury to his right leg. Not to belabor the obvious, had there existed no uncovered gap, the events of January 21, 2005 would not have concluded as they did and the accident which befell claimant would not have occurred. Claimant's expert Sokoloff persuasively opined that the uncovered gap was the primary cause of claimant's accident, stating:
"In my opinion, the primary cause of the incident was the uncovered gap into which Mr. DeLiso stepped when he lost his balance walking down, carrying a canister, walking down a steeply inclined ramp with no railings, and tripped on the hoses that were at the base of the ramp. But the primary cause was the uncovered gap." (Trial Transcript, pp. 194-195).
The Court finds that the uncovered gap was a proximate cause of claimant's accident.
Beyond all the foregoing, even assuming that the 8 to 10 inch wide uncovered gap between the ringer barge and the pontoons can be argued to be a means and method of the work, rather than a dangerous condition of the premises, the Court finds that defendant "had the authority to supervise or control the performance of the work" (Ortega, 57 AD3d 54, 61 [2d Dept 2008]). The Ortega court (57 AD3d at 62) further explains that:
"Although property owners often have a general authority to oversee the progress of the work, mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200."
In considering this issue the Court is guided, once again, by Ortega (57 AD3d at 62, n 2):
"To interpret Labor Law § 200 as limiting the imposition of liability to only those situations in which the defendant actually exercised supervision or control would, we believe, encourage defendants to purposefully absent themselves from work sites to provide insulation from liability under the statute, as well as under the common law. Thus, in our view, the better standard to apply when the manner and method of work is at issue in a Labor Law § 200 analysis is whether the defendant had the authority to supervise or control the work."
Defendant devoted a substantial portion of its efforts at trial attempting to establish that it did not exercise the level of supervision or control over the work site, or over claimant's work specifically, necessary to make it responsible for a work site activity or condition.
Defendant accurately argues that defendant did not assign or direct claimant in his specific job duties, such as the cutting of metal plates the day he was injured and did not control the placement or movement of hoses, or the retrieval of oxygen tanks from the materials barge. Moreover, other than Edmund Donovan's, the defendant's engineer in charge, direct and specific involvement in Modern's pile driving efforts, the defendant had little to do with Modern's ongoing day-to-day construction efforts at the work site.
Defendant additionally argues that Modern's Site Health and Safety Plan (Trial Exhibit 10), incorporated into the parties' contract documents, and specifically paragraph 3 thereof which reads in part, "The Project Manager [Modern employee] is ultimately the responsible person for safety on the site," demonstrates that the defendant did not exercise supervision and control of the work site, thereby relieving defendant of any obligation to remediate an allegedly unsafe situation at the work site. The Court does not agree. Defendant's exercise of supervision and control of the work site, if found, is not exclusive of Modern's contractual obligations to monitor and keep a safe work site.
Contrary to defendant's position, for the several reasons hereafter detailed, the Court finds that the defendant had the authority to, and did, exercise supervision and control over the work site.
Those reasons are:
1. Defendant representatives, including safety inspectors, prior to January 21, 2005, were present on the work site virtually every day of work for more than a year;
2. Defendant's engineer in charge, Edmund Donovan, directly and specifically oversaw and directed Modern's pile driving efforts, including overseeing the quality of the materials being used, the method by which the pile driving was conducted, and the quality of the workmanship being performed related thereto;
3. On one occasion, involving a disagreement with a contractor's representative over pile driving efforts, Mr. Donovan had the gentleman removed from the job;
4. On another occasion, again involving pile driving efforts and disagreement concerning them, Mr. Donovan attempted to have a Modern foreman, Joseph Pastorino, claimant's direct supervisor, fired from the job;
5. Under both § 105-01 (Trial Exhibit D) and § 107-05 (E) (Trial Exhibit C), New York State Department of Transportation specifications incorporated into the parties' contract, defendant's engineer in charge had the authority to stop work at the work site;
6. Mr. Donovan, defendant's engineer in charge, expressly testified that he had the authority to stop work (Trial Transcript, p 279);
7. On at least one occasion, Mr. Donovan did, in fact, stop work at the work site; and,
8. In at least six separate instances involving at least seven occasions, Mr. Donovan interceded on issues specific to work site safety, including:
a. On November 9, 2004, Donovan expressed safety concerns to Modern regarding access to the cofferdam and ringer barge (Trial Transcript, p 305 and pp 325-326);
b. On November 29, 2004, Donovan expressed concerns about the manner in which Modern employees exited the job site parking lot (Trial Transcript, pp 306-307 and Trial Exhibit 13);
c. On one occasion, Donovan instructed Modern to re-conduct a safety meeting (Trial Transcript, pp 324-325);
d. On at least two occasions, Donovan complained and interceded concerning safety issues involving gangways to and from the barges and adjoining land (Trial Transcript, pp 276-277);
e. On at least one occasion, Donovan expressed safety concerns involving wood planks being used as a gangway from one barge to another (Trial Transcript, pp 277-278); and,
f. On at least one occasion, Donovan stopped work at the work site, finding that workers working at elevation were not properly harnessed or "tied off" (Trial Transcript, pp 278-279).
In sum, the Court finds defendant liable as an owner of the work site for the dangerous condition created by the uncovered gap. Further, assuming that the uncovered gap can be argued to be a means or method of the project work, the defendant nevertheless had the authority to, and did, exercise supervision and control over the work site sufficient to sustain a finding of liability under Labor Law § 200 or under a common-law negligence theory.
Claimant is not entirely blameless, however, for the events of January 21, 2005. Claimant was an experienced dockbuilder, had worked several times previously on similar projects, and had worked on the Wantagh Parkway Bridge project for at least 15 months prior to his accident. Claimant had, at the Wantagh Parkway Bridge project, negotiated hoses and had crossed the uncovered gaps hundreds, if not thousands, of times without problem or incident prior to his accident. Claimant was obviously aware of hoses strewn about the work site and aware of the uncovered gap, each a constant work site condition. Claimant was obligated to navigate those conditions safely in traversing the work site.
On his way to the materials barge to retrieve a full oxygen tank on January 21, 2005, claimant overstepped the gap and the hoses laying on the pontoon without problem or incident. However, upon his descent from the materials barge gangway after retrieving the oxygen tank, claimant failed to accurately apprehend and/or negotiate the hoses laying on the pontoon, causing him to trip and step into the uncovered gap.
The fact that a dangerous condition is open and obvious does not negate an owner's "duty [under Labor Law § 200] to maintain its premises in a reasonably safe condition; rather, it goes to the issue of the plaintiff's comparative negligence" pursuant to CPLR § 1411 (Tulovic v Chase Manhattan Bank, N.A., 309 AD2d 923, 924 -925 [2d Dept 2003]).
In consideration of all of the foregoing, the defendant is found to be 75% liable for the accident claimant endured and claimant is found to be 25% liable for his accident.
A trial to determine damages will be scheduled.
All motions not previously decided are hereby denied.
Let interlocutory judgment be entered accordingly.
March 8, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims