Opinion
# 2015-045-502 Claim No. 118564
03-23-2015
AARON HOMER v. THE STATE OF NEW YORK
Law Offices of Eric H. Green By: Hiram Raldiris, Esq. Hon. Eric T. Schneiderman, Attorney General By: John L. Belford, IV, Assistant Attorney General
Synopsis
Negligence only claim by worker injured in bucket truck under the loop parkway bridge.
Case information
UID: | 2015-045-502 |
Claimant(s): | AARON HOMER |
Claimant short name: | HOMER |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 118564 |
Motion number(s): | |
Cross-motion number(s): | |
Judge: | Gina M. Lopez-Summa |
Claimant's attorney: | Law Offices of Eric H. Green By: Hiram Raldiris, Esq. |
Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: John L. Belford, IV, Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | March 23, 2015 |
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 December 3, 2008 at approximately 2:00 p.m. when claimant, Aaron Homer, was caused to hit his head on the underside of the Loop Bridge over Long Creek near Jones Beach.
Claimant testified that on December 3, 2008 he was employed as a project manager for Olsen Engineering and was in an Under Bridge Inspection (UBI) bucket truck being operated by a New York State Department of Transportation (DOT) employee, Philip Gaches. He explained that DOT provided the truck as well as the operator of the truck. The UBI is a truck that is stationed on top of the bridge and has articulated booms or arms that permit the arms to move in various directions with a bucket at the end of the boom. On the date of the accident claimant and Mr. Gaches were both in the bucket which claimant described as being 4 feet long, 3 feet deep and 4 feet wide.
Claimant testified that his task that day was to install gauges under the bridge which would measure the stress and strain on the bridge plates. He explained that he instructed Mr. Gaches where to move the bucket and that in the morning they installed 2 gauges without incident. After lunch, they moved to the other side of the bridge to complete the installation. Claimant testified that after he completed the installation he collected the wires attached to the cables and dropped them down to workers who were standing on a lower section of the bridge. Claimant then informed Mr. Gaches that he had completed his work and that they could return to the top of the bridge. Claimant testified that he observed Mr. Gaches operating the controls in the bucket when the bucket moved a little bit and then became stuck. Claimant testified that the workers under the bridge yelled that the bucket was stuck on a beam. Claimant continued that while Mr. Gaches was still controlling the bucket, the bucket flew up in a sudden fashion. Claimant testified that he lost his hard hat, hit his head, got knocked out and woke up on the bottom of the bucket. Claimant stated that at the time of the accident Mr. Gaches was looking down at a beam.
Mr. Gaches testified he has been employed by DOT for 15 years as a Bridge Repair Mechanic and for the past 2 years as a Bridge Repair Supervisor. He testified that on December 3, 2008, he was assigned to the Loop Bridge to assist claimant in his inspection by operating the bucket truck. He explained that he was certified in the use of the bucket truck and had received training in its use as well. He further explained that there was a ground operator located on top of the bridge. Mr. Gaches also testified that they worked all morning without incident with claimant directing him to various locations under the bridge that needed to be inspected. Mr. Gaches testified that after lunch they started on the other side of the bridge and that claimant directed him to move the bucket to a specific location that needed to be inspected. After claimant informed him that he was done, Mr. Gaches began operating the bucket truck using the fly-in lever. Mr. Gaches testified that he thought the hydraulics were moving slowly due to the cold weather. He then told claimant to "hold on" so he could pull the release and then the bucket suddenly jolted up, knocking claimant's hard hat off. The accident report also indicated that the bucket jerked when released (Cl Exh 1).
Mr. Gaches testified that it was only afterwards that he became aware that there was no mechanical problem with the truck and that it was moving slowly because the piston on the bottom of the bucket had become hung up on a flange, which is part of the beam. He stated that there were no workers on the platform below and that no one called out that the bucket was stuck. He explained that the ground crew on top of the bridge would not have been able to see the bucket under the bridge. Mr. Gaches asserted that he had no reason to believe the bucket was hung up prior to the incident occurring since in the years he had operated the bucket truck he never had a bucket get stuck on a beam under a bridge. Although he testified that he did not perceive the area they were in to be dangerous since he had been working in similar locations during the day without incident, he did testify that the beams under the bridges were obstructions. He described the beams as measuring approximately 6 feet by 6 feet and appearing green in color. His training included the directive to operate the bucket controls in low speed and to use caution at all times when operating near obstructions or power lines.
Mr. Gaches testified that on the day of the incident he operated the bucket truck in accordance with the training he received and he faced the direction he intended the bucket to travel. Mr. Gaches explained that he was not attempting to dislodge the bucket in the moments prior to the incident because he did not even know that the bucket was in contact with the bridge at that time.
To establish a prima facie case of negligence, the claimant must establish the existence of a duty owed by a defendant to the claimant, a breach of that duty and that the breach was a proximate cause of the injury to the claimant (Nappi v Incorporated Vil. of Lynbrook, (19 AD3d 565 [2d Dept 2005]). In this instance, defendant has a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident (Gibson v Levine, 95 AD3d 1071 [2d Dept 2012]). The credible evidence established that Mr. Gaches, an experienced UBI operator, was not aware that the bucket had become stuck on a flange under the bridge. The Court finds that Mr. Gaches failed to exercise reasonable care in his operation of the bucket truck by operating it in such a manner as to cause the bucket truck to become stuck on the flange. Mr. Gaches conceded that he considered the beams or flanges under the bridge to be obstructions. It is foreseeable, given the shape of the beams, that a portion of the bucket could become lodged on one of the flanges. Mr. Gaches further failed to exercise reasonable care by operating the bucket in such a manner as to cause it to rise suddenly after it was caught on the flange causing claimant to strike his head. Again Mr. Gaches conceded that he was unaware that the bucket was caught on the flange until after he caused the bucket to jolt upward. Mr. Gaches did not look to see what may have caused the bucket to function improperly prior to the accident.
As a result the Court finds that claimant has established by a preponderance of the credible evidence that defendant was negligent in its operation of the bucket and was the sole cause of the accident.
Accordingly, the Court finds defendant one hundred percent liable for the happening of this accident. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.
Upon receipt of this Decision the parties are directed to contact the Court in order to schedule a trial on damages as soon as practicable.
The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this Decision.
March 23, 2015
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims