Opinion
# 2018-053-015 Claim No. 120851
12-13-2018
ROBERT M. KNAB, JR. v. NEW YORK STATE THRUWAY AUTHORITY
LIPSITZ GREEN SCIME CAMBRIA LLP BY: James T. Scime, Esq. Gregory P. Krull, Esq. LAW FIRM OF JANICE M. IATI BY: Janice M. Iati, Esq. Elizabeth Ognenovski, Esq.
Synopsis
After a bifurcated trial on the issue of liability, the Court found that the vehicle that struck claimant was a foreseeable result of the risk created by the contractor permitting claimant to work in the median without any protective device or traffic warning device and that it was not a superceding cause to relieve the NYSTA of its liability under Labor Law § 241 (6). The Court held that the NYSTA and the operator of the vehicle that struck claimant were each a proximate cause of the accident and the NYSTA's liability to claimant was 50%.
Case information
| UID: | 2018-053-015 |
| Claimant(s): | ROBERT M. KNAB, JR. |
| Claimant short name: | KNAB |
| Footnote (claimant name) : | |
| Defendant(s): | NEW YORK STATE THRUWAY AUTHORITY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120851 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | LIPSITZ GREEN SCIME CAMBRIA LLP BY: James T. Scime, Esq. Gregory P. Krull, Esq. |
| Defendant's attorney: | LAW FIRM OF JANICE M. IATI BY: Janice M. Iati, Esq. Elizabeth Ognenovski, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | December 13, 2018 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On December 16, 2010, claimant Robert M. Knab, Jr. was working in the median of the New York State Thruway at or near Milepost 486.2 in the Town of Westfield, County of Chautauqua when he was struck from behind by a vehicle operated by Drew Robertson that had left the highway and traveled into the median. On or about February 24, 2011, a notice of intention to file a claim was served upon the Office of the Attorney General of the State of New York. The claim was commenced on January 30, 2012 and the answer was filed by the State on April 25, 2012. The claimant alleged that the defendant was negligent and violated Labor Law §§ 200, 240, 241 (6) and Industrial Code regulation 12 NYCRR § 23-1.29.
The trial of this claim was bifurcated and addressed the issue of liability only. The trial was held in Buffalo on June 18, 20 and 21, 2018. During the course of the trial, testimony was received from the claimant, Craig Carlson, Eric Danzer, Kurt Covert, and Drew Robertson, as well as from claimant's expert witness, Arthur Dube and the defendant's expert witness, Kelly Thompson. Following the trial, the parties requested and were granted until October 14, 2018 to prepare and submit post-trial memoranda. TESTIMONY OF ROBERT M. KNAB JR.
The claimant testified that he was employed by Parsons Brinckerhoff (PB America) at the time of the accident, testifying that he has worked as a construction inspector for several engineering firms since 1989. Claimant testified that he worked primarily on projects involving the New York State Department of Transportation (DOT) that involved various aspects of highway and bridge construction inspection. (TT: 20-21). Claimant testified that his job duties included making certain that the work and materials used in construction were to specification, basic survey work, surveys to record measurements and volumes for payment, and testing of materials. He testified that actual construction work is taking place while he performs each of his job duties. The claimant testified that he received his job duties and direction daily from the engineer-in-charge (EIC) for the project. He testified that the EIC is often a DOT employee but the EIC is sometimes hired by the prime consultant (TT: 23-24).
References to the trial transcript will be made with the designation "TT" and the page number(s).
Claimant testified that the prime consultant for the New York State Thruway Authority (NYSTA) project was Foit-Albert Associates (Foit-Albert) and that his employer, Parsons Brinckerhoff (PB America) was retained as a sub-consultant to Foit-Albert. Up until the day of the accident, claimant testified that the construction inspection tasks performed by him were for the work of Oakgrove Construction (Oakgrove). He testified that this required him to perform basic survey work, inspect paving work, inspect the construction of a box culvert, and inspect drainage work performed adjacent to the highway surface. As a construction inspector, he was required to complete a daily report, which included a description of the work performed, the manpower and equipment utilized and quantities of same in order to record the construction activities and enable payments to contractors. He also testified that this daily report would include entries for the maintenance and protection of traffic (M&PT). Claimant testified that M&PT included signage, delineators, attenuator trucks and cones, which are all utilized to move traffic over or make them aware of construction workers in the area. He testified that his job is to record what M&PT are being utilized daily at the job site (TT: 33-34, 36-37).
Claimant testified that he performed basic survey work as a construction inspector both during the time that Oakgrove was performing construction work and after they had ceased work for the winter season. He testified that the work he performed during the winter season included recording original ground elevations, obtaining measurements of the lengths of highway installed, and locating drainage and sediment control locations. Claimant described that the ground elevation measurements included the area of the median, as well as the area between the right-of-ways to the Thruway's eastbound and westbound lanes. He testified that the ground elevation measurements were taken from the outer edge of the right-of-way on the eastbound lane to the outer edge of the right-of-way on the westbound lane (TT: 38-40).
Claimant testified that on the day of the accident, he was performing GPS survey work from the median, taking cross-sectional shots from the edge of the pavement on the eastbound lanes across the median to the edge of the westbound lanes. He testified that his work was directed by Kurt Covert, the Foit-Albert EIC. Claimant testified that he had been performing these same activities for a number of days prior to Oakgrove shutting down their operation for the winter season. Claimant worked with another construction inspector, Craig Carlson, who was employed by another sub-consultant (TT: 40-42). He testified that his employer, PB America, provided him with personal protective equipment consisting of a fluorescent vest and hard hat. Following Oakgrove's shutdown, claimant testified that they were not provided with any protection from traffic. He also stated that they were not provided with any signs to advise the traveling public that there were workers along the side of the highway (TT: 43-44).
On the day of the accident, claimant testified that Carlson drove to the work site and parked his truck in the median. He testified that Carlson did not leave his emergency light flashing on top of the truck as he was concerned that the truck battery would be drained. In addition, claimant testified that there were no barrels or cones placed to warn other vehicles where they were working. Claimant testified that he was working approximately 15 to 20 feet off the shoulder of the eastbound lane of the Thruway performing survey work and facing away from traffic when he was struck from behind by the vehicle he later learned was operated by Robertson (TT: 46-50).
Claimant testified that when he reported to work each day, he went to the field office trailer to receive direction from Covert on where to go and what to do. He also testified that Covert provided them with the work files so that they knew where to continue the survey work (TT: 51-53).
On cross-examination, claimant reiterated that Covert directed his work each day and his daily responsibilities were to inspect Oakgrove's activities and perform the GPS surveys. He testified that no one employed by the NYSTA directed his work. Claimant also confirmed that all of the work he performed from the beginning of December 2010 until the day of the accident was performed without any M&PT (TT: 53-56). He testified that he worked on the project with Oakgrove and Foit-Albert between August of 2010 and December 16, 2010. He testified that his work was directed at all times by Covert. Claimant testified that at no time after Oakgrove shut down operations for the winter was he provided with M&PT as he worked and he had never previously worked unprotected from live traffic (TT: 56-58). TESTIMONY OF CRAIG CARLSON
Carlson was a construction inspector like claimant and he was employed by Ravi Engineering. His job duties were similar to claimant as he performed construction inspection tasks and survey work. Carlson testified that his work was also directed by Covert, who he identified as the EIC employed by Foit-Albert (TT: 70-73). Carlson testified that they met with Covert daily to see what work they were to perform and he would show them where the equipment was located that they were to use. He also stated that Covert directed them where to work and what they were to do. Carlson testified that no one other than Covert directed his work, including the survey work. As claimant had testified, Carlson stated that their construction activities were to inspect Oakgrove's work to see that it was done correctly and they were to perform survey measurements used to compute payments to Oakgrove. (TT: 74-75).
Carlson testified that on the day of the accident, he and claimant were both working independently in the median. He testified that he did not witness claimant being struck by the vehicle as he was working on the other side of an embankment where the highway was not visible. Carlson became aware of the accident when the claimant called him on his cell phone. He testified that when he climbed the embankment he could see a group of people standing in the area and there were some vehicles. Carlson estimated that he was then about 200 feet from claimant (TT: 76-78).
On cross-examination, Carlson testified that he too prepared daily reports that were provided to Covert. He also confirmed that Oakgrove had shut down their operations for the winter and that they continued to work performing the GPS survey cross-sections. He described this work as requiring them to move within the median, take a cross-section and then move 50 feet. Carlson testified that he was not directed in his work by the NYSTA, only Covert (TT: 80-83). He identified the truck that he operated on the day of the accident in photo Exhibit K. Carlson testified that he did not leave the light flashing on top of his truck when he pulled off the shoulder and stopped the vehicle because he was concerned that the battery would go dead. His understanding was that he was instead to utilize cones provided by Oakgrove and place one at the front of the truck and another at the back (TT: 84-87).
On redirect, Carlson testified that he received directions from Covert as to what mileposts they were to run cross-section GPS measurements, including those on the date of the claimant's accident (TT: 100). He also testified that Covert instructed them that when driving on the Thruway under the speed limit they were to use the light bar on top of the truck, but when they parked off the Thruway they were to turn the light bar off (TT: 101-102). Covert testified that although it was his practice to place cones in the front and back of his vehicle as described in his direct testimony, he had no recollection whether he did so on the day of claimant's accident (TT: 104). TESTIMONY OF ERIC DANZER
Eric Danzer was a construction supervisor for the Buffalo Division of the NYSTA at the time of the claimant's accident and testified that he has been employed by the NYSTA for 12 years. Danzer identified the subject construction project number as TAB 10-15 and D213951. He testified that his role was to oversee the execution and successful completion of the project. Danzer stated that on these road projects, the NYSTA assigns an EIC who is the person on the project site that will oversee the day-to-day operations of the contractor. He testified that the EIC may be an employee of the NYSTA or one from a consulting firm retained by the NYSTA. With respect to the project TAB 10-15, the NYSTA entered into a contract with Foit-Albert to oversee inspection of the project and to function as the EIC (TT: 111-114). Danzer testified that he would have been assigned as the EIC for this project if the NYSTA had not retained Foit-Albert and that they were given the same authority that NYSTA inspectors would have had on the project. He testified that Foit-Albert was acting as the agent of the State for this particular project (TT: 114-115). Danzer testified that the EIC designated by Foit-Albert was Kurt Covert and that pursuant to the contract, Foit-Albert was to provide construction inspection services for the project (TT: 116).
On the project, Danzer testified that he attended project progress meetings that were led by the EIC, namely, Covert. Danzer stated that he would provide guidance or assistance to Covert if issues arose, but that the day-to-day operations of the project and the decisions attendant thereto were made by Covert and Foit-Albert. He also testified that Foit-Albert made decisions as to the means and methods to be utilized by their sub-consultants on the project (TT: 116-118). He stated that he first learned of claimant's accident on the day that it occurred and then later received a copy of the NYSTA accident report (TT: 118-119). Danzer identified Exhibit II as the NYSTA accident report that was prepared by Covert following claimant's accident and that it was the official NYSTA accident report form. He testified that this accident report indicated that there was no M&PT in place at the time of the accident. Danzer testified that the type of work being performed that day by claimant and Carlson put their safety at risk as they were performing survey measurements adjacent to the Thruway with vehicles traveling next to them at 65 mph (TT: 132-135). He testified that the only means of protection on the job that claimant was provided was personal protective gear consisting of a hard hat and reflective vest. He testified that the authority to issue safety or protective equipment was delegated to Foit-Albert. Finally, Danzer agreed that a person's personal safety was at risk when working in a median that was 15 to 20 feet off the Thruway (TT: 138-139). TESTIMONY OF KURT COVERT
Kurt Covert was employed by Foit-Albert for 25 years. He testified that the subject highway project was a milling and paving job that also required slope flattening, which he described as adding or removing fill so as to flatten or build-up the elevation of the slope in the median so that they would not be as steep. He testified that the GPS survey shots were taken so as to determine the amount of fill material added or removed in order to pay the contractor, who was Oakgrove (TT: 162-165).
After examining the engineer's daily diary (Exhibit U), Covert confirmed that the subject job, TAB 10-15, began on August 30, 2010. Covert testified that he was the project engineer for Foit-Albert, who was the prime consultant. He testified that as project engineer, it was his responsibility to complete the engineer's daily diary. He also testified that his job was to inspect Oakgrove's work daily and make certain that it was performed in accordance with the plan specifications (TT: 168-175). One part of the engineer's daily diary was entitled M&PT. This daily form was generated by the NYSTA and it was Covert's responsibility as project engineer to fill it out daily (TT: 181-184).
Covert testified that he also had the responsibility to supervise the consultant inspection staff. He stated that he assigned the construction inspectors their daily tasks, i.e., where to go and what part of the project to inspect (TT: 174-176). He testified that the construction inspectors would fill out an inspector's report each day and provide it to him and that he would then review it and sign off on the report (TT: 181-182). Covert testified that although he had 25 years experience on roadway construction projects, he was not familiar with the regulations in the New York Industrial Code that relate to the protection of workers near roadways. He testified that the GPS survey shots were taken on the Thruway from the median and the edge of the pavement shoulder (TT: 190-192). Covert was aware and agreed that vehicles traveling on the Thruway could leave the roadway for a number of reasons, including losing control of the vehicle, drifting off the road or from being distracted (TT: 194-195). He also agreed that M&PT are placed for the protection of both those operating vehicles and for the workers. Covert testified that on the day of claimant's action, he was aware that no M&PT was in place (TT: 196, 198). Covert testified that on the morning of the accident, he filled out instructions for claimant and Carlson on the white board and observed them in the field office before they left to go and perform their job duties. Covert agreed that he put nothing on the whiteboard for them concerning the placement of M&PT (TT: 199-200).
Covert testified that Oakgrove shut down their operations for the winter on November 29, 2010. When they closed operations, Covert believed that they took all of their M&PT equipment with them. Covert agreed that an attenuator truck could have then been rented for their use for $3,000 per month (TT: 208-209). He also testified that he was aware of an accident that occurred on December 1, 2010 when a tractor trailer went off the highway and damaged the pier protection and a guardrail at the construction site and that a NYSTA crew placed barrels in front of the damaged guardrail (TT: 210-211).
Covert testified that he first learned of claimant's accident at about 9:30 a.m when he received a call from claimant stating that he had been hit by a car. He drove out to the work site and found claimant lying in the median with a vehicle off the road down further east from claimant. Covert stated that two traffic supervisors from the NYSTA came later to the accident scene after he left to go to the hospital where claimant was transported (TT: 212-213).
On cross-examination, Covert testified that he was the person who directed and sent out claimant and Carlson to perform survey work. Covert also stated that claimant was wearing a reflective vest and a hard hat which he believed was appropriate for the work they were performing in the median of the Thruway (TT: 219). He testified that he never advised claimant and Carlson that the vehicle they were using to go from the field office to the work site was equipped with an amber light, even though he was aware that it was NYSTA policy that a vehicle parked on the paved shoulder should have an amber light on, but not if parking in the grass. Covert testified that he believed that their vehicle was parked on the grass the day of the accident. He also testified that he never spoke with claimant or Carlson about the use of cones (TT: 223-224). TESTIMONY OF ARTHUR DUBE
Arthur Dube was retained by claimant as an expert witness and is currently employed as a part-time safety professional with the John W. Danforth Company in North Tonawanda, New York (TT: 239-240). He testified that he was formerly the OSHA Director in the Buffalo area between 2002 and 2013 (TT: 247-249). In that role, Dube stated that he worked with the NYS Department of Labor and the Public Employees Safety and Health. As such, he testified that he was familiar with the provisions of the New York Labor Law and Industrial Code Rule 23 (TT: 251-252). Dube testified that claimant's work performing GPS survey shots within the Thruway median placed him in close proximity to the traveling portion of the highway (TT: 266). He testified that in 2010, there were various devices available for use as M&PT that would direct traffic away from workers like claimant. As examples, Dube testified that barrels have been utilized as a barricade or signage and arrow boards could have been incorporated to alert vehicular traffic of workers ahead. In addition, he stated that an attenuator truck could have been utilized (TT: 267). Dube testified that he found that in this instance, no protection or warning systems were in place to protect the claimant and Carlson (TT: 271). Referring to the Federal Manual of Uniform Traffic Control Devices (MUTCD), Dube testified that the nature of the work being performed by claimant was characterized as short duration or mobile operations, which still required the use of these devices to provide a safe work site (TT: 274). Dube testified that nothing was done at claimant's work site to comply with 12 NYCRR 23-1.29. On cross-examination, Dube reiterated that no one provided claimant and Carlson with any form of M&PT while they worked in the median (TT: 285). On redirect examination, Dube explained that the purpose of M&PT is to warn or alert vehicular traffic to permit them time to adjust how they proceed through a work zone and that the driver of the vehicle, Drew Robertson, was not given that opportunity (TT: 295). TESTIMONY OF KELLY M. THOMPSON
Kelly Thompson holds a degree in civil engineering and has been employed for the past nine years with Bergmann Associates in their Buffalo office. Thompson was previously employed by DOT in the construction division between 1984 and 2000. During this time period and up to the present, Thompson stated that she has continuously worked in the field of traffic safety (TT: 301-304). Thompson testified that she was familiar with the MUTCD and its use as a reference for guidelines and requirements when designing and implementing traffic zones (TT: 305-306). She also stated that in her career she has worked in construction inspection, survey work and as a resident engineer. In these roles, Thompson testified that she became familiar with M&PT. She also stated that she had experience implementing contracts between the NYSTA and engineering consultants, including providing inspectors to work under a resident engineer as in this claim (TT: 307-309).
Thompson testified that she reviewed the contract between the NYSTA and Foit-Albert and that the DOT standard specifications are referenced with that contract (TT: 311-312). She stated that Foit-Albert was to provide construction inspection services, survey if necessary and provide administration of the construction project for the NYSTA. With respect to the issue of providing M&PT, Thompson stated that the resident engineer is obligated to follow the guidelines and requirements of the MUTCD and that they have a responsibility to add traffic control devices to a project as necessary. She testified that Covert was assigned by Foit-Albert as the resident engineer for the subject project and that he had authority and the ability to add additional traffic control devices on this project. Thompson described claimant's work as providing cross-sectional surveys in the median area and that this was a mobile operation (TT: 313-314). She testified that the term "mobile operation" is defined in the MUTCD. Referencing the 2009 edition of the MUTCD (Exh. LL), Thompson stated that what claimant was performing is categorized as mobile work which is work that requires intermittent or continuous movement (TT: 315-317).
Thompson testified that on the day of the accident, claimant was working near milepost 486 and that the accident occurred at milepost 486.1 (TT: 318). She testified that the MUTCD provides that where mobile work is being performed within 15 feet of the traveling roadway, traffic warning devices are to be utilized for M&PT. Specifically, Thompson testified that the MUTCD recommends the utilization of a rotating strobe light and that the NYSTA supplements this recommendation by requiring that cones be placed next to any fixed structure that might be within 15 feet of the roadway (TT: 323-324). She testified that it was the responsibility of the prime consultant, Foit-Albert, to implement the applicable provisions of the MUTCD. This responsibility extended also to sub-consultants such as PB America, claimant's employer, that were retained by Foit-Albert in connection with their contract with the NYSTA (TT: 324-325). Thompson testified that a rotating strobe light on top of a vehicle was a requirement of the MUTCD and of the NYSTA. She opined that signage, fencing, barrels or an attenuator truck were not appropriate for use as M&PT for the mobile operation work being performed by claimant and Carlson (TT: 326-329).
On cross-examination, Thompson testified that M&PT is an important part of the job of a resident engineer on a highway construction project. In her opinion, once Oakgrove shut down for the winter it became the responsibility of Foit-Albert to make certain that there was adequate M&PT (TT: 331-332). Thompson explained that the cones that the NYSTA requests to be placed in front of and behind the parked vehicle in the median are to identify the front and back of the vehicle and provide notice to moving traffic of the presence of a work zone. It was her opinion that the vehicle operated by Carlson should have had its amber light flashing and that the resident engineer, Covert should have instructed them to do so (TT: 333-335). She agreed that it is a well known risk in the field of highway safety that vehicles may run off the road (TT: 338). Thompson also agreed that the purpose of providing notice to drivers of a work zone is so they will respect it and slow down (TT: 343). Thompson testified that Foit-Albert should have provided some form of warning to vehicles on the highway that claimant and Carlson were working in the area and at a minimum, this should have included the flashing light on top of their truck (TT: 373). She also was of the opinion that the MUTCD required Foit-Albert to ensure that some form of protective device or warning was being employed to protect claimant and Carlson (TT: 376). Finally, she confirmed that nothing whatsoever was utilized to alert or direct vehicular traffic on the Thruway that claimant and Carlson were working in that area (TT: 376).
The affidavit of Kelly Thompson, P.E. was later received into evidence as Exhibit 1 (TT: 429). This affidavit states opinions that are consistent with the testimony she provided and supporting her opinion that Foit-Albert was negligent in the performance of their work during the time that claimant and Carlson were performing survey work. In addition, this affidavit states that Foit-Albert should have instructed Carlson to park his truck more than 20 feet away from vehicular traffic and the paved shoulder of the highway. In addition, the vehicle should have been parked no less than 0.10 of a mile from where claimant and Carlson were working. The affidavit also sets forth her penultimate opinion that Foit-Albert failed to provide proper traffic safety protection to claimant and was thereby negligent. TESTIMONY OF DREW ROBERTSON
Drew Robertson was the driver of the vehicle that left the Thruway and struck claimant. He testified that on the day of the accident that he was a 20 year old student residing in Cleveland, Ohio. At that time, he stated that he was traveling to Rochester, New York to look for an apartment (TT: 392-393). He testified that he believes that he was traveling in the left lane immediately prior to the accident. In the quarter mile before the accident, Robertson did not recall observing any vehicles stopped along the shoulder of the median (TT: 400). He testified that the first thing he recalled happening was that the steering wheel jerked to the left and his car left the highway and dipped into the median. A tractor trailer traveling in the opposite direction honked at him and he then swerved to his right before slowing and bringing his car to a rest. Robertson testified that at the moment he left the Thruway, he was traveling 65 mph (TT: 397-398).
Once he got into the median, he testified that he applied his brakes and was attempting to avoid hitting the tractor trailer that had honked at him. He denied being "asleep at the wheel" (TT: 400-402). Robertson testified that he did not recall striking claimant, nor could he recall hearing his vehicle strike anything. He testified that when he got out of his vehicle, he noticed that there was damage to the right side of his vehicle and he assumed that he had hit a road sign. Robertson testified that it was only then that he became aware that he had hit claimant (TT: 403-405). He stated that photo exhibit O-1 accurately depicts the condition of the road and he then marked with two blue lines on photo exhibit O-2 the path his vehicle took off the Thruway and into the median (TT: 408-410). Robertson testified that he was given a traffic ticket for an unsafe lane change violation but could not recall what the disposition was for that ticket. Exhibit HH was later received into evidence which indicates that the disposition was a guilty plea to an unsafe lane change (TT: 411-413, 423). On cross-examination by claimant's counsel, Robertson testified that he saw no warning lights prior to the accident (TT: 416). He also testified that he did not see any indication that there were workers at or near the shoulder of the highway. If there had been any indication that there were workers in that area off the road, he would have followed the directions that the signs would indicate and moved to his right (TT: 418-419). LAW AND ANALYSIS
At the trial, claimant asserted causes of action alleging a violation of Labor Law § 200, common law negligence and Labor Law § 241 (6). Labor Law § 200 is a codification of an owner or contractor's common-law duty to provide workers with a reasonably safe place to work (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 505 [1993]). These cases fall into two broad categories, namely, those which involve the manner in which the work is performed where it is established that the property owner or general contractor exercised supervisory control over the activity that brought about the injury (Comes v New York State Elec. and Gas Corp., 82 NY2d 876 [1993]); and those cases where a dangerous, defective or unsafe condition caused the claimant's accident and the property owner or general contractor created the condition or had actual or constructive notice of its existence (Bannister v LPCiminelli, Inc., 93 AD3d 1294 [4th Dept 2012]; see also Cappabianca v Skanska USA Bldg. Inc., 99 AD3d 139 [1st Dept 2012]; Aguilera v Pistilli Constr. & Dev. Corp., 63 AD3d 763 [2d Dept 2009]; Cook v Orchard Park Estates, Inc., 73 AD3d 1263 [3d Dept 2010]).
In order to establish a Labor Law § 200 cause of action based upon the manner in which the work was performed, the claimant must establish that the property owner or general contractor exercised supervisory control, i.e., they had "the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition" (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]). The courts have held that the requisite supervisory control requires that the owner or contractor have more than a mere presence at the work site or more than a mere authority to enforce general safety standards (Soshinsky v Cornell Univ., 268 AD2d 947 [3d Dept 2000], citing Moutray v Baron, 244 AD2d 618, 619 [3d Dept 1997], lv denied 91 NY2d 808 [1998]). It has been held that an owner or contractor who exercises general supervisory authority at the work site to oversee the progress of the work or to inspect the work as it proceeds is not sufficient control to impose liability under Labor Law § 200 (Alexandre v City of New York, 300 AD2d 263 [2d Dept 2002], citing Kvandal v Westminster Presbyt. Socy. of Buffalo, 254 AD2d 818 [4th Dept 1998]). The standard to be applied is whether the owner or contractor "gave anything more than general instructions as to what needed to be done, as opposed to how to do it" (Jones v County of Erie, 121 AD3d 1562, 1563 [4th Dept 2014], citing O'Sullivan v IDI Constr. Co., Inc., 28 AD3d 225, 226 [1st Dept 2006 ], affd 7 NY3d 805 [2006]).
In the present claim, it is undisputed the NYSTA owns, maintains and controls the New York State Thruway and that no employee of the NYSTA directed and controlled the activities of claimant. The testimony at trial established that claimant's activities were directed by Kurt Covert, an employee of Foit-Albert and the project engineer or EIC. Claimant contends that Foit-Albert was acting as the agent of the NYSTA, which is based solely upon the trial testimony of Eric Danzer, a construction supervisor for the NYSTA Buffalo Division. (TT: 115). In his testimony, Danzer also identified the subject construction project contract documents and designation as TAB 10-15. However, the contract between the NYSTA and Foit-Albert (Exhibit R) for TAB 10-15 clearly defines Foit-Albert as an independent contractor, stating at Section 3.4 - Independent Contractor, "[Foit-Albert] is and shall be, in all respects, an independent contractor in performing services pursuant to this Agreement." Furthermore, claimant's employer, PB America, contracted directly with Foit-Albert and the aforementioned contract at Section 3.5 - Subcontracting, provides that [Foit-Albert] shall be fully responsibile to [NYSTA] for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, just as [Foit-Albert] is responsible to [NYSTA] for the acts and omissions of persons directly employed by it." As such, the Court finds that the claimant has failed to establish a violation of Labor Law § 200 as Foit-Albert was an independent contractor and not an agent of the NYSTA. Furthermore, there is no proof to establish that the NYSTA exercised supervision, direction or control over the activities of claimant sufficient to support this cause of action or that it had actual or constructive notice of the unsafe manner in which the survey work was being performed (Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 877-878 [1993]).
Similarly, claimant failed to establish the cause of action for common law negligence as I find that the NYSTA did not exercise any supervision, direction or control over claimant's work. Furthermore, I find that the NYSTA did not create the dangerous condition that was a proximate cause of claimant's accident, i.e., the failure to erect protective and/or traffic warning devices.
The claimant also asserts a cause of action alleging a violation of Labor Law § 241 (6), which imposes a nondelegable duty upon owners and general contractors to provide reasonable and adequate protection and safety to construction workers. This statute has been held to apply to work place accidents involving highway repaving and road construction projects (Mosher v State of New York, 80 NY2d 286 [1992]; Gonnerman v Huddleston, 78 AD3d 993 [2d Dept 2010]). The NYSTA contends that the GPS survey work being performed by claimant at the time of his accident is not a protected labor activity protected by this statute. They assert that as Oakgrove had shut down its construction operations for the winter on November 29, 2010, that construction work had thereby ceased. Specifically, the NYSTA contends that this survey work was not construction work and was a "separate phase of work from Oakgrove's construction work." And even if it is not considered a separate phase of work, the NYSTA contends that the factors set forth in Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 883 (2003) apply and that claimant's employer, PB America, was not retained to perform work that is a protected New York Labor Law activity.
Defendant's posttrial submission at paragraph 168, page 44.
Defendant's posttrial submission at paragraph 169-172, page 44-46.
The Court of Appeals in Nagel v D & R Realty Corp, 99 NY2d 98 (2002), referencing the legislative history of Labor Law § 241 (6), recognized that the Legislature sought broad protection for workers from industrial accidents specifically in connection with construction, demolition or excavation work and that what constitutes construction work within the meaning of the statute is set forth at 12 NYCRR 23-1.4, which at subparagraph (b)[13] defines "construction work" as including:
"All work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure and includes, by way of illustration but not by way of limitation, the work of hoisting, land clearing, earth moving, grading, excavating, trenching, pipe and conduit laying, road and bridge construction, concreting, cleaning of the exterior surfaces including windows of any building or other structure under construction, equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose." (emphasis added).
The NYSTA contends that the claim must be dismissed as claimant's survey work on the median of the Thruway during the winter shutdown does not constitute construction activity within the meaning of Labor Law § 241 (6). The claimant's employer, PB America was retained by Foit-Albert as a subcontractor in accordance with Section 3.5 of its agreement with the NYSTA (hereafter, "the Agreement", Exhibit R). This Agreement defines the work to be performed in Schedule A - Scope of Services, which is to "provide sufficient staff to perform construction inspection support services for contract TAB 10-15 (D213951) 2R Pavement Rehabilitation Between Milepost 483.0 and Milepost 496.0 Eastbound. 1R Pavement Rehabilitation of Ramps at Interchanges 60 (Westfield) and 61 (Ripley), and Ramp Bridge Rehabilitation at Interchange 60 in the Buffalo Division." The scope of services further describes in detail the construction activities to be performed and as it relates to the construction inspectors, provides that the "[d]uties of inspectors may include but not be limited to inspection of the contractor's work, keeping contract records, review of shop drawings and submittals, testing construction materials, plant inspections, survey and other related duties as assigned . . ." (emphasis added).
The Appellate Division, Fourth Department has already determined in claimant's related Supreme Court action that: (1) Foit-Albert was retained by the NYSTA to inspect Oakgrove's work; (2) Foit-Albert subcontracted some of that work to claimant's employer, PB America; (3) Oakgrove began to perform drainage and clearing work in August 2010, but suspended that work in November for the winter shutdown period; (4) before that shutdown Oakgrove determined that some of the elevation measurements provided by the NYSTA were incorrect; (5) Foit-Albert's contract with the NYSTA provided that its inspection responsibilities also included surveying; and (6) Foit-Albert assigned claimant to take new measurements during Oakgrove's winter shutdown (Knab v Robertson, 155 AD3d 1565 [4th Dept 2017]).
It is thereby clear that the Appellate Division, Fourth Department has determined that the construction support services that claimant provided were in conjunction with the construction activities performed by Oakgrove that are set forth in the Schedule A scope of work. The Court finds that claimant's activities were performed on a continuous basis and were contemporaneous with and essential to Oakgrove's road construction work (see Van Buskirk v State of New York, 303 AD2d 970 [4th Dept 2003]) and Reisch v Amadori Constr. Co., 273 AD2d 855 [4th Dept 2000]). Claimant's trial testimony was consistent with the Fourth Department's prior determination in Knab that the GPS surveys were performed both during the time that Oakgrove was performing construction work and after they had ceased operations during the winter season. The fact that claimant's work continued through Oakgrove's winter shutdown is a distinction without a difference as it is undisputed that claimant was still performing duties requested by Oakgrove that were specifically set forth within the scope of work defined by the Agreement and which have been found to be directly related to Oakgrove's construction activities.
In the alternative, the NYSTA contends that claimant's survey work is not a protected New York Labor Law activity, citing as support the Court of Appeals decision in Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878 (2003). In that case, the plaintiff had appealed to the Second Circuit, which then certified the question to the Court of Appeals that was answered in the affirmative, declaring that whether a particular inspection falls within Labor Law Section 240 (1) must be determined on a case-by-case basis (Id. at 883). The Court finds that the decision in Prats does not support the NYSTA's position and finds instead that the testimony at trial established that claimant's construction inspection activities were ongoing, contemporaneous and directly integrated with the work being performed by Oakgrove under contract TAB 10-15. As such, I find that the GPS survey work being performed by claimant at the time of his accident was not too remote and was sufficiently related to covered work under Labor Law § 241 (6).
A claimant alleging a violation of Labor Law § 241 (6) must establish that there was a violation of a specific safety regulation promulgated by the Commissioner of the NYS Department of Labor and that the claimed violation was a proximate cause of his injury (Ross v Curtis-Palmer Hydro-Elec. Co., (Id. at 501-502). The claimant asserts in this action that the defendant failed to comply with Industrial Code regulation 12 NYCRR § 23-1.29 (a), which provides:
"Whenever any construction, demolition or excavation work is being performed over, on or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons." (emphasis added).
Claimant testified that he was working approximately 15 to 20 feet off the shoulder of the eastbound lane of the Thruway when he was struck from behind by Robertson's vehicle. The Court finds after listening to claimant's testimony and evaluating his demeanor while doing so that he was credible and as such, I find that at the time of his accident, the claimant was performing work within the scope of work of contract TAB 10-15 and within the contract work site and that such work was performed in the median adjacent to the eastbound lane of the Thruway. I also find that claimant's work placed him in close proximity to the eastbound lane of the Thruway where the speed limit is 65 mph and that he was not provided with protection from vehicular traffic. The failure to provide claimant with any protection from vehicular traffic as he worked in the median created a hazardous and dangerous condition in violation of 12 NYCRR § 23-1.29 (a) (Gonnerman v Huddleston, 78 AD3d 993, 995 [2d Dept 2010] and McGuinness v Hertz Corp., 15 AD3d 160, 161 [1st Dept 2005]). I find that the claimant's expert witness, Mr. Dube and the NYSTA's expert witness, Ms. Thompson, were credible in providing testimony in the area of traffic safety. In this regard, both experts referred to and the Court recognizes the MUTCD as authoritative. Utilizing the definitions and criteria set forth in the MUTCD, Dube characterized the nature of claimant's work as short duration or mobile operations, while Thompson characterized the claimant's work as mobile work. Both experts agreed that Foit-Albert was negligent and that consistent with the MUTCD guidelines and requirements, traffic warning devices should have been utilized. They disagreed only as to the type of traffic warning devices that could or should have been utilized. Dube testified that Foit-Albert could or should have utilized signage, fencing, barrels or an attenuator truck, whereas Thompson opined that only a strobe light on the truck and the placement of cones consistent with NYSTA policy was required and appropriate. Both expert witnesses agreed that Foit-Albert did not comply with the provisions of 12 NYCRR 23-1.29. Accordingly, this Court finds that claimant has established a violation of Labor Law § 241 (6) as the NYSTA violated 12 NYCRR § 23-1.29 (a) and this violation was a proximate cause of claimant's accident and resulting injuries.
Finally, with respect to the issue of proximate cause, the Court finds that Mr. Robertson, the driver of the vehicle was not the sole proximate cause of the accident. The Court has previously determined the proof established that no protective or traffic warning device of any type was utilized or operational on the day of the accident. Both expert witnesses testified that the purpose of traffic warning devices is to alert vehicular traffic and provide them with notice and time to adjust or slow their speed and/or alter their direction through a construction or work zone in order to protect the safety of construction workers, like claimant, working in close proximity to vehicular traffic. And both experts agreed that it is a well known risk in the field of highway safety that vehicles may run off the road and that it was foreseeable that someone on the Thruway in the winter traveling at 65 mph could run off the road. Robertson, who testified credibly, stated that he was traveling in the left or passing lane of the eastbound Thruway when in the quarter mile immediately prior to the accident, he did not recall seeing any vehicles stopped along the shoulder of the median. He testified that at this point he recalled the steering wheel jerking in his hands to the left, whereupon his car left the Thruway and traveled into the median. Robertson testified that there were no warning lights prior to the accident or any indication that there were workers at or near the shoulder of the highway. The Court finds that the intervening act of Robertson's vehicle leaving the Thruway and striking claimant from behind in the median was a foreseeable consequence of the lack of any protective or traffic warning device.
Robertson acknowledged that he received a traffic ticket for an unsafe lane change but could not recall the disposition of that ticket. Exhibit HH was later received into evidence, which indicates that the disposition of the ticket was a guilty plea.
Therefore, I find that Robertson's vehicle was a foreseeable result of the risk created by permitting claimant to work in the median without benefit of any protective device or traffic warning device and that it was foreseeable that a motor vehicle could leave the highway and enter the median and strike claimant where he was working and cause his injuries. This intervening act does not serve as a superceding cause to relieve the NYSTA for its responsibility to enforce the provisions of the Industrial Code and of Labor Law § 241 (6) (Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]). However, I do find that Robertson was also negligent in the operation of his vehicle. As a result, I apportion 50% liability against the NYSTA and 50% liability against Robertson for causing the accident and claimant's resulting injuries.
The NYSTA's motion for a directed verdict at the close of the trial is denied as numerous questions of fact were found by the Court to exist that were resolved as detailed in the decision above. As to any objections upon which this Court reserved decision during the course of the trial and as to any other motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied.
Finally, the NYSTA was created to construct, reconstruct, improve, develop, maintain and operate the New York State thruway system (Public Authorities Law § 353). The NYSTA has the power to sue and be sued and the power to make contracts. It is not an arm of the State of New York (Public Authorities Law § § 353, 354). The contracts for the subject thruway project were entered into by the NYSTA. No proof was adduced at trial to show any involvement in the subject project or in claimant's injuries by the State of New York, the DOT, an agency of the State and not a separate entity, or by the Canal Corporation. Accordingly, all causes of action asserted in the claim as against the State of New York, DOT and the Canal Corporation are dismissed.
The Court has amended the caption to reflect the only defendant. --------
The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability as against the NYSTA only in accordance with this decision. The Court will set this matter down for trial on the issue of damages as soon as practicable.
December 13, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims