Opinion
# 2015-029-099 Claim No. 124858 Motion No. M-87372
12-11-2015
JAMES NEDWETZKY v. THE STATE OF NEW YORK AND THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION
HOFMANN & SCHWEITZER By: Paul T. Hofmann, Esq. LAW OFFICE OF THOMAS K. MOORE By: Joseph M. Nico, Esq.
Synopsis
In a claim against the State of New York and the New York State Department of Transportation for negligence, violations of Labor Law §§ 200, 240 and 241 and certain Industrial Code provisions, the court granted claimant's motion for summary judgment as to liability under Labor Law § 240(1). Claimant construction worker was injured working on the I-84 Bridge reconstruction project in 2014 when he was hit in the face by a bridge clamp being improperly used as a lifting device to hoist metal plates. The court also dismissed the first affirmative defense alleging that claimant's actions were the sole proximate cause of the accident, and held the determination of damages in abeyance pending trial of claimant's remaining causes of action.
Case information
| UID: | 2015-029-099 |
| Claimant(s): | JAMES NEDWETZKY |
| Claimant short name: | NEDWETZKY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK AND THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124858 |
| Motion number(s): | M-87372 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | HOFMANN & SCHWEITZER By: Paul T. Hofmann, Esq. |
| Defendant's attorney: | LAW OFFICE OF THOMAS K. MOORE By: Joseph M. Nico, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | December 11, 2015 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The impetus for James Nedwetzky's claim is an accident on June 17, 2014 in which he was injured doing construction work on the I-84 Bridge reconstruction project. The claim seeks damages against the State of New York and the New York State Department of Transportation ("DOT") for violations of Labor Law §§ 200, 240 and 241, negligence and unspecified provisions of the Industrial Code. Claimant now moves for partial summary judgment on his cause of action for violation of Labor Law § 240. Defendants oppose.
In support of the motion, claimant submitted an affirmation of his attorney ("Hofmann Aff."), a memorandum of law, a reply memorandum of law, and the following exhibits: the transcript of claimant's deposition (Exh 1); the contract between DOT and claimant's employer, Harrison & Burrowes Bridge Constructors (Exh 2); the C-2 Employer's Report of Work-Related Injury/Illness (Exh 3); an affidavit of claimant's co-worker, Jesse Lingle (Exh 5); an Employee Injury Report (Exh 7); and several photographs (Exhs 5, 6).
In opposition, defendants submitted an affirmation of attorney Joseph M. Nico ("Nico Aff.").
Claimant's Evidence
The I-84 Bridge ("the Bridge") spans the Delaware River connecting the States of New York and Pennsylvania. The State of New York, through DOT, owns the Bridge. In October, 2013, DOT contracted with claimant's employer, Harrison & Burrowes Bridge Constructors ("H&B") to be the general contractor for a reconstruction project at the Bridge (Exh 1 [deposition transcript ("T"): 9-14], and Exh 2 [contract]). Among other duties, claimant was tasked with installing metal plates. On June 17, 2014, he was under the Bridge standing on a scaffolding platform that was about 4 feet wide and 30 feet long, and his co-worker, Jesse Lingle, was about 20 to 30 feet above on the deck of the Bridge lowering metal plates to him. The plates weighed anywhere from 5 to 30 pounds (Exh 1, T: 14-35; Exh 5, Lingle Aff).
Claimant and his co-workers were told to lower the steel plates using a "rope and shackle" mechanism (Exh 1, T: 24, 29-31). Previously in his career, claimant had lowered steel plates using a crane, and not by way of a rope and shackle. He asked the foreman, George Lauster, why they were doing it that way and not by crane, and was told that the "supervisors" wanted it done that way. H&B had two cranes at the Bridge (Exh 1, T: 29-31; Exh 5, Lingle Aff.).
Claimant and Lingle testified to how they lowered the plates with a rope and shackle. The plates were secured with a steel "bridge clamp" weighing eight to ten pounds. The foreman had welded a shackle onto the side of the clamp, and a hemp rope was connected to a ring or hook on the shackle using a "carabiner," which is a metal loop with a spring-loaded gate. Lingle lowered the plates to the scaffold, then claimant unscrewed the clamp with a wrench, took the plate out, and sent "the bridge clamp back up" (Exh 1, T: 35-36). Lingle, a "journeyman iron worker," testified that he had been taught to connect ropes to shackles with knots, and when a carabiner instead of a knot is used to connect the rope, locking devices are needed because the gate on a carabiner "has a tendency or ability to open" (Exh 1, T: 17-20, 24-29, 35-38; Exh 5, Lingle Aff.).
There was no safety clasp or other type of locking device installed on the carabiner claimant and Lingle were given by the foreman to use. After Lingle had lowered a number of plates without incident, Lingle was pulling up the rope by hand, when the spring-loaded gate on the carabiner opened, and the carabiner slipped off the hook on the welded shackle, releasing the bridge clamp. The clamp fell about six feet and hit claimant in the face causing his injuries (Exh 5, Lingle Aff.).
H&B's Injury Report created after the incident states that: the carabiner in question was owned by Lauster, the foreman; after claimant was injured, Lingle replaced it with "an H&B carabiner that has a self-closing safety latch to prevent the clamp from slipping out"; and "[f]uture lifts of these small plates will utilize another method as bridge clamps are not designed for lifting purposes" (Exh 7). The report identifies the "Contributing Causes" of the incident as:
• Mr. Nedwetzky was standing directly under the carabiner and clamp while they were being raised.
• The carabiner did not have a self-closing safety latch to prevent the clamp from slipping out.
• Bridge clamps are designed for clamping purposes only, not as a lifting device (id.).
The report identifies the "Root Causes" of the incident as:
• This type of carabiner is never to be used for rigging purposes.
• Bridge clamps are not designed for vertical lifting. Vertical lifting clamps with either a hinged hoisting eye or a fixed hoisting eye should be used (id.).
The report identifies the following "Lessons Learned":
• Do not stand under suspended rigging or a load.
• Use the correct rigging for the task.
• H&B is responsible for and must inspect any rigging provided by others and used on our behalf.
• Use another method with approved rigging devices (id.).
Discussion
A party moving for summary judgment has the heavy burden to establish "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "It is well settled that courts may not consider evidence submitted in reply papers when determining whether a party met its initial burden on a summary judgment motion" (Shaw v Rosha Enters., Inc., 129 AD3d 1574, 1576 [4th Dept 2015]). When the moving party has met this burden, it then becomes incumbent upon the opposing party to demonstrate the existence of a material issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Two basic principles apply. First, the court's role is to ascertain whether relevant issues of fact exist, not to make findings on such issues (see Barr v County of Albany, 50 NY2d 247 [1980]). Second, the submitted evidence must be viewed in a light most favorable to the opposing party (see Crosland v New York City Tr. Auth., 68 NY2d 165 [1986]).
Labor Law § 240(1) requires that owners and contractors engaged "in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure," except certain owners of one- and two-family dwellings, "furnish or erect ... scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person" employed in the performance of such labor. The statute imposes absolute liability on contractors or owners where the failure to provide proper protection as required by the statute is a proximate cause of a worker's injury (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 [2011]).
Claimant maintains that the undisputed facts establish a prima facie case that defendants violated Labor Law § 240(1) by failing to provide proper hoisting methods and proper equipment for hoisting, lowering and securing metal plates, and that these failures were a proximate cause of his injuries. Defendants contend that claimant's evidence raises a disputed issue of material fact as to defendants' affirmative defense that there can be no liability under the statute if the worker's own actions were the sole proximate cause of the accident. Claimant responds that nothing in the evidence he submitted suggests that his actions were the sole cause, or even contributed to the accident, and that defendants have cited entirely inapposite case law.
The court agrees that claimant has established a prima facie case of liability under section 240(1). The affidavits, the verified claim, and the transcript of claimant's deposition are admissible to support the motion (see CPLR 3212[b] [motion to be supported by affidavits, pleadings, depositions, written admissions, and other available proof]; see also CPLR 105[u] [verified pleading treated as affidavit]; Dawley v McCumber, 48 AD3d 1270, 1271 [4th Dept 2008] [movant met initial burden with deposition testimony]). In addition, the Injury Report prepared by H&B contains significant admissions (see Matter of Guggenheim v Hedke & Co., 32 AD2d 1017, 1018 [3d Dept 1969], affirmed 27 NY2d 596 [1970] [employer's admission in injury report submitted to Workmen's Compensation Board corroborated hearsay]).
Claimant's evidence overwhelmingly establishes that he was directed by his foreman to use a lifting device that H&B admits should not have been used to lift or lower the metal plates, and was not designed for that purpose. Furthermore, H&B admits that using an improper and unsafe lifting method was the primary cause of the accident, and concedes its responsibility for rigging "provided by others." There is also no argument or dispute that the accident occurred due to a gravity-related hazard as the accident flowed directly from the application of the force of gravity on the carabiner, causing it to slip off of the hook, and on the bridge clamp, causing it to fall (see Runner v New York Stock Exch., Inc.,13 NY3d 599 [2009] [worker injured using "jerry-rigged device" to move heavy reel down stairs]; see also Hirrel v 384 Bridge Street LLC, 2015 NY Misc LEXIS 3857 [Sup Ct, New York County 2015, Kern, J.] [iron worker injured when unsecured cast iron pipe fell]).
Defendants argue that claimant's evidence raises a disputed issue of material fact as to the affirmative defense that claimant's negligence was the sole proximate cause of the accident (see Robinson v East Med. Ctr., LP, 6 NY3d 550 [2006] [finding no 240(1) liability where plaintiff sole proximate cause]). The court disagrees. Defendants assert that Lingle's affidavit shows claimant knew the unlocked carabiner was unsafe, and that knotting the rope to the carabiner would have been safer. This argument is untenable. Lingle was describing his own training to connect ropes by knots, not claimant's training, and claimant testified at his deposition that he had not used the "rope and shackle" method to lower metal plates, only cranes. Further, Lingle described the rope-knotting as being used instead of a carabiner to connect the rope directly to the shackle that was welded to the bridge clamp, and not to the carabiner as defendants represent. Besides, H&B has admitted to multiple failings that caused the accident, such as the failure to use a safety lock, the improper use of a hoist rigging to lower metal plates, and the failure to inspect equipment provided by another (here provided by the foreman). Last but hardly least, defendants have cited to cases that simply do not apply to this case as claimant was following the direction of the foreman, not flouting it by choosing to use a different, less safe method. Accordingly, it is hereby ordered that claimant's motion for partial summary judgment of liability against defendants on the cause of action for violating Labor Law § 240(1) is granted, and defendants' first affirmative defense is dismissed. The court's determination of damages will await the trial of claimant's remaining causes of action.
Even if Lingle's statements could be read to show some failure by claimant, which they do not, the same failure would be attributable to Lingle, thereby refuting defendants' argument.
December 11, 2015
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers considered:
Notice of Motion, Affirmation in Support and Exhibits
Memorandum of Law in Support
Affirmation in Opposition
Memorandum of Law in Reply