Opinion
# 2019-032-052 Claim No. 128335 Motion No. M-93884
09-19-2019
KENNETH STIGALL and JOY STIGALL v. THE STATE OF NEW YORK
Sacks and Sacks, LLP By: Adam S. Levien, Esq. Smith, Mazure, Director, Wilkins, Young & Yagerman, P.C. By: Daniel Y. Sohnen, Esq.
Synopsis
Claimants' motion for summary judgment is denied. Questions of fact remain as to whether defendant violated Labor Law §§ 240 (1) and 241 (6) and as to whether the violations proximately caused the injuries complained of.
Case information
| UID: | 2019-032-052 |
| Claimant(s): | KENNETH STIGALL and JOY STIGALL |
| Claimant short name: | STIGALL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128335 |
| Motion number(s): | M-93884 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Sacks and Sacks, LLP By: Adam S. Levien, Esq. |
| Defendant's attorney: | Smith, Mazure, Director, Wilkins, Young & Yagerman, P.C. By: Daniel Y. Sohnen, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | September 19, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The instant claim was filed on August 10, 2016, asserting several causes of action sounding in common law negligence and violations of Labor Law sections 200, 240 and 241 (6) and various provisions of the Industrial Code of the State of New York. Claimants now move for summary judgment on the causes of action alleging violations of Labor Law sections 240 (1) and 241 (6). Defendant opposes the motion. For the following reasons, the Court denies claimants' motion.
FACTS
On July 7, 2016, the date of claimant Kenneth Stigall's accident, Mr. Stigall was employed as a structural steel ironworker for Tully Construction Company Inc. (Tully) working on a bridge rehabilitation project at the Major Deegan Expressway. The project involved reinforcing old iron on a bridge located there.
On the date of the accident, Mr, Stigall was instructed by his foreman to continue work he had performed the previous day, which involved grinding rust off existing steel using an electric grinder. This work was performed on the "iron shell" of the northbound bridge of the Major Deegan Expressway (Exhibit 3, p. 70 [Claimant's Deposition Testimony]). To access the location of this work, Mr. Stigall climbed scaffolding from Exterior Street, which is located under the two outside east lanes of the northbound bridge. He then stepped off the scaffolding and onto a portion of intact roadway, and walked to a Tully van located on the roadway to retrieve his work tools and safety equipment, which included a body harness with a lanyard. After putting on the body harness and lanyard, Mr. Stigall walked to the point where the intact roadway ends and the exposed iron frame of the bridge begins. Before stepping off the roadway onto the adjacent iron frame of the bridge, Mr. Stigall "tie[d] off" onto an independent safety line that was about "waist and chest high" (Exhibit 3, p. 72). Mr. Stigall described this safety line as a line that ran "north and south" for about 30 feet (id.). Once he walked the entirety of that safety line on the iron frame of the bridge, he reached a point where he needed to go "back to the west," which required him to unhook his lanyard from the north/south safety line and then "tie off" to a different line and get a "retractable" (id. at pp. 72-73). Mr. Stigall then walked another fifteen or twenty feet, wearing the retractable, to his work location. Once Mr. Stigall reached his work location, he used the electric grinder until it burned out. He then proceeded to walk back across the iron frame to retrieve another grinder from the Tully van. When he reached the point where he was required to remove the retractable and hook back into the north/south safety line, he unhooked his retractable and observed another retractable "going across some iron or a cord of something" (Exhibit 3, p. 88). A surveyor, Christopher Stewart, was standing on the iron frame at that location, requiring Mr. Stigall to step around him. Mr. Stigall testified that he stepped over the surveyor's cord with his left foot. He then proceeded to step over the cord with his right foot, but "something grabbed" his right foot, which caused him to fall (Exhibit 3, p. 90). As Mr. Stigall fell off the iron frame, his right shoulder struck the beam he was standing on. His left foot also hit the temporary decking below him before his lanyard retracted him upwards.
Although the roadway was intact, the roadway had been blocked off from active traffic so that construction work could be performed.
Claimant does not explain what a "retractable" is or why it was required at this particular portion of the work site.
It is not clear from claimant's deposition testimony whether he was wearing both a lanyard and a retractable at this point, or only a retractable.
Mr. Stigall testified that he did not believe there was anything wrong with the equipment he was wearing, rather, he believed that the safety line should have been higher to allow his lanyard to properly deploy thereby preventing him from hitting the temporary decking below. Claimant also submits the deposition testimony of Matthew Fraher, a site safety manager employed by Tully (Exhibit 4). On the date of the accident, Tully had over 100 workers at the subject construction site. The site was designated a "critical work area" due to its location. Ironworkers and surveyors were traversing the iron beams at the same time because the State requested that the work be accelerated.
Mr. Fraher testified that on the date of the accident Mr. Stigall and his co-workers were performing repair and prep work on double floor beams and "stringers," which are steel beams running north and south located beneath the roadway. To perform that work, Mr. Stigall was required to walk out onto the beams and stringers. The fall protection set up for Mr. Stigall included sky grip stanchions and a safety cable. All workers wore their safety harness with an eight-foot lanyard or a fall limiter protector, also known as a "yo-yo", which is a harness that "pull[s] you back up" in the event of a fall (Exhibit 4, pp. 55-56, 72). The stanchions were made of either aluminum or steel, and were connected to the top flange of the beam upon which the workers walked. They were placed every 30 feet with the safety cable running through the "eyelid" of the stanchion (Exhibit 4, p. 55). The safety cable was approximately three feet high from where a worker would stand, or about waist height for a six-foot tall person. There was also a Safespan deck eight or nine feet below where the work was performed.
Mr. Fraher did not witness Mr. Stigall's fall, but he responded to the project site on the day that it occurred and created a seven-page incident report on behalf of Tully (Exhibit 5). The report notes that Mr. Fraher interviewed the surveyor, Christopher Stewart, who Mr. Stigall attempted to walk around before he fell. Mr. Stewart stated that at the time of the accident, Mr. Stigall was approximately four or five feet north of Mr. Stewart's location. At that time, he felt a tug on his fall limiter protector and looked back to see Mr. Stigall's lanyard hanging downward. He did not witness the actual fall. One worker, Joseph Saramago, stated that he saw Mr. Stigall's lanyard become "tangled up" with the surveyor's "yo-yo" (Exhibit 5, p. 3).
Mr. Fraher provided testimony regarding Mr. Stigall's safety equipment. He stated that "in theory" no part of Mr. Stigall's body should have hit the Safespan decking below him (Exhibit 4, p. 74). However, he stated there were numerous reasons why it could have happened "depending on the location where he was tied off to, how he was tied off to the sky grip, what apparatus he was using" (id.). He also stated that it depends on the type of lanyard used and the height of the person using the equipment. Mr. Fraher stated that if he knew that the type of lanyard used by Mr. Stigall could cause a worker to hit the Safespan decking, he "would take the worker off the location and redesign or get a different piece of equipment" (id. at 78). When asked about the appropriate level of the safety line and anchor points as they existed on the day Mr. Stigall was injured, Mr. Fraher testified that he could not determine whether the equipment was set at an appropriate level (id. at 78-79). He also could not definitively say that the area where Mr. Stigall was working was overcrowded on the day of his accident (id. at 83). When asked whether Mr. Stigall's lanyard was deployed when inspected after the accident, Mr. Fraher stated that he did not recall whether it was deployed (id. at 103).
LAW AND DISCUSSION
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court's function on a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247, 254 [1980]). The proponent of a motion for summary judgment must establish a prima facie 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]). Once the proponent of a motion for summary judgment has set forth such a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (id.; Winegrad New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion, here, defendant (Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept. 1983]). A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions (CPLR 3212 [b]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).
Labor Law § 240 (1)Labor Law § 240 (1), often called the "scaffold law", provides in pertinent part, as follows:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, 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 so employed.
The purpose of Labor Law § 240 (1) is to protect workers and to impose the responsibility of safety practices on those best situated to bear that responsibility (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]). The duty imposed therein is nondelegable, and an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work (id.). To successfully assert a cause of action under Labor Law § 240 (1), claimant must establish that he was injured during "the erection, demolition, repairing, altering or painting of a building or structure" (Enos v Werlatone, Inc., 68 AD3d 713, 714 [2d Dept. 2009]). Liability may be imposed under this statute "only where the '[claimant's] injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential' " (Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 97 [2015], quoting Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). Notably, Labor Law § 240 (1) does not impose liability for all perils "connected in some tangential way with the effects of gravity" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501). "Rather, liability is contingent upon the existence of a hazard contemplated in [Labor Law] section 240 (1) and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein" (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). Here, the parties do not dispute that Mr. Stigall was performing the type of work encompassed by Labor Law § 240 (1), or that defendant owned the premises where the accident occurred. Thus the Court must determine whether the hazard at issue here is a hazard contemplated by Labor Law § 240 (1) and whether his injuries are a direct consequence of defendant's failure to provide adequate protection from that hazard.
First, the Court finds that Mr. Stigall's fall from the exposed steel beam upon which he was working is a hazard contemplated by Labor Law § 240 (1) (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 501; see also Amato v State of New York, 241 AD2d 400, 401 [1st Dept. 1997], lv denied 91 NY2d 805 [1998]; DiMuro v Town of Babylon, 210 AD2d 373, 374 [2d Dept. 1994]). The Court rejects defendant's argument that Mr. Stigall's fall is not a hazard contemplated by Labor Law § 240 (1) because he merely tripped. Falling from an elevated surface is exactly the type of hazard contemplated by Labor Law § 240 (1) and the precise manner in which Mr. Stigall fell is immaterial to the question of whether the absence of proper fall protection caused his injuries (see Vergara v SS 133 West 21, LLC, 21 AD3d 279, 280 [1st Dept. 2005] [holding that the question of whether the plaintiff misstepped off a scaffold was immaterial as to whether adequate fall protection was provided]). However, claimant has not established that his injuries are a direct consequence of defendant's failure to provide adequate protection from that hazard.
Where a worker is provided with an elevation-related safety device, the question of whether the device provided proper protection within the meaning of Labor Law § 240 (1) is a question of fact (Beesimer v Albany Avenue/Route 9 Realty, Inc, 216 AD2d 853, 854 [3d Dept. 1995]). Mr. Stigall testified during his deposition that he did not believe there was anything wrong with the equipment he wore on the day of his accident (Exhibit 3, pp. 96-97). Rather, he believed that if the safety line was set higher, his lanyard would have had more room to deploy and his foot would not have hit the temporary decking below (id. at 97). Mr. Fraher, Tully's site safety manager, testified that if he knew that Mr. Stigall's lanyard would not prevent him from hitting the safety decking below then he would have redesigned that type of safety equipment (Exhibit 4, pp. 77-78). However, when asked whether the safety line was located at an appropriate level, Mr. Fraher stated that he could not say whether the safety line was at an appropriate level (id. at 78). Nor was he aware of any regulations dictating where the safety line should be (id.).
Claimants cite Kyle v City of New York, 268 AD2d 192 [1st Dept. 2000], lv denied 97 NY2d 608 [2002], in support of their motion, which involved injuries sustained by workers after the scaffold upon which they were working collapsed, causing them to fall approximately thirty feet before their safety harnesses deployed. In that case, the fact that the scaffold failed was uncontroverted, and the First Department held that the plaintiff's injuries were a direct consequence of the inadequate safety device--the collapsing scaffold. Here, there is no similar uncontroverted allegation regarding the sufficiency of Mr. Stigall's safety device. Given Mr. Stigall's own testimony that his lanyard was working properly, and Mr. Fraher's testimony regarding the appropriateness of the safety line, the Court finds that questions of fact remain as to the whether the safety line and lanyard provided appropriate fall protection for Mr. Stigall (see Garhartt v Niagara Mohawk Power Corp., 192 AD2d 1027, 1029 [3d Dept. 1993] ["The conflicting claims of the respective parties present a factual issue as to whether the device that was provided was suitable and appropriate for plaintiff's proper protection . . ."]; see also Lazo v New York State Thruway Auth., UID No. 2019-029-018 [Ct Cl, Mignano, J., Mar. 13, 2019]; Fiordilino v State of New York, UID No. 2016-045-018 [Ct Cl, Lopez-Summa, J., July 12, 2016]). Accordingly, claimants' motion for summary judgment on the Labor Law § 240 (1) cause of action is denied.
Labor Law § 241 (6)Labor Law § 241 (6) imposes a nondelegable duty of reasonable care upon owners and contractors "to provide reasonable and adequate protection and safety" for persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 [1998]). Thus, a property owner must comply with the provisions of the State Industrial Code, Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York (see Ortega v Puccia, 57 AD3d 54, 60 [2d Dept. 2006]). To state a claim under Labor Law § 241 (6), a claimant must allege that defendant violated a specific rule or regulation and that the claimant's injuries were proximately caused by the violation (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 504-505).
Here, claimants allege that defendant violated two provisions of the Industrial Code. First, claimants allege that defendant violated Industrial Code § 23-1.16 (b), which states:
Attachment required. Every approved safety belt or harness provided or furnished to an employee for his personal safety shall be used by such employee in the performance of his work whenever required by this Part (rule) and whenever so directed by his employer. At all times during use such approved safety belt or harness shall be properly attached either to a securely anchored tail line, directly to a securely anchored hanging lifeline or to a tail line attached to a securely anchored hanging lifeline. Such attachments shall be so arranged that if the user should fall such fall shall not exceed five feet [emphasis added].
Here, claimants allege that claimant fell "at least 10 feet" to the decking located below him and struck his foot (Claimants' Mem. of Law, p. 12). Thus, claimants argue that the Court should grant summary judgment because Mr. Stigall fell more than five feet, in contravention of Industrial Code § 23-1.16 (b). However, claimant does not set forth any explanation of how the alleged violation proximately caused his injuries (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d at 504-505). As argued by defendant, it is not clear that Mr. Stigall's injuries were caused by the inappropriate length of his safety harness. Mr. Stigall's own testimony indicates that his injuries were caused when he fell and struck portions of the beam he was standing on, injuries which the evidence suggests would have occurred even if he fell less than five feet. Therefore, the Court finds that claimants have failed to establish their entitlement to summary judgment on the violation of Industrial Code § 23-1.16 (b).
Lastly, claimants assert that defendant violated Industrial Code § 23-1.7 (e) (1), entitled "Tripping and other hazards" which states: "All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping." Here, claimants allege that defendant violated this provision of the Industrial Code because the surveyor's lanyard upon which Mr. Stigall tripped was a "condition[] which could cause tripping" (Industrial Code § 23-1.7 [e] [1]). However, this regulation does not apply where the object upon which the claimant trips is an "integral part of the work he was performing" (Harvey v Morse Diesel Intl., 299 AD2d 451, 453 [2d Dept. 2002] [citation omitted]). Claimants do not identify and the Court cannot find similar cases where a worker trips and falls over a safety device itself. However, several cases consider whether Industrial Code § 23-1.7 (e) (1) applies to trip and falls caused by devices protecting objects at a work site. In Johnson v 923 Fifth Ave. Condominium, 102 AD3d 592, 593 [1st Dept. 2013], the plaintiff tripped over a piece of plywood that had been purposefully laid over the sidewalk to protect it. The First Department held that Industrial Code § 23-1.7 (e) (1) was inapplicable because the plywood was an integral part of the work being performed. In Thomas v Goldman Sachs Headquarters, LLC, 109 AD3d 421, 422 [1st Dept. 2013], the First Department again found that Industrial Code § 23-1.7 (e) (1) did not apply where a worker tripped over a protective floor covering purposefully installed during a renovation project. Finally, in Gabler v State of New York, UID No. 2010-045-004 [Ct Cl, Lopez-Summa, J., June 30, 2010], the Court found that Industrial Code § 23-1.7 (e) (1) did not apply where a worker tripped over a mooring line that kept the barge upon which he was working safely tied to a dock. In consideration of the foregoing cases, the Court finds that the surveyor's lanyard was an integral part of the work being performed, as it ensured the safety of the workers traversing the iron frame from which Mr. Stigall fell. Accordingly, claimants' motion for summary judgment on a violation of Industrial Code § 23-1.7 (e) (1) is denied.
Based upon the foregoing, it is hereby
ORDERED that claimants' motion for summary judgment (M-93884) is denied. This matter will proceed to trial on March 10-12, 2020 at the Court of Claims in New York City. The parties are directed to appear for a pre-trial telephone conference on Tuesday, March 3, 2020 at 10 a.m. The Court will initiate the call.
September 19, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion, dated April 16, 2019; Affirmation in Support, affirmed by Adam S. Levien, Esq. on April 16, 2019, with Exhibits 1 through 8 annexed thereto; and Memorandum of Law, dated April 16, 2019. 2. Affirmation in Opposition, affirmed by Daniel Y. Sohnen, Esq. on June 17, 2019. 3. Reply Affirmation, affirmed by Adam S. Levien, Esq. on June 28, 2019.