Opinion
# 2013-038-536 Claim No. 120129 Motion No. M-83094
06-27-2013
JAMES TERRELL v. THE STATE OF NEW YORK
Synopsis
In support of his motion for summary judgment on his causes of action pursuant to Labor Law §§ 240 and 241 (6), claimant made a prima facie showing that a plank on a scaffold platform flipped and caused him to fall when a cleat that stabilized the plank became loose, but defendant raised a triable issue of fact whether the cleat came loose, and thus, whether claimant was not provided with proper protection from elevation-related hazards.
Case information
UID: 2013-038-536 Claimant(s): JAMES TERRELL Claimant short TERRELL name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote The caption has been amended sua sponte to reflect the (defendant name) : State of New York as the only proper defendant in this claim. Third-party claimant(s): Third-party defendant(s): Claim number(s): 120129 Motion number(s): M-83094 Cross-motion number(s): Judge: W. BROOKS DeBOW Claimant's MARTIN, HARDING & MAZZOTTI, LLP attorney: By: Craig A. Cushing, Esq. Defendant's LAW OFFICES OF THERESA J. PULEO attorney: By: Norah M. Murphy, Esq Third-party defendant's attorney: Signature date: June 27, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim alleges that claimant suffered injury to his left shoulder when he fell from a scaffold to the ground while working at a construction site on the piers of a bridge of Interstate 787 in the City of Albany, New York. Claimant moves for partial summary judgment on liability on his causes of action pursuant to Labor Law § 240 (1) and Labor Law § 241 (6). Defendant opposes the motion, arguing that triable issues of fact preclude a grant of summary judgment.
Defendant's argument that claimant is not entitled to summary judgment under Labor Law § 200 (see Defendant's Memorandum of Law, Point III) is superfluous, as claimant does not seek summary judgment on that cause of action.
The following facts are established by claimant and uncontroverted by defendant. Claimant was injured on March 25, 2010 when he fell from a scaffold while working at a project to refurbish and repair the concrete piers beneath Interstate 787. Defendant State of New York was the owner of the project site, and Reale Construction, which had a contract with the State for the project, was claimant's employer. On the day in question, claimant's supervisor, Darrell Alvord, assigned claimant to work on a specific pier, and to erect a scaffold to accomplish that work. Claimant's work consisted of locating, marking, and removing deteriorated sections of concrete from the structure.
Claimant and his co-worker assembled a scaffold frame, with six wooden planks atop it to provide an elevated work surface (see Cushing Affidavit, Exhibit I). The top of the scaffold planks were elevated between six and seven feet above the ground. The planks were secured to one another with two pieces of wood, referred to as cleats, that were nailed into the underside of the planks at either end of the scaffolding. As the scaffold was being erected, Alvord noticed that it lacked the vertical posts that were needed to secure the handrails to the scaffold. The necessary hardware was not on the job site, so Alvord dispatched claimant's co-worker to an off-site location to get the hardware. While she was gone on that errand, claimant climbed on and off the scaffold several times for the purpose of assembling his tools, adjusting the location of the scaffold, and doing preparatory tasks - actions that claimant asserts were taken upon Alvord's direction to take his equipment up on the scaffold and be ready to work immediately upon his co-worker's return with the handrail hardware. Claimant specifically denied that Alvord had told him not to go up on the scaffold until the handrails were installed (id. Exhibit D, p. 79; Exhibit E, p. 70). Claimant testified that he accessed the platform of the scaffold several times by climbing up and down the "ladder" that was built into the left side of the scaffold frame (see id. Exhibit E, pp. 45-47; Exhibit I).
Prior to the return of the co-worker with the handrail hardware, claimant was upon the scaffold platform when he fell to the ground. Claimant testified that he was standing atop the platform, and as he turned around one of the planks suddenly "flipped" and threw him over (id. Exhibit D, pp. 81-86; Exhibit E, p. 64). He testified that he did not observe a plank moving before his fall and he did not recall a plank having moved while he was falling (see id. Exhibit E, p. 65), but after he fell, he saw one of the cleats dangling from the bottom of one of the planks (id. Exhibit D, pp. 94-95).
Claimant testified that he accessed the platform of the scaffold several times by climbing up and down the rungs, or "ladder," that was built into the left side of the scaffold frame (see id. Exhibit E, pp. 45-47; Exhibit I). Gary Craig, an inspector for the New York State Department of Transportation who was working at the job site on the day of claimant's fall, testified at his EBT that although workers climb the bars on the sides of scaffolds, they are not supposed to do so, and that a ladder is necessary to climb on the scaffold (see id. Exhibit F, pp. 84-85). Craig also testified that scaffolds in excess of six feet required guard rails and/or safety harnesses (id. pp. 26-27), and that the scaffold from which claimant fell was "a little over six feet" (id. p. 61).
Darrell Alvord testified at his EBT that he saw claimant atop the scaffold and told him to stay there while he got a ladder for claimant to use to get down (id. Exhibit G, pp. 56, 93). Alvord got a ladder from a nearby trailer, turned around, and from a location twenty to thirty feet from the scaffold, he saw claimant lying on the ground (id. p. 57). He did not see claimant fall, but it was his "understanding" that claimant fell while trying to climb down from the scaffold using the "X" cross brace on the front of the scaffolding (id. pp. 57-58). Alvord's belief that claimant fell while he was climbing down was based upon Alvord's thought that "there's only one way down . . . to climb down the X brace on the scaffold" (id. pp. 57-58). At his EBT, Alvord had no recollection of having been told by anyone that claimant was climbing down the X brace when he fell, nor did he recall that the scaffold from which claimant fell had a "ladder" down its side (id. pp. 56-59). Alvord had no recollection of having told claimant that he should not go up onto the scaffold (id. Exhibit G, pp. 46, 51, 53, 108-109). Alvord testified that after claimant fell, the cleat was not dangling from the planks, but was securely in its place under the planks (id. pp. 60-61, 73).
Labor Law § 240 (1) affords workers protection from elevation-related injuries by imposing on the owner of a worksite absolute liability for injuries that are sustained in a manner contemplated by the statute (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 559-560 [1993]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 499-500 [1993]). A claimant/plaintiff seeking the protection of Labor Law § 240 (1) must establish three elements: (1) that he or she was engaged in an activity enumerated by the statute (see e.g. Joblon v Solow, 91 NY2d 457 [1998]); (2) that the injury was sustained due to an elevation-related hazard (see Ross v Curtis Palmer Hydro-Elec. Co., at 501; Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]); and (3) that a required safety device was absent or defective and the absence or defect was a proximate cause of claimant/plaintiff's injury (see Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 501).
A party moving for summary judgment bears the initial burden of establishing the right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). On a motion for summary judgment, the court's function is issue finding, not issue determination (see Matter of Suffolk County Department of Social Services v James M., 83 NY2d 178, 182 [1994]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). In reviewing the papers submitted on a motion for summary judgment, the Court must examine the proof in a light most favorable to the party opposing the motion (see Plastokit [Prod. 1986] Ltd. v American Bio MedicaCorp., 105 AD3d 1115 [3d Dept 2013]; Barra v Norfolk S. Ry. Co., 75 AD3d 821, 822-823 [3d Dept 2010]). Because the drastic remedy of summary judgment deprives a litigant of his or her day in court, it "should only be employed when there is no doubt as to the absence of triable issues" (Van Noy v Corinth Central School Dist., 111 AD2d 592, 593 [3d Dept 1985] citing Andre v Pomeroy, 35 NY2d 361, 364 [1974]).
On this motion, claimant has established and defendant does not dispute that defendant was the owner of the worksite (see Cushing Affidavit, ¶ 20; Exhibit H), that claimant was engaged in a covered activity (id. ¶ 21), and that claimant's injury was due to an elevation-related hazard. Claimant has met his burden in support of his motion by offering proof of a defect in the scaffold inasmuch as the planks did not provide a stable platform, and that said defect was the proximate cause of his fall because a plank flipped or shifted causing him to fall from the scaffold.
Claimant argues that the "shifting of the planks and the failure of the cleat, which was the proximnate cause of claimant's injuries, establishes liability" under Labor Law § 240 (1) (Cushing Affidavit, ¶ 29). Although claimant has submitted proof that the scaffold from which he fell lacked a handrail at the time of his accident, and also submitted proof that scaffolds higher than 6 feet require a handrail and that the scaffold from which claimant fell exceeded this height requirement (see id. Exhibit F, at 27; 61), and claimant argues that the lack of handrails defeats any sole proximate cause defense (see id. ¶ 34), claimant makes no argument that the lack of a handrail or safety harness was a violation of Labor Law § 240 (1).
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In opposition to this proof, defendant argues that claimant has not established that there was a violation of Labor Law § 240 (1) (see Murphy Affidavit, ¶¶ 4-7; Defendant's Memorandum of Law, Point I), and that even if there were statutory violations, claimant was a recalcitrant worker and his own actions were the sole proximate cause of his injuries (see Murphy Affidavit, ¶ 8; Defendant's Memorandum of Law, Point II). Defendant asserts that, at the very least, there are triable questions of fact on these issues. The Court agrees that defendant has raised a triable issue of fact as to whether the scaffold broke, and thus, summary judgment on claimant's cause of action pursuant to Labor Law § 240 (1) must be denied.
As noted above, the uncontroverted evidence submitted in support of claimant's motion demonstrates that planks were laid across the top of the scaffolding to create a platform upon which to stand, and a cleat was nailed into the underside of the planks on either end of the scaffolding to secure the planks. Claimant testified, and he argues in support of the motion, that one of the planks "flipped" and that the shifting of the planks and the insecure plank caused his fall and injuries (see Cushing Affidavit, ¶ 29; Exhibit D, at 83; Exhibit E, at 64; see also Zemeck Affidavit). Claimant further asserts that after he fell, he noticed that one of the cleats had come loose from the underside of the planks and was "dangling" (Cushing Affidavit, Exhibit D, 94-95). Defendant, however, points to evidence that after claimant's fall, the cleat remained attached to the bottom of the planks (id. Exhibit G, 60-61). Further, claimant's testimony that he did not observe the planks moving before his fall and did not recall seeing a plank moving during his fall is inconsistent with his assertion that the plank flipped or shifted. Thus, although claimant has made his prima facie showing that the scaffold failed to provide proper protection as required by Labor Law § 240 (1) (see Davis v Pizzagalli Constr. Co., 186 AD2d 960, 961 [3d Dept 1992]), there is a triable issue of fact on that issue. Thus, claimant's motion for summary judgment on his cause of action pursuant to Labor Law § 240 (1) must be denied.
The same triable issue of material fact requires denial of claimant's motion with respect to his cause of action pursuant to Labor Law § 241 (6). In support of this cause of action, claimant asserts that defendant violated 12 NYCRR § 23-5.1 (e) (1), which regulates "Scaffold Planking," and which requires that "[s]caffold planks shall be laid tight and inclined planking shall be securely fastened in place." Claimant argues that "[t]he planks provided to claimant did not fit securely or snug on the scaffold platform" and that the "cleat did not stay in place and stabilize the planks" (Claimant's Memorandum of Law, Point II; see also Zemeck Affidavit, ¶ 20). Inasmuch as the record presented on claimant's motion contains no specific proof that the planks were not laid tight, and claimant's own EBT testimony about whether a plank flipped or moved was inconsistent, and claimant asserts that the plank flipped because the cleat became unattached, there are triable issues whether the plank was loose and/or whether the cleat became unattached, and claimant is not entitled to summary judgment on his Labor Law § 241 (6) cause of action.
Given that claimant's motion for summary judgment will be denied as set forth above, and in the absence of a cross motion for summary judgment dismissing the claim, defendant's arguments that claimant's own conduct was the sole proximate cause of his accident and that he is not entitled to the protection of Labor Law § 240 (1) because he was a recalcitrant worker need not be addressed. Accordingly, it is
ORDERED, that claimant's motion number M-83094 is DENIED.
June 27, 2013
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim Number 120129, filed July 21, 2011;
(2) Verified Answer, filed August 15, 2011;
(3) Notice of Motion, dated March 6, 2013;
(4) Attorney Affidavit in Support of Craig A. Cushing, Esq., sworn to March 6, 2013, with Exhibits A-I;
(5) Expert Affidavit in Support of Edward J. Zemeck, P.E., sworn to March 6, with Exhibit A;
(6) Memorandum of Law in Support of Claimant's Motion for Summary Judgment, dated March 6, 2013;
(7) Affidavit in Opposition of Norah M. Murphy, Esq., sworn to April 10, 2013, with Exhibit 1;
(8) Defendant's Memorandum of Law, dated April 10, 2013;
(9) Attorney Affidavit in Reply of Craig A. Cushing, Esq., sworn to April 15, 2013.