Opinion
# 2020-044-004 Claim No. 130287
12-10-2020
NORMAN WEAVER AND PATRICIA WEAVER v. THE STATE OF NEW YORK
RUTBERG BRESLOW PERSONAL INJURY LAW BY: Martin P. Rutberg, Esq., of counsel HON. LETITIA JAMES, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General
Synopsis
After liability trial in claim for injuries incurred when claimant fell while working on a loading dock which did not have any fall prevention device, the Court found that the dock constituted a dangerous condition, and that defendant was 95% liable for claimant's injuries.
Case information
| UID: | 2020-044-004 |
| Claimant(s): | NORMAN WEAVER AND PATRICIA WEAVER |
| Claimant short name: | WEAVER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130287 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | RUTBERG BRESLOW PERSONAL INJURY LAW BY: Martin P. Rutberg, Esq., of counsel |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 10, 2020 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this claim to recover for injuries incurred when he fell approximately four feet onto the pavement from an open loading dock on March 13, 2017 while working on the campus at the State University of New York at Binghamton (BU). Defendant State of New York (defendant) answered and asserted several affirmative defenses. Trial of the matter was bifurcated and held in the Binghamton District on November 17, 2020, and the parties thereafter submitted posttrial memorandums of law. This decision addresses only the issue of liability.
Claimant Patricia Weaver's claim is derivative in nature, and unless otherwise indicated or required by context, the term "claimant" shall refer solely to claimant Norman Weaver.
At the time of his fall, claimant was working for Sodexo Food Services, a food service company contractor who provides dining services to BU. A security camera video of the accident showed that there were no trucks present at the loading dock at the time. Claimant was stacking pallets on the open loading dock as part of his job duties at the Appalachian Dining Center (the Dining Center) on the BU campus. As he lifted a pallet to place it on the pile, the slat he was holding on to broke free and caused him to lose his balance. Consequently, claimant fell backward off the loading dock and suffered, among other things, a traumatic brain injury and a right occipital fracture. There is no dispute that the height of the dock was at least 48 inches above ground level and that the portion of the dock where claimant fell did not have any railing to prevent a person from falling off the edge.
Claimant's Exhibit 1.
At trial, claimant testified that he had no independent recollection of the incident. He was placing one pallet on top of another on the loading dock at the Dining Center, and he eventually woke up in the hospital. He acknowledged that he was employed by Sodexo as a receiver, and his job including unloading pallets of shipped goods, cleaning various kitchen items on the loading dock, and taking out garbage.
Emma Judd, the lead baker at the Dining Center and claimant's supervisor, also testified. She said that she had worked with claimant for 20 to 25 years. His duties included unpacking pallets of supplies, taking out garbage by means of the loading dock 10 to 15 times a day, spraying ovens, refrigerators, racks and dish bins on the dock, and shoveling snow from the dock. She said there was never a railing at the dock prior to claimant's accident, but that one was placed there afterward. She acknowledged that she, claimant, and the other Dining Center workers were all Sodexo employees. She commented that she had never noticed that claimant had any balance issues prior to his accident.
Claimant's expert, John P. Coniglio, a practicing safety professional with several advanced degrees including a Ph.D. in Safety Engineering and an MS degree in Occupational Safety and Health Management, also testified. Coniglio reviewed a number of pictures taken at BU and at other University of New York campuses, all of which showed railings or some sort of protective device at the entrance to loading docks, including several which were less than 48 inches from the ground. He opined that the loading dock where claimant fell was more than simply a loading dock, but was also a work area where claimant routinely sprayed down kitchen items, such as stove racks and dirty dish bins.
Coniglio opined that the loading dock in question was a dangerous condition for three reasons. First, he said it did not comply with good practices for workplace safety. Second, he opined with a reasonable degree of engineering certainty that the dock did not comply with Occupational Safety and Health Administration (OSHA) regulation 29 CFR 1910.28 (b) (formerly 29 CFR 1910.23 [c]), because it was 48 or more inches from the ground, without a railing. He stated that while there is a statutory exemption for loading docks, that exemption would not apply when the dock was not actually being used for loading or unloading. Coniglio noted that he is an authorized OSHA outreach instructor. He stated that the standard of care is to have some protective barrier when loading is not taking place, even if the elevation is less than 48 inches. Finally, Coniglio said that the dock was not in compliance with the New York State Building Code, which is based upon the International Building Code. On cross-examination, there was much discussion about whether the loading dock was exempt from the various requirements that a railing be present.
Claimant rested his case after these witnesses.
Defendant's sole witness was its expert, Thomas Pienciak, a Forensic Architect licensed and registered in New York. Pienciak opined that the loading dock was in compliance with the New York State Building Code applicable at the time of construction, and which still applies. He said that he reviewed all applicable codes and regulations and that the loading dock was in compliance with all of them. He stated that the codes and regulations exempted loading docks, and that those codes and regulations did not define what activities were allowed on loading docks. In other words, he said, Coniglio was wrong regarding his assertion that a railing was required at this location.
On cross-examination, Pienciak acknowledged that he is not an expert on OSHA regulations. He further stated that in his opinion, the work being performed on the loading dock, such as spray-cleaning kitchen items, was inappropriate at that location. Pienciak did agree that a safety rail could have been installed at the loading dock, and that a rail would have made the situation considerably more safe.
Defendant rested its case at the close of Pienciak's testimony. The Court reserved decision.
Claimant argues that defendant is liable as a matter of common-law negligence, and also liable based upon its violations of OSHA regulation 29 CFR 1910.28 (b), American National Standards Institute (ANSI/ASSE) A1264.1-2007 § 5.1, the New York State Building Code (the Building Code) § 1015.2 and New York State Property Maintenance Code (Property Maintenance Code) § 307.1.
Conversely, defendant argues that it is not liable because loading docks are specifically exempted from the statutory and regulatory requirements, citing the pertinent standards set forth in ANSI, the New York State Building Code and the New York State Property Maintenance Code. Defendant further argues that OSHA regulations are only applicable to claimant's employer Sodexo, and thus do not impose a duty on BU as the property owner.
Respectively, ANSI A1264.1-2007-Section 1.1.1 (Defendant's Exhibit I), Building Code of New York 1003.2.12-2002 (Defendant's Exhibit K), and NYS Property Maintenance Code §306.1-2007 (Defendant's Exhibit M).
It is clear that this loading dock area is explicitly exempt from the ANSI, NYS Building Code and NYS Property Maintenance Code requirements that all platforms over 48 inches be equipped with a railing. However, the fact that a property owner is in "compliance with the applicable statutes and regulations is not dispositive of the question whether it satisfied its duties under the common law" (Kellman v 45 Tiemann Assoc., 87 NY2d 871, 872 [1995]).
It does appear that defendant's premises were in violation of the OSHA regulation 29 CFR 1910.28 (b), as that regulation only exempts loading docks from the requirement for a fall protection system when the use of such a system is not feasible, and when the work operation for which the fall protection is infeasible is in process (29 CFR 1910.28 [b] [1] [iii] [A]). In this instance, it is undisputed that a fall protection system was immediately installed after claimant's fall, so it is readily apparent that use of such a system was not infeasible. Moreover, the work claimant was doing on the platform could certainly (and should certainly) have been performed with a fall protection system present. While this is clearly some evidence of defendant's negligence, the fact that the regulation was violated is not relevant to the Court's decision, as set forth infra. --------
The State, as a landowner, has a duty of reasonable care in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233, 241 [1976]; see also Clairmont v State of New York, 277 AD2d 767 [3d Dept 2000], lv denied 96 NY2d 704 [2001]). To prevail on this claim, claimant must establish by a preponderance of the credible evidence that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]). "[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question [for the finder of fact]" (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997] [internal quotation marks and citation omitted]). Moreover, "[t]he fact that a dangerous condition is open and obvious does not relieve a landowner of all duty to maintain his or her premises in a reasonably safe condition, and [claimant's] familiarity with the allegedly defective condition may be considered with respect to [his] comparative negligence" (Barley v Robert J. Wilkins, Inc., 122 AD3d 1116, 1118 [3d Dept. 2014]).
It is undisputed that defendant both created and had actual notice of the condition in question, that the condition was the proximate cause of the accident, and that claimant sustained damages. Defendant attempts to argue that it did not breach its duty of care because it was in compliance with all applicable regulations. However, as previously noted, compliance with various applicable regulations does not absolve the landowner's obligation to maintain its premises in a reasonably safe condition.
The "loading dock" was a large area, regularly traversed by both students, workers and defendant's personnel. It was an open concrete area, four feet above the pavement, with much of the dock unprotected by any railing. This would be dangerous even if the dock had only been used for loading and unloading. In light of the fact that it was routinely used for many other tasks, without any sort of fall protection system present, it was clearly and unquestionably a dangerous condition. The Court finds that claimant has established an adequate basis for defendant's liability by a preponderance of the evidence.
Claimant was not engaging in risky behavior while working. The fact that the pallet broke while he was stacking it on other pallets, causing him to lose his balance, was completely unforeseeable. However, claimant was clearly aware that the dock did not have a railing. He must consequently be charged with some small responsibility for failing to position himself so that his back was not to the edge of the dock. Based upon the foregoing and upon due consideration, the Court hereby apportions liability to defendant in the amount of 95% and to claimant in the amount of 5%.
The Clerk of the Court is directed to enter interlocutory judgment on the issue of liability in the proportions set forth above. A trial on the issue of damages will be scheduled as soon as practicable.
Any and all motions on which the Court may have previously reserved or which were not previously determined are hereby denied. Let interlocutory judgment be entered accordingly.
December 10, 2020
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims