Opinion
# 2017-053-502 Claim No. 121569 Motion No. M-88989
01-12-2017
DAVID W. WEITZEL v. THE STATE OF NEW YORK, THE NEW YORK STATE TRANSPORTATION AUTHORITY AND CANAL CORPORATION, and THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION
LIPSITZ GREEN SCIME CAMBRIA, LLP BY: John A. Collins, Esq. KENNEY SHELTON LIPTAK NOWAK, LLP BY: Richard C. Brister, Esq.
Synopsis
Claimant's motion for partial summary judgment as to Labor Law § 240 (i) is denied as defendants submitted sufficient proof to create questions of fact as to whether claimant was a recalcitrant worker and wether his actions were the sole proximate cause of his injuries.
Case information
| UID: | 2017-053-502 |
| Claimant(s): | DAVID W. WEITZEL |
| Claimant short name: | WEITZEL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK, THE NEW YORK STATE TRANSPORTATION AUTHORITY AND CANAL CORPORATION, and THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121569 |
| Motion number(s): | M-88989 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | LIPSITZ GREEN SCIME CAMBRIA, LLP BY: John A. Collins, Esq. |
| Defendant's attorney: | KENNEY SHELTON LIPTAK NOWAK, LLP BY: Richard C. Brister, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | January 12, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This action arises out of an incident that occurred on July 10, 2012, when claimant David W. Weitzel was injured from a fall while sandblasting paint from the underside of a highway overpass on New York State Route 179 over the New York State Thruway in the Town of Hamburg. Claimant was employed at the time by PCI International, Inc. (PCI), who was involved in a bridge rehabilitation project with the New York State Department of Transportation (DOT) and New York State Thruway Authority to remove old paint and rust and repaint the bridge structure under the Route 179 overpass. Claimant brings this motion seeking partial summary judgment as to liability with respect to Labor Law § 240 (1). The defendants oppose this motion and contend that claimant was a recalcitrant worker and that his failure to wear safety equipment was the sole proximate cause of his injuries.
FACTS
On the evening of the incident, the DOT coordinated with PCI to erect a tarped containment area to perform the work under the Route 179 overpass utilizing a "V-deck truck", which is described as having two wings which open up creating the "V" shape and allow the work crew to work either from the V-deck platform or wing or from aluminum planks or picks that were placed between the V-deck wing and the bridge pier. Aristidis Bouris, President of PCI, set forth in his affidavit that the distance between the edge of the wing and the bridge pier over which planks were placed was about 7 to 9 feet. On the wing that was opened adjacent to the bridge pier, aluminum "picks" or planks were placed from the V-deck wing to the bridge pier and tied off to cross braces on the bridge. Claimant was involved in installing the pick on which he worked, as well as others installed that day. The claimant and his co-workers were provided with safety equipment that includes a blasting hood and visors, gloves and a five-point safety harness with two six-foot lanyards. Defendants contend that guardrails could not be installed on the picks as they impeded the ability of the work crew to move about, blast, and tie-off the blast hose. The defendants contend that the workers performing the blasting were required to attach their safety lanyard to either a safety cable running along the edge of the wing or in the alternative, to any fixed point on the iron bridge structure. Defendants contend that there were several places for the workers to attach their safety harness and that the lanyards on the safety harness would easily allow for several feet of movement along the planks to perform the blasting work.
Affidavit of Aristidis Bouris at ¶ 6 and 7.
Affidavit of Aristidis Bouris at ¶¶ 8-9; Exhibit G, Bouris EBT at pp. 53-54.
Affidavit of Aristidis Bouris at ¶¶ 8 and 9; Defendant's Exhibit F, Affidavit of Jeff Snow at ¶¶ 9-12 and Defendant's Exhibit K, Affidavit of Mikes Varvakis at ¶¶ 5-9.
Affidavit of Aristidis Bouris at ¶¶ 21 and 22.
Claimant testified that he and his co-workers utilized four to six aluminum planks or picks as scaffolds from the V-deck wing to the bridge pier about six feet apart. Each aluminum plank or scaffold was approximately 1 ½ to 2 ½ feet wide and 15 feet long. When placed into position and tied-off, the scaffolds were estimated to be between 10 and 15 feet above the ground. Claimant testified that the outside edge of the V-deck wing adjacent to the bridge structure was about 10 to 12 feet from the bridge pier. He testified that in order to be secure, the scaffolds should have been placed so that they extended two feet onto the bridge pier but that he could only extend the scaffold eight inches onto the pier because of the containment tarps that were already in place. Claimant's co-worker, Laster Keith Fowler, who was working next to him testified at his deposition that only eight inches of the scaffold extended onto the bridge pier, testifying that photo Exhibit CC depicts the tarp that obstructed the bridge pier. After placing the scaffolds, claimant and his co-workers tied them off with rope to both the pier and the V-deck wing.
Claimant's Exhibit H, Weitzel EBT at p. 216, 223; Exhibit J, Fowler EBT at p. 30; and Exhibit I, Bouris EBT at p. 43.
Claimant's Exhibit F, Weitzel EBT at p. 96; Exhibit J, Fowler EBT at p. 51; and Exhibit I, Bouris EBT at pp. 46-47.
Claimant's Exhibit F, Weitzel EBT at p. 100.
Claimant's Exhibit E, Weitzel EBT at pp. 58-62, 66 and Exhibit F, Weitzel EBT at pp. 86-87.
Claimant's Exhibit J, Fowler EBT at pp. 30-31, 66-70.
Claimant's Exhibit J, Fowler EBT at pp. 31-32, 68.
Prior to beginning their blasting operation, claimant and his co-workers entered the tarped containment area wearing their protective equipment. Once the workers were inside, the containment area was sealed, the grit compressor activated and the blasting operation began to remove the old paint and rust on the bridge surface. The work crew inside the containment area could only see three to four feet in front of them due to the dust generated by the blasting operation. Claimant testified that he walked the entire length of the scaffold from the V-deck wing to the bridge pier and back again to perform his blasting work. Claimant was wearing his safety harness when he entered the containment area, but then removed it. Claimant testified that he did not use his body harness and lanyards during the blasting because there was nowhere to tie off. Claimant's testimony was confirmed by Mr. Fowler, who testified that he and other PCI employees routinely removed their harnesses when they could not tie-off and that PCI's foreman, Jeff Snow, was aware that there was nowhere to tie off on the date of the incident. In addition, Mr. Fowler testified that Neil Wolfe, who was DOT's on-site inspector was aware that the work crew was working inside the containment area without being tied-off. Mr. Bouris testified that the workers could connect their lanyards to four cables that were attached to the V-deck floor approximately 6 to 12 inches from the outside edges of the V-deck wings and on the main platform. In addition, he testified that workers could also tie off to the cross-bracing located on the bridge pier. Mr. Snow's affidavit was consistent with Mr. Bouris' testimony as regards the ability to tie-off when performing blasting operations. Conflicting testimony was provided by Claimant, Mr. Fowler and another co-worker, Robert Clive, who all testified that there was no tie-off cable mounted near the outside edge of the V-deck wing and that the closest cable on the main platform was approximately 10 feet from the outside edge of the wing.
Claimant's Exhibit J, Fowler EBT at p. 20.
Defendants' Exhibit G, Bouris EBT at p. 134; Claimant's Exhibit F, Weitzel EBT at p. 107; and Exhibit K, Clive EBT at pp. 15, 58.
Claimant's Exhibit H, Weitzel EBT at pp. 215-218.
Claimant's Exhibit F, Weitzel EBT at pp. 98-99, 101-106 and Exhibit H, Weitzel EBT at pp. 218, 223.
Claimant's Exhibit J, Fowler EBT at pp. 20-24, 60.
Claimant's Exhibit J, Fowler EBT at pp. 70-71.
Defendant's Exhibit G, Bouris EBT at pp. 44-46, 54-58, 122-123.
Defendant's Exhibit F, Snow Affidavit at ¶¶ 13, 24 and 25.
Claimant's Exhibit H, Weitzel EBT at pp. 206-207; Exhibit J, Fowler EBT at pp. 73; and Exhibit K, Clive EBT at 62-63, 66 and 78.
Mr. Bouris testified that the scaffolds upon which work was performed did not have safety railing and that the safety lines on the V-deck platform "takes the place of the guardrail." In his affidavit, Mr. Bouris stated that safety harnesses were "especially important" because guardrails on the scaffolding were not feasible. Mr. Bouris testified that the V-deck platform contains steel cable or safety lines that are placed every four to six feet and are attached to the floor of the truck lengthwise to attach to the safety harness. Mr. Snow, the PCI foreman, set forth in his affidavit that guardrails on the scaffolds were not feasible and would be dangerous because "they impede the ability to move about, blast, and tie-off the blast hose, which is under tremendous pressure." Claimant testified in his deposition that he wore the safety harness and lanyard during the set-up phase of his work but not when blasting from the scaffold because he alleged that there was nowhere to tie-off . His co-worker, Mr. Fowler, similarly testified that he did not wear his safety harness while blasting because there was nowhere to tie-off.
Defendant's Exhibit G, Bouris EBT at pp. 44-45, 48.
Bouris Affidavit at ¶ 8.
Defendant's Exhibit G, Bouris EBT at pp. 45-47.
Defendant's Exhibit F, Snow Affidavit at ¶ 8.
Claimant's Exhibit F, Weitzel EBT at pp. 98-99, 101-106; Exhibit H, Weitzel EBT at p. 223.
Claimant's Exhibit J, Fowler EBT at pp. 19-20; 23-24.
Claimant testified that he was working on the scaffold about three feet from the bridge pier when he was caused to fall when the scaffold slipped off the bridge pier. He testified that he could feel the scaffold sliding down the concrete wall of the bridge and believed the scaffold collapsed because a truck had hit their V-deck truck. He also testified that he had no idea what specifically happened that made him fall. Mr. Fowler testified that he observed that the scaffold from which claimant fell had shifted but remained secured to the bridge pier and the V-deck wing. Mr. Clive testified that he was working from the V-deck platform when the fall occurred and he observed afterward that the subject scaffold had fallen off the pier but was still tied to it with the other end attached to the V-deck wing. Conflicting testimony was provided by Mr. Bouris, who testified that when he entered the containment area following the incident, he observed that the scaffold had not moved and was still securely tied at both ends. He also testified that had claimant been wearing his safety harness when he fell from the scaffold, he would not have fallen to the ground and injured himself but would only be hanging in the air above it.
Claimant's Exhibit H, Weitzel EBT at pp. 218-221.
Claimant's Exhibit J, Fowler EBT at pp. 34, 50, 66-67.
Claimant's Exhibit K, Clive EBT at p. 23.
Defendants' Exhibit G, Bouris EBT at pp. 106-107, 110-112, 136-137.
LAW
Preliminarily, claimant's motion papers include the expert affidavit of Peter A. Tasca, who opines as to the meaning and applicability of Labor Law § 240 (1) and the Industrial Code sections applicable to it, concluding that defendant violated the statutory requirements regarding the placement, operation and guarding of scaffolding. In opposition to the motion, defendants have included the expert affidavit of Angela DiDomenico, Ph.D., who opines that there is no credible evidence to support violations of any of the New York State Industrial Codes alleged by plaintiff, referencing also Labor Law § 240 (1) and § 241 (6). Each party has objected to the Court's consideration of the other's expert affidavit. The Court agrees with the parties to the extent that both expert affidavits offer only an opinion on the law and on matters involving a question of law, i.e., the applicability of Labor Law § 240 (1) and the relevant Industrial Code regulations. It has been held that "[e]xpert opinion as to a legal conclusion is impermissible" (Penda v Duvall, 141 AD3d 1156, 1157 [4th Dept 2016]; Colon v Rent-A-Center, 276 AD2d 58, 61[1st Dept 2000]). As a result, for purposes of this summary judgment motion only, even if the Court was to determine that either or both are qualified as experts, I find that to the extent that Mr. Tasca and Dr. DiDomenico offer opinions as to the applicability of Labor Law § 240 (1) and the Industrial Code regulations, the opinions expressed do not have any evidentiary value and are thereby without probative value and will not be considered.
Summary judgment is a drastic remedy and will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v. Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562.) Mere conclusions, unsubstantiated allegations or expressions of hope are insufficient to defeat a summary judgment motion. (Zuckerman v City of New York, supra at 562).
Claimant moves for partial summary judgment on his cause of action alleging a violation of Labor Law § 240 (1), which imposes a non-delegable duty upon owners, lessees, contractors and their agents to provide safety devices that will provide proper protection to workers. Where workers are engaged at an elevated height and scaffolding is required, an owner has a non-delegable statutory duty to ensure that the scaffold and other safety devices are "constructed, placed and operated as to give proper protection." The claimant has met his prima facie burden to establish that he was working at an elevation and as such, was performing work covered by this statute.
In order to establish liability pursuant to Labor Law § 240 (1), it has been held that the claimant must demonstrate that there was a violation of the statute and that violation was a proximate cause of his injuries (Blake v Neighborhood Hous. Servs. of N.Y. City, Inc., 1 NY3d 280 [2003]). In such instances, the claimant's own negligence does not furnish a defense (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]). However, where a claimant's own actions are the sole proximate cause of the accident, there can be no liability. In applying the "recalcitrant worker" defense, the Court of Appeals has held that the controlling question is not whether the claimant was "recalcitrant", i.e., failed to use available safety devices that he was instructed to use, but whether a jury could find that claimant's conduct, rather than any violation of Labor Law § 240 (1) was the sole proximate cause of the accident (Cahill, supra at 39-40).
The claimant contends that he is entitled to partial summary judgment as three statutory violations occurred that would each constitute a proximate cause of his injuries, namely, that (1) the scaffold moved and/or partially collapsed; (2) the scaffold provided did not have safety railings; and (3) the work site did not have adequate attachment points for claimant to secure his safety lanyard.
With respect to the first alleged statutory violation, the proof presented demonstrates that a triable issue of fact exists as to whether the scaffold shifted, collapsed or remained in position prior to claimant's fall. The claimant testified that the scaffold upon which he was working shifted and partially dropped off the bridge pier prior to his fall. His co-worker, Mr. Fowler testified that he viewed the scaffold following the incident and that it shifted but did not state that it partially dropped off the bridge pier. Claimant's employer, Mr. Bouris, testified that he examined the scaffold following the incident and that it had not shifted and was still anchored at both ends. As such, the conflicting deposition testimony raises a question of credibility to be resolved at trial and a question of fact that precludes granting partial summary judgment on this ground (Navetta v Onondaga Galleries LLC, 106 AD3d 1468, 1469 [4th Dept 2013]).
Similarly, with respect to the third alleged statutory violation, the proof presented creates an issue of fact as to whether the work site did or did not have adequate attachment points to secure a safety lanyard. Claimant alleges that he did not use his safety harness and lanyards during the blasting because there was nowhere to tie off. This was confirmed by Mr. Fowler, who also testified that he and other PCI employees routinely removed their harnesses when they could not tie-off and that the foreman, Mr. Snow and DOT's on-site inspector were both aware that the workers were unable and/or otherwise not using their safety harnesses while working within the containment area. Conflicting deposition testimony and affidavits are offered by Mr. Bouris and Mr. Snow, who allege that claimant could have tied off to the cable on the V-deck floor or to the cross-bracing on the bridge pier or to the beam clamp. As previously stated, the conflicting deposition testimony and statements in affidavits create a credibility issue and thereby a question of fact that would preclude partial summary judgment on liability.
The remaining ground asserted by claimant is based on the uncontroverted fact that the scaffold provided upon which he performed his work did not have any safety railings. Claimant contends that this is a clear violation of Labor Law § 240 (1), citing to Industrial Code Sections 23-5.1 (j) (1) and 23-5.3 (c), which provide that the open sides of all scaffolds shall be provided with safety railings, including metal scaffolds. The defendant contends that safety railings were not feasible within the containment area and perhaps dangerous as it would "impede the ability [of the claimant] to move about, blast, tie-off the blast hose, which is under tremendous pressure." It is for this reason, assert the defendants that claimant and his co-workers were provided with a safety harness and lanyard with the ability to tie-off on the V-deck platform, V-deck wing edge or cross-bracing on the bridge pier.
Bouris Affidavit at ¶ 8. --------
In support of his position, claimant cites to the Court of Appeals decision in Bland v Manocherian, 66 NY2d 461 (1985), and two appellate court decisions, Cartella v Strong Museum, 135 AD2d 1089 (4th Dept 1987) and Kalofonos v State, 104 AD2d 75 (2d Dept 1984), appeals withdrawn, 66 NY2d 613 (1985). In Bland, the Court of Appeals dealt with two appeals after trials that involved construction site accidents involving workmen injured as a result of alleged violations of Labor Law § 240. The Bland plaintiff was injured when the ladder upon which he was standing suddenly collapsed beneath him. In the companion appeal of Wright, the claimant was injured while working on a construction project when he fell from a "carpenter's bracket scaffold" which had in place only one, of two, 12-inch-wide planks for use as a standing platform, and neither a guardrail nor other protective device had been installed to prevent such a fall. In the opinion by Judge Matthew J. Jasen, the Court of Appeals held that:
In Wright v. State of New York, both courts below found that the absence of guardrails or other protective devices resulted in a denial of proper safety protection to claimant while he was working on the scaffold and, in turn, that this absence was a proximate cause of claimant's fall to the ground below. . . . Under the circumstances here, the courts below agreed, as a question of fact, that the scaffolding should have been equipped with railing or other safety device to provide the necessary protection to the worker. Consequently, claimant's own negligence being inapplicable under section 240(1), the State was properly held absolutely liable for the full extent of the damages proximately caused by the absence of guardrails or other safety device to prevent a fall from the scaffold (emphasis added). Bland, supra at 461-462.
The Cartella decision is also distinguishable from the present facts in that the Fourth Department based its reversal on the ground that the facts were undisputed that while the plaintiff was repairing an area near the ceiling of a building, he fell from a plank or scaffolding that was elevated eight feet from the floor that "had no guardrail and no other safety devices were provided. The failure to provide any safety device violates Labor Law § 240(1). . . . and the failure to provide guardrails and whatever safety devices are necessary to protect the worker violates that section regardless of the height of the scaffold" (Cartella, supra at 1089).
Finally, the Kalofonos decision is similarly distinguishable from the facts in the present claim. Although similarly involving blasting operations on a bridge with scaffolding that did not have safety railing, the claimant in Kalofonos was not provided with any other safety devices to provide him with proper protection as he performed his work. As stated in the underlying decision by Court of Claims Judge Frank S. Rosetti:
"We also observe that devices other than safety railings (such as safety lines, safety harnesses, safety nets or toe-boards) could singly or in combination provide proper protection. Further, the placement of the truck and the method of having claimant work beyond the vertical supports near the rear edge of the planking did not afford him proper protection. (Cf. Cardile v. D'Ambrosia, 72 AD2d 544, 420 NYS2d 732.) Our conclusion of State liability under subdivision 1 is based on the factual finding that the mere two flat planks and vertical frame supports did not provide proper protection for a workman under the circumstances of this case." Kalofonos v State, 115 Misc 2d 692 (1982).
In the present claim, the plaintiff's testimony that he fell and was injured when the scaffolding moved establishes prima facie that the statute was violated and that the violation was a proximate cause of his injuries (Pearson v Wallace, 140 AD3d 1731 [4th Dept 2016];Jerdonek v 41 W. 72 LLC, 143 AD3d 43, 45 [1st Dept 2016]). The burden of proof thus shifts to the defendants to raise a triable issue of fact as to whether there was a violation of Labor Law § 240 (1) (see Gallagher v. New York Post, 14 NY3d 83, 88 [2010]). The defendants contend that guardrails were not feasible for the blasting operations performed by claimant and his co-workers and that other safety equipment was provided so as to provide proper protection to workers during the blasting operation. Defendants further allege that claimant was a recalcitrant worker in that he removed the safety equipment provided to him to prevent a fall, namely, a safety harness and lanyard, after entering the containment area and prior to beginning his work on the V-deck and scaffolding.
The Court finds that the defendants have submitted sufficient proof to create issues of fact as to whether claimant was a recalcitrant worker by removing the safety harness he had been provided and instructed to use prior to commencing blasting operations on the day of the incident and whether claimant's action in so doing was the sole proximate cause of his injuries. As was recently held, "[t]he controlling question is not whether plaintiff was 'recalcitrant', but whether a jury could [find] that his own conduct . . . was the sole proximate cause of his accident (Fazekas v Time Warner Cable, Inc., 132 AD3d 1401 [4th Dept 2015], citing Cahill, supra at 39-40). As a result of the conflicting deposition testimony concerning the ability to tie-off inside the containment area utilizing the safety harness, an issue of fact also exists as to whether the safety harness could be attached so as to permit the claimant to freely move about the V-deck platform and scaffolding to perform blasting operations, as well as from the scaffold where he fell (see Garzon v Viola, 124 AD3d 715 [2nd Dept 2015]).
Finally, the defendants also contend that the claimant's admitted use of marijuana the day prior and soon before commencing his work on the day of the incident precludes summary judgment is without merit under these facts. There is no evidence that claimant's marijuana use was a proximate cause of his fall. Furthermore, even if proof was provided, it has been held that where the injured party falls from scaffolding lacking safety railings, summary judgment under Labor Law § 240 (1) will be granted even where it is alleged that the injured party was intoxicated (Moran v 200 Varick St. Assoc. LLC, 80 AD3d 581 [2nd Dept 2011]).
Based on the foregoing, Claimant's motion no. M-88989 for summary judgment is denied.
January 12, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The Court has read and considered the following papers: 1. Claimant's notice of motion filed July 28, 2016 and attached expert affidavit of Peter A. Tasca with annexed exhibit A. 2. Affirmation of Attorney Richard C. Brister dated October 5, 2016 with annexed Exhibits A through P; 3. Claimant's reply affidavit filed November 7, 2016 with annexed Exhibits A and B; Volume I with Exhibits A through H; and Volume II with Exhibits I through CC.