Opinion
# 2019-049-002 Claim No. 121611 Motion No. M-91912 Cross-Motion No. CM-92651
01-25-2019
CHERYL JOHNSEN v. THE STATE OF NEW YORK
Sacks and Sacks, LLP By: Andrew R. Diamond, Esq. Smith Mazure Director Wilkins Young & Yagerman, P.C. By: Stacy I. Malinow, Esq.
Synopsis
Case information
| UID: | 2019-049-002 |
| Claimant(s): | CHERYL JOHNSEN |
| Claimant short name: | JOHNSEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121611 |
| Motion number(s): | M-91912 |
| Cross-motion number(s): | CM-92651 |
| Judge: | DAVID A. WEINSTEIN |
| Claimant’s attorney: | Sacks and Sacks, LLP By: Andrew R. Diamond, Esq. |
| Defendant’s attorney: | Smith Mazure Director Wilkins Young & Yagerman, P.C. By: Stacy I. Malinow, Esq. |
| Third-party defendant’s attorney: | |
| Signature date: | January 25, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By claim filed August 9, 2012, claimant Cheryl Johnsen seeks to hold defendant State of New York liable under Labor Law §§ 200, 240 (1) and 241 (6) for personal injuries she sustained in the course of her employment as an iron worker with non-party Northeast Steel (“Northeast”). Her work for Northeast was performed pursuant to a contract between defendant State of New York and the DeFoe Corporation (“DeFoe”), under which the latter carried out structural steel repairs on the Gowanus Expressway in New York City. DeFoe hired DeFoe/Northeast Joint Venture (“JV”) as a subcontractor to perform ironwork on the project.
According to the claim, Johnsen was injured on July 23, 2012, while she was working in a basket of an elevated lift truck (also referred to as a man-lift or boom-lift). As she was performing repairs to a section of the expressway, non-party Javier Restrepo, who was driving a car carrier trailer, collided with her basket. The force of the collision caused her to strike the basket and a nearby girder, and as a result she suffered injuries.
Defendant now moves for summary judgment dismissing the claim in its entirety. Claimant cross-moves for a grant of summary judgment in her favor on the Labor Law §§ 240 (1) and 241 (6) causes of action.
In support of its motion, defendant attaches a number of exhibits to its affirmation in support, including claimant’s deposition testimonies (Def Exs L, M, N), photographs marked at her deposition (Def Ex P), and the deposition testimony of New York State Department of Transportation (“DOT”) employee John McElrath (Def Ex O). In addition, in a subsequent Affirmation in Further Support (“AFS”), defendant submits as exhibits the deposition testimony of John Kiselica of DeFoe and former DOT employee Andrew Cohn, as well as a number of other exhibits relating to Kiselica’s deposition.
I. Defendant’s Proof
Cheryl Johnsen Deposition Testimony
Claimant’s testimony sets forth the following account of the events at issue: On the day of the incident, Johnsen and co-worker Sean Geoghan were tasked with changing steel guide angles connected to a bearing that was part of the support system of the Expressway (Def Ex L at 50-51).
To reach the area, they used a man-lift stationed on Third Avenue. Johnsen stated that DeFoe workers closed off the right lane of the road by using plastic barrels, cones, and white and orange barriers (id. at 89; Def Ex M at 152). The left lane remained open to traffic (Def Ex L at 107). According to Johnsen, it was not uncommon for the cones to be hit by vehicles (Def Ex M at 155-156). Johnsen acknowledged that there was an attenuator truck with an arrow located in the right lane about 20 to 30 feet from her man-lift, and it was always present before her work started (Def Ex L at 125-126, Ex M at 153-154). During the course of the project DeFoe supplied concrete barriers and there was one “right across the street” on the day of the accident (Def Ex M at 165-166).
According to claimant, she expressed concern to her co-workers that they were in danger because there were no live flaggers (i.e., employees stationed in the area to watch the site for cars and control traffic) (Def Ex L at 109-110), although she noted that on certain occasions, flaggers employed by DeFoe were present (Def Ex M at 173). Johnsen indicated that among the ironworkers, there was always concern for the danger posed by the traffic on the adjacent roadway. She admitted that she never formally complained to her on-site supervisors about the lack of flaggers and other safety issues, but some of her co-workers had. In particular, she noted that some had “bickered” with a DeFoe supervisor about the placement of traffic cones (Def Ex M at 163).
At the time of the accident, Johnsen’s man-lift was positioned in the closed lane. She was wearing a harness that was attached via a lanyard to the man-lift, and her hard hat (Def Ex L at 168-170). She entered the basket of the man-lift on ground level, while a co-worker entered a separate basket (id. at 98, 100, 123). Once she was inside the basket her foreman positioned the lifts so she and her co-worker were in position to do their work (id. at 122-123). The workers in the basket were also able to manipulate the positioning of the boom-lift via controls found in the basket.
At some point earlier on the day of claimant’s accident, the attenuator vehicle was struck by a truck, and police came to the scene (Def Ex L at 128-129). Eventually the truck left the area, and Johnsen once again ascended via the man-lift to her work area. As she was inside her basket, positioned beside a girder, she heard a noise that “sounded like the bridge was coming down” and like “something hit the steel” (Def Ex L at 138, Ex N at 136). Then she was whipped around like a “rubber band” between the girder and the column where she was working (Def Ex L at 138). She remembered that every part of her body and her face came into contact with something in the area, but she did not fall out of the basket (id. at 170, 182, 186).
The foreman brought Johnsen’s basket back to ground level (id. at 183). She did not see the vehicle that came in contact with her man-lift before the accident occurred, and was not certain if she saw it at any point after the incident (Def Ex N at 33-34). She was told, however, that the vehicle that hit the lift was a car carrier (id. at 145, 149, 160).
Johnsen did not remember what happened from then on except for what she learned via conversations with people that were on the worksite (Def Ex L at 187). She believes that, during the accident, she lost consciousness (Def Ex N at 34). Ultimately, she was taken to the hospital (Def Ex L at 190).
John McElrath Testimony
John McElrath was employed by DOT as the Engineer in Charge of the Gowanus Expressway project. He testified that the work being performed at the time of the incident was part of a State project. The State hired consultant engineers and contractors to complete the work, which was governed by a contract.
McElrath remembered claimant’s accident, but did not witness it (Def Ex O at 76). He was stationed at the “field office” when he was notified of the event (id. at 115). McElrath also remembered what he characterized as a minor accident that took place earlier that day involving an attenuator truck (id. at 115-116) – presumably the same accident referenced in Johnsen’s testimony.
McElrath did not know if flaggers were stationed in the area where Johnsen worked (id. at 82). When asked if various inspection reports indicated that there were any flaggers in the area, he stated: “I don’t know any report over my years that specifically point out flagman” (id. at 82).
Each day, McElrath reported to DeFoe’s shanty underneath the Gowanus, where he would meet with some of the contractor’s employees (id. at 64). He was involved in weekly safety meetings with the inspectors, at which topics such as the use of traffic safety controls and devices were discussed (id. at 69, 72). McElrath stated that the contractor was responsible for directing the steelworkers on how to perform their work (id. at 180-181).
McElrath testified that the inspectors on the site reported directly to him, and he would assign them their duties on a given day (id. at 28). His responsibilities also included enforcement of the contract “as to specifications, safety” and making sure the project was carried out in a “workmanlike” manner (id. at 31). Five or six inspectors on the site prepared daily reports, which provided McElrath with information regarding when and where lanes were closed, and what traffic control devices were used (id. at 31, 46-47). The inspectors’ jobs included oversight of traffic control systems, including lane closures (id. at 32).
McElrath noted that the Manual of Uniform Traffic Control Devices (“MUTCD”) was followed on all State jobs, and part of an inspector’s job was to make sure the manual was complied with on a daily basis (id. at 34). He stated that on this project, DeFoe was responsible for zone traffic controls, which included developing and enforcing the safety plan at the worksite (id. at 35, 83, 85). Specifically, an engineering consulting company prepared the daily plans concerning lane closures (id. at 40), and DeFoe was responsible for following those plans (id. at 41-42). McElrath believed that it was the City of New York that issued permits to close down lanes during work (id. at 36).
Inspectors did not have the authority to change the protections that were in place for traffic safety (id. at 76). Perhaps twice a year, a DOT safety unit would inspect and review work zones to look for deficiencies (id. at 93). Such an inspection had been carried on July 19, 2012, just days before claimant’s accident (id.).
John Kiselica Testimony
John Kiselica was employed by DeFoe as Superintendent on the Gowanus Expressway project (Def AFS Ex B at 11). He worked in the field, interacting with the inspectors and holding monthly progress meetings with them (id. at 100). Kiselica had the authority to stop the work of anyone he observed working unsafely, and to have any unsafe condition corrected (id. at 37-38). He said that such corrections could also be demanded by the inspectors (id. at 39, 56). Kiselica had the authority to warn, discipline, and fire employees (id. at 46).
By way of example, Kiselica testified that if he saw a worker with a basket boomed out over traffic, he would have told that person to stop what he or she was doing and reposition the lifts to get out of traffic (id. at 101-102). Every week he would have “tool box safety talks” with workers that included the topic of working in traffic or over traffic (id. at 102).
Kiselica testified that DeFoe employed a teamster and two laborers for maintenance, protection, and traffic, which he labeled his “MPT” crew (id. at 24-25). He said that DOT provided drawings and specifications covering lane changes, and would acquire the necessary permits from the City to allow for lane closings on the project, while DeFoe would implement the plan (id. at 26-27). Kiselica believed that there was only one State employee on the job site, the Engineer in Charge, and the State would hire subcontractors to supply the inspection force (id. at 29). Inspectors were assigned to each work location (id. at 31).
Kiselica stated that to implement daily road closings, DeFoe would use signs, barrels, cones, flashing arrow boards, impact attenuators, and other signage (id. at 33-34). A teamster would drive an attenuator truck to the work location, and two laborers were placed in charge of the work zone traffic controls (id. at 31, 35). If traffic had to be stopped, flagmen would be needed (id. at 33). Concrete barriers were not used on the project for the area of Johnsen’s work (id. at 36).
In the event Kiselica decided that something had to be changed in regard to work zone traffic controls, he would call his MPT crew and tell them to implement the change (id. at 48). For instance, if he wanted to add a flagman he could have done so (id. at 48), but he did not consider using flagmen at in the area where the accident took place (id. at 75). He did not remember any of the people on the project making requests for flagmen or complaining about their absence (id. at 75, 105).
Kiselica knew claimant as a journeyman ironworker, and recalls responding to the accident scene and talking to her (id. at 76). After the incident, claimant told him that a truck had hit her as she boomed down over traffic (id. at 84, 119). Kiselica stated that the trailer was in an open travel lane when it struck the basket; but acknowledged that he reached that conclusion only because none of the traffic control devices on the roadway were upset (id. at 118).
Kiselica filled out a Supervisor Report on the accident stating: “Accident caused because lift was placed over traffic where it could be hit” (Def Ex E). A Vehicle and Equipment Accident Report prepared by DeFoe and appended to defendant’s reply submission stated: “Lift boomed down into traffic and was struck by a car carrier tractor trailer” (Def Ex F). The source and basis for the information on this latter report is unclear.
Andrew Cohn Testimony
At the time of the accident, Cohn was employed by DOT as a transportation inspector on the Gowanus Expressway project, reporting to McElrath (Def AFS Ex C at 18-22). He believed that he was the only inspector employed by DOT on the project, as the other inspectors were employed by B&H Engineering (id. at 97-98).
Part of Cohn’s job was to ensure that the contractors complied with safety specifications (id. at 39). If he observed contractors not in compliance, he would contact B&H Engineering’s chief inspector Carlos Munoz (id. at 40, 98), who in turn would speak to the contractor.
Cohn inspected the work zone traffic controls (id. at 43-44 ). If there was a lane closure he would see if “appropriate signage was out and that everything appeared to be in accordance with the specs” (id.). He noted, however, that since lane closures were a common occurrence, he did not check every single time (id. at 45). Cohn recalled that safety devices such as an impact attenuator with an arrow board, barrels to taper the traffic, and a type of plastic barricade were used on the project (id. at 46). He stated that flagmen were used intermittently, including by Defoe, but it was not the norm (id. at 52-53). He did not know what the work permits allowed in that regard (id. at 60). He stated that if he wanted a flagman used, he would call Munoz (id. at 66). He noted that “[i]t wasn’t my decision to make, but I could have possibly, of course [sic]” (id. at 78).
* * *
Based on the forgoing evidence, defendant argues that it is entitled to a grant of summary judgment dismissing the claim. Specifically, it contends (1) claimant cannot sustain her Labor Law § 200 and common law negligence causes of action, since the State had only general supervisory authority over the Gowanus project, and neither directed nor controlled the manner and means of Johnsen’s work, nor did it create or was on notice of a defective condition that caused claimant injury; (2) claimant cannot prove her Labor Law § 241 (6) claim, as defendant was compliant with the State Industrial Code because it placed barriers against vehicle access to the work area, and the alleged code violations are either inapplicable to the facts of this case, or are too general to support this cause of action; and (3) Labor Law § 240 (1) is inapplicable, as claimant’s accident was not caused by a gravity-related risk.
II. Claimant’s Proof
In opposition to defendant’s motion and in support of her own application, claimant submits a number of exhibits, including documents concerning the contractual relationships among the various actors on the site. In addition to the deposition transcripts of Andrew Cohn (DOT) (Cl Ex 15) and John Kiselica (DeFoe) (Cl Ex 16), addressed supra, claimant submits additional transcripts including those of Javier Restrepo (Cl Ex 9), Robert Colella (DeFoe) (Cl Ex10), Carlos Munoz (B&H) (Cl Ex 11), Richard Lucas (JV) (Cl Ex 12), Sean Geoghan (JV) (Cl Ex 13), and Carlos Fernandez (Cl Ex 14). Claimant also submits the Engineer’s Report of Richard M. Balgowan (Cl Ex 17), as well as a memorandum of law.
Propriety of Claimant’s Submissions
Before summarizing the proof submitted by claimant, I must first consider whether all the evidence presented is properly before me. In its Affirmation in Reply and in Opposition (“Def Reply”), defendant argues that claimant's cross motion must be denied and its opposition rejected as procedurally defective. Defendant points to the following deficiencies in claimant’s filing: 1) the pleadings were not attached to claimant’s cross motion; 2) none of the transcripts submitted on claimant’s cross motion were executed; and 3) the report of claimant’s expert is unsworn and fails to state his qualifications.
Claimant seeks to remedy these problems in her counsel’s Reply Affirmation (“Cl Reply”). With that affirmation, claimant submits: 1) what appears to be the Notice of Claim served on the City of New York (Cl Reply Ex 1) ; 2) defendant's Verified Answer in this case (Cl Reply Ex 2); 3) the Verified Bill of Particulars, and a number of Supplemental Bills of Particulars (Cl Reply Ex 3); and 4) the signature pages of claimant's 50-h hearing, and deposition transcripts (Cl Reply Ex 4). Claimant points out that the deposition testimony of Cohn and McElrath were executed (as annexed to defendant’s Affirmation in Further Support), and with respect to Restrepo, Colella, Munoz, Lucas, Geoghan and Kiselica, counsel served copies of the transcripts on defendants in this action and the companion case in Supreme Court (Cl Reply Ex 5). As to claimant’s expert, claimant submits his original report as a sworn affidavit (Cl Reply Ex 6 ), along with his curriculum vitae.
The omission of the pleadings in claimant’s moving papers is a procedural error that may be overlooked, if the record is “sufficiently complete” (Serowik v Leardon Boiler Works Inc., 129 AD3d 471, 472 [1st Dept 2015]). Such is the case here, where copies of the pleadings are filed with the Clerk of the Court and included with defendant's own motion (see id. [failure to attach pleadings not fatal to motion, when copies of the pleadings had been submitted by plaintiff and other party]; Studio A Showroom, LLC v Yoon, 99 AD3d 632 [1st Dept 2012] [declining to deny motion for failure to append pleadings when the pleadings were filed electronically and available for the court’s consideration]). With respect to the unexecuted transcripts, claimant has now submitted adequate proof that they either had been executed, or that a letter was sent to defendants seeking that the transcripts be executed and sufficient time has now passed so that they may be deemed signed (see CPLR 3116 [a]). The only transcript that was not executed, and where no letter was sent, was the deposition of non-party Carlos Fernandez. According to claimant’s counsel, Fernandez’ original transcript was never sent to his office. Be that as it may, under CPLR 3116 (a) the party seeking to use an unsigned deposition transcript bears the burden of demonstrating that a copy of the transcript had been submitted to the deponent for review and that the deponent failed to sign and return it within 60 days (see Franzese v Tanger Factory Outlet Ctrs., Inc., 88 AD3d 763 [2d Dept 2011]). While claimant has met that burden in regard to the transcripts mentioned above, there is no indication that claimant complied with this provision with respect to Fernandez, and thus his deposition is not properly before me.
The defect in claimant's expert's report was corrected in claimant’s reply papers, and the inclusion for the first time of Balgowan's CV could have been challenged on substantive grounds in defendant’s sur-reply, but was not (see Goldstein v Town of Warwick, 87 AD3d 1054 [2d Dept 2011] [where issue raised the first time in the defendant's reply papers in support of its motion for summary judgment, court appropriately addressed issue after granting plaintiff opportunity to respond in sur-reply]). Therefore, I will consider it on this motion.
With the scope of the record decided, I proceed to consider the evidence presented by claimant.
Javier Restrepo Testimony
Non-party Javier Restrepo operated the car carrier trailer that was involved in the accident at issue. He stated that just before the accident he turned onto Third Avenue (Cl Ex 9 at 75). There were two lanes of traffic separated by a traffic line, and he was driving in the right lane of traffic (id. at 78-79). At some point he observed cones on the right hand side of the road indicating that the lane in which he was traveling was closed, as well as other “equipment.” He did not notice any man-lifts in the area, nor did he see any flagmen or an attenuator truck (id. at 90-91, 104). On prior occasions he had seen flagmen directing traffic in that area (id. at 202).
According to Restrepo, he realized that there had been an accident involving his vehicle when he heard a “clap,” at which time he stopped the trailer (id. at 110). Carlos Fernandez, another worker driving behind him, later told Restrepo that he had “‘hit that girl’” when the basket of her lift was being lowered (id. at 125). According to Restrepo, Carlos said that the “‘girl was coming down with that thing and hit you in your trailer’” (id. at 128). He stated that it was the frame of his trailer that made contact with the basket (id. at 131).
Robert Colella Testimony
Robert Colella is Vice President and General Superintendent of Defoe. He stated that the contract under which DOT hired DeFoe to work on the Gowanus Expressway site required that DeFoe prepare a site specific safety plan (Cl Ex 10 at 12). He would visit the various job sites at which DeFoe performed work twice a week to talk to the superintendent and, if necessary, attend meetings with the State (id. at 19-20). The maintenance and protection of traffic work that Defoe employees performed was for the purpose of enabling safe access to the work site over live traffic lanes (id. at 34-35). This would require that portions of the roadway be taken out of service (id. at 35). Colella acknowledged that if Defoe or the State determined that flaggers were necessary, the contract provided for their use, and such flaggers could have stopped traffic if there was a need (id. at 130-132).
Carlos Munoz Testimony
Carlos Munoz was Chief Inspector on the Gowanus Project, employed by B&H. He testified that if the contractor decided to do so, it could put control devices in place, including warning signs, merge signs, barrels or barricades, an attenuator truck with an arrow board, and cones (Cl Ex 11 at 17-18). He believed that the contractor had the discretion to utilize flagmen for traffic control (id. at 21), and it was the contractor’s responsibility to protect the workers and provide them with safe access to worksites (id. at 107, 110 ). Munoz agreed that the safety plan provided that the controls on traffic, which can include flagmen, were designed to protect the work operation from errant vehicles (id. at 110-111).
Richard Lucas Testimony
Richard Lucas was employed by DeFoe/Northeast JV, and was claimant’s direct foreman on the day of her accident (Cl Ex 12 at 20). At the time of the accident he was not facing claimant, and thus did not observe the collision (id. at 126-127). When he heard a noise, he turned around and saw a car carrier next to claimant’s man-lift (Cl Ex 12 at 67, 70). He testified that “the lift was where it was supposed to be when I turned around, everything was on the up and up” (id. at 130). Lucas stated that after the impact claimant’s lift was “actually . . . swinging back into the closed lane” (id. at 151), and the carrier was entirely in the moving lane of traffic (id. at 152). The car carrier did not knock over any of the work zone barriers (id. at 154-155).
Lucas stated that DeFoe workers put out the work zone traffic controls. He never heard anyone request that flagmen be used on the project (id. at 142).
Sean Geoghan Testimony
Sean Geoghan was employed by DeFoe/Northeast JV, and worked with claimant on the day of the accident (Cl Ex 13 at 11). He and Johnsen were in two separate lifts about five to seven feet apart, and on opposite sides of a beam (id. at 22, 33). Just prior to the accident he heard claimant’s man-lift engaging, but could not tell what direction it was moving (id. 84-85).
Geoghan testified that he did not see the accident (id. at 40), but gave the following account:
“I heard the accident happen. I knew where [Johnsen] was positioned obviously. Her man lift basket was directly on the other side of the beam from me. I heard metal on metal and the rattling of her basket cage . . . and her bouncing around in it” (id. at 41, 45).
Geoghan then looked down and saw that it was a car carrier trailer that made contact with claimant’s basket (id. at 41). He did not see any of the work zone traffic controls out of place (id. at 71).
Geoghan noted that when using a man-lift, workers “[were] typically supposed to steer clear of overhanging into and hanging into that moving lane of traffic” (id. at 59). He never requested that flagmen be used on the project (id. at 68), adding that “ flaggers and the safety apparatuses that are set up for us to perform our work” were not his “focus,” and he paid “ very little attention to it” (id. at 70).
Balgowan Report
Claimant also relies on the Engineer’s Report of Richard M. Balgowan (Cl Ex 17). He opines with a reasonable degree of engineering certainty that the State was negligent, as it failed to enforce the plans and specification it devised calling for flaggers. According to Balgowan, flaggers were needed based upon the foreseeable risks of a collision between workers and vehicles. Moreover, the State had the authority to direct Defoe to use flaggers. Under the circumstances presented, he stated that the barricading was ineffective to protect claimant.
Discussion
On cross motions for summary judgment, each movant must tender sufficient evidence to demonstrate the absence of any issue of material fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this showing has been made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact, which must be resolved by a trial (see Zuckerman, 49 NY2d at 562). If a movant fails to meet its prima facie burden, summary judgment must be denied regardless of the sufficiency of the response (see Winegrad, 64 NY2d at 853).
I consider the application of these standards in regard to each of the causes of action asserted by claimant.
Labor Law § 240 (1) “imposes absolute liability on building owners and contractors whose failure to provide proper protection to workers employed on a construction site proximately causes injury to a worker,” which injury results from “the type of elevation-related hazard to which the statute applies” (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 7 [2011] [citations and internal quotation marks omitted]) In making this determination:
“ ‘the dispositive inquiry . . . does not depend upon the precise characterization of the device employed or upon whether the injury resulted from a fall, either of the worker or of an object upon the worker. Rather, the single decisive question is whether plaintiff's injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential’ ” (Wilinski, 18 NY3d at 10, quoting Runner, 13 NY3d at 603).
However, the mere fact that gravity played some attenuated role in an accident will not support a section 240 (1) claim, if the accident was not the result of an elevation differential (see Toefer v Long Is. R.R., 4 NY3d 399, 408 [2005] [section 240(1) cause of action dismissed when injury resulted from beam that “flew at [claimant] either upwards or horizontally”]; Oakes v Wal-Mart Real Estate Bus. Trust, 99 AD3d 31, 33-39 [3d Dept 2012] [truss 5 ½ feet high “fell over onto plaintiff”; no section 240 (1) claim because there was no elevation differential between truss and plaintiff]; Brownell v Blue Seal Feeds, Inc., 89 AD3d 1425 [4th Dept 2011] [no section 240 (1) cause of action when injury caused by “bundle or piece of rebar that struck his leg swung outward in a horizontal direction”]; Smith v Hovnanian Co., 218 AD2d 68, 70-71 [3d Dept 1995] [no section 240 (1) cause of action when plaintiff was “injured as a result of the horizontal movement of the load of sheetrock”]).
While claimant testified that she was elevated in a lift at the time of the accident, her injuries occurred when another vehicle crashed into the truck carrying that lift. Claimant did not fall out of the lift; rather she stated that she was “whipped around” (Def Ex L at 138). In short, while she was elevated above the ground when injured, she nowhere indicated in her depositions that she was harmed as a result of gravity. The force applied to the lift-basket was the result of horizontal movement of the trailer that struck it (see Toefer v Long Is. R.R., 4 NY3d 399, 408 [2005] [plaintiff’s section 240(1) cause of action dismissed when injury resulted from beam that “flew at him either upwards or horizontally”]).
Claimant argues that this case falls under the protection of section 240 (1) because her injury was proximately caused by the failure of the man-lift, which is the functional equivalent of a scaffold. Claimant seeks to support this contention by a number of cases involving collapsed scaffolds. Each of these cases, however, involved accidents that fall well within the gravity related standard of section 240 (1) (see Dos Santos v State of New York, 300 AD2d 434 [2d Dept 2002] [summary judgment on section 240 (1) claim granted to worker who was thrown from an elevated lift truck that toppled over while he was painting a building]; Kyle v City of New York, 268 AD2d 192 [1st Dept 2000]) [claimant “fell approximately thirty feet” from scaffold, and dangled in mid-air]).
Claimant’s man-lift, however, did not collapse or fall. Indeed, claimant confirmed that this was the case at her 50-h hearing, during which the following exchange took place:
“Q The basket itself, did it fall to the ground?
A No, it whacked back and forth ten times, like it was caught up on something”
(Cl Ex 18 at 53).
Claimant contends that she may nevertheless recover under section 240(1), based on the principle that “[t]he fact that the plaintiff did not actually fall from the [device] is irrelevant as long as the ‘harm directly flowed from the application of the force of gravity to an object or person’” (Lacey v Turner Constr. Co., 275 AD2d 734, 735 [2d Dept 2000], quoting Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501 [1993] [citations omitted]). In Lacey, the Appellate Division found that summary judgment was properly granted to plaintiff who, while standing on a ladder that lost contact with a wall and turned sideways, was injured while turning the ladder back against wall. The court found that claimant had injured his back “in saving himself from falling to the ground,” and thus while he did not actually fall, the injury was the result of gravitational force (id. at 735).
There is no evidence that this was what occurred here. Claimant’s own account of the injury indicates that it was the result of a vehicular collusion that caused her “basket to physically hit the column” where she was working a number of times (see Cl Ex 18 at 51). She gives no indication that the injury was caused by a fall, or her efforts to prevent a fall.
Instead, claimant argues that her injury is covered by section 240 (1) because she “nearly” fell out of the basket and would have done so “[b]ut for her attachment to the basket with a safety harness, and the fortuitous location of the structural steel columns supporting the Gowanus Expressway in her work area” (Cl Mem in Opp ¶ 9). But neither of these assertions, if taken as true, show that her injuries were the result of “the application of the force of gravity.” The above cases make clear that an injury suffered in the course of preventing a fall is covered by section 240 (1); the caselaw does not indicate that the statute applies to a case where a horizontal collision caused the claimant to be injured by horizontally striking another object, only because she might have fallen under other circumstances, or “nearly” fell.
In sum, defendant has made its prima facie case for dismissal of the Labor Law § 240 (1) claim by demonstrating that the injury was not a “consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” (see supra p 16). In response, claimant has failed to raise a triable issue of fact to defeat defendant’s summary judgment motion. As a result, defendant is entitled to summary judgment on claimant’s section 240 (1) cause of action.
Labor Law § 241 (6) imposes a non-delegable duty on an owner of property to 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]). In order to state a claim under this provision, a claimant must allege that defendant violated a rule or regulation that sets forth a specific standard of conduct – as opposed to a general reiteration of common law principles – and must demonstrate that the injuries suffered were proximately caused by the violation (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 504–505 [1993]).
Claimant has alleged violations the following Industrial Code sections: 12 NYCRR §§ 23-1.5; 23-1.7; 23-1.8; 23-1.18; 23-1.29; 23-1.32; 23-2.1; 23-2.4; 23-2.5; 23-2.6; 23-2.7; 23-2.8; 23-2.9. Of these provisions, the only one that sets forth a specific directive that can serve as a predicate for Labor Law § 241 (6) claim, and is applicable to the claim at issue, is 12 NYCRR § 23-1.29, concerning the control of public vehicular traffic (see McGuinness v Hertz Corp., 15 AD3d 160, 161-162 [1st Dept 2005] [section 241 (6) claim for violation of 12 NYCRR § 23-1.29 allowed to proceed to trial]). Indeed, claimant’s opposition and cross-motion address only this regulatory standard. By failing to mention any of the other alleged code violations in her motion papers, claimant has “abandoned” any cause of action based on the excluded provisions (see Cardenas v One State St., LLC, 68 AD3d 436, 438 [1st Dept 2009]).
Section 23-1.29 provides:
“(a) Whenever any construction, demolition or excavation work is being performed over, on or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work area shall be so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons.
(b) Every designated person authorized to control public vehicular traffic shall be provided with a flag or paddle measuring not less than 18 inches in length and width. Such flag or paddle shall be colored fluorescent red or orange and shall be mounted on a suitable hand staff. Such designated person shall be stationed at a proper and reasonable distance from the work area and shall face approaching traffic. Such person shall be instructed to stop traffic, whenever necessary, by extending the traffic flag or paddle horizontally while facing the traffic. When traffic is to resume, such designated person shall lower the flag or paddle and signal with his free hand.”
Before turning to the specifics of defendant’s proof regarding the safety measures on the site, there are several preliminary matters to address. First, defendant contends that it cannot be liable under this provision because claimant was not hit while she was in the lane closed to traffic (see Def Reply ¶ 63). The evidence for this contention includes the testimony of Kiselica, who did not witness the accident. Kiselica based his conclusion on his observation upon arriving at the accident scene that the various control devices had not been overturned (see Def AFS, Ex B at 118). He acknowledged, however, that he did not discuss with anyone present whether they had reset these devices after the incident (id. at 119). Moreover, Johnsen and Lucas gave testimony that indicates that claimant was in the closed lane at the time of the accident (see e.g. Def Ex M at 160 [Johnsen testimony that attenuator truck in same lane as claimant was working]; Cl Ex 12 at 130 [Lucas testimony that claimant’s lift was where it was supposed to be]). In short, there is a divergence of proof on this issue, and thus a question of fact which cannot be resolved on summary judgment.
Second, claimant contends that the absence of flagmen by itself constituted a violation of this regulation, warranting denial of the motion. But the rule is phrased in the disjunctive: the State has a nondelegable duty to either fence or barricade Johnsen’s work area or, in the alternative, ensure that public vehicular traffic was “controlled by designated persons.” There is nothing in the regulation that requires that flaggers be provided in addition to a barricade (see Lamuraglia v New York City Transit Auth., 299 AD2d 321, 324-325 [2d Dept 2002], lv denied 100 NY2d 515 [2003] [defendant “complied with the applicable regulations,” i.e., section 23-1.29, by erecting a fence, notwithstanding that “jury could have properly reached a determination that the absence of a stronger barricade and/or a flagman made the worksite unsafe,” and this was proximate cause of injury]).
Claimant also argues that the cones and attenuator were “[o]bviously . . . ineffective” since they “did not prevent the accident’s occurrence” (Cl Affirmation in Support of Cross Motion [“Aff in Supp”] ¶ 44). Such a post hoc analysis, however, is insufficient to demonstrate defendant’s non-compliance (see Lucas v KD Development Const. Corp., 300 AD2d 634 [2d Dept 2002] [granting defendants’ motion for summary judgment on claim premised on section 23-1.29, upon showing that they placed flagmen at scene, notwithstanding that the flagmen did not prevent plaintiff from being struck by vehicle]). Further, claimant asserts that the underlying plans and specifications contemplated the use of flaggers, pointing to language in the governing contract that provided for their use (see Colella Dep., Cl Ex 10, at 130). But this does not alter the above conclusion that defendant was not in violation of the regulation merely because it did not employ flaggers; whatever the contract says, a section 241 (6) claim must allege a violation of the Code, and the Code does not require flagmen if there is fencing or barricades.
Turning to the specific evidence of safety measures, defendant had the burden to show prima facie that the worksite was fenced or barricaded so as to direct traffic away from it. Defendant has met that burden, as there is testimony that cones, barrels or orange and white barricades were present to block the lane where work took place, and an attenuator truck was placed at the site (see Def AFS ¶ 63 & Ex B at 33-34 [Kiselica testimony that vehicle access to the site was blocked with signs, barrels, cones, flashing arrow boards, impact attenuators, and other signage]). Other testimony confirms that various control devices such as cones, barricades and the truck were generally used on the site (see e.g. Def Ex C at 46). Indeed, claimant’s expert Richard Balgowan stated that “[a]t the time of the accident’s occurrence, the following work zone traffic controls were in place: Arrow Board, Truck attenuator, safety cones, and barrels” (see Cl Ex 17 at 5). I find this evidence sufficient to establish prima facie defendant’s compliance with the regulatory requirement that it barricade the property.
Claimant may rebut this showing by demonstrating a question of fact as to the presence or sufficiency of these barriers (see McGuinness v Hertz Corp., 15 AD3d 160, 161 [1st Dept 2005] [“the record before us poses a material issue of fact as to whether the manner in which the barricades were deployed constituted a violation of the regulation, thereby rendering the work site unsafe and proximately causing this plaintiff's injuries”]; Keller v Kruger, 39 Misc 3d 720, 732-739 [Sup Ct, Kings Cty 2013] [claim under section 23-1.9 presented issues for trial when there was conflicting evidence on placement of flagman and barriers at the time of the accident, and conflicting expert opinion as to whether the barriers used “would have been sufficient to comply with 12 NYCRR 1.29(a)”]).
Claimant has not made such a showing. Johnsen’s own testimony regarding the barriers on the site is, at best, contradictory. She stated at her 50-h hearing that at the time of the accident there were cones present, placed every five feet (Cl Ex 18 at 34). During her depositions, she stated at various points that cones and orange and white barriers were “[p]robably not” in place when she arrived at the job site on the day of the accident (Def Ex M at 159). Later, however, she testified that the orange and white barriers were “probably” on the “white line” (id. at 160, 162; see also Def Ex M at 151 [“a few” orange and white barriers were present]). At one point she said she had no recollection of whether the cones were present on the day of the accident (id. at 160); at another she indicated that a picture showing cones and other larger barriers reflected the placement of barriers on the date in question (Def Ex L at 117 & Ex P). This uncertain evidence is insufficient to contradict defendant’s showing.
Claimant’s expert report sets forth no basis to contradict defendant’s contention that the barriers it placed met the regulatory requirements. Balgowan found that the “cones and /or barrels . . . were ineffective to prevent contact between an elevated man lift basket and larger passing vehicles such as a car carrier”; and that the cones were “sporadically placed” and a vehicle had crashed into the attenuator, but he gave no indication as to any defects in the placement or type of barriers used, or indicated what sort of barriers or fencing would be necessary to comply with the rule (Cl Ex 6 ¶ 12). Rather, he opined that because “motorists passed only inches away from the closed lane of traffic . . . [b]arricades of any kind, whether cones, barrels or concrete stanchions, were ineffective to prevent contact above the barrier with man lifts” (id. ¶ 13). In short, his testimony was that flagmen must be present to protect a worksite. Whatever the relevance of this assertion to the question of whether defendant met any duty it had to provide due care, it presents no basis for finding that the barriers at the site were insufficient to meet that prong of the governing regulation which allows defendant to comply by fencing or barricading the area to direct traffic away.
Finally, the assertion of claimant’s counsel that photographs show cones to be placed only “sporadically” (Cl Aff in Supp ¶ 42) does not meet claimant’s burden. Assuming that there is evidence in the record to demonstrate that the photographs reflect the condition of the site at the time of the accident, it does not address the other barricades which testimony indicates were present at the location. For the same reason, claimant’s reliance on Streeter v Kingston (Hartman) (2 Misc 3d 1007[A] [Sup Ct, Onondaga County 2004]) is misplaced. Streeter found that cones placed at the work zone were “insufficient to satisfy the ‘barricade’ requirement of Industrial Code § 23-1.29” because a DOT regulation “makes it clear that a ‘cone’ is not a ‘barricade’.” The regulation cited by Streeter for this provision, 17 NYCRR 292.2, has since been repealed. In any event, claimant does not rebut defendant’s evidence that other barriers were present, nor does she present an argument that such barriers did not “fence” or “barricade” the place of work.
As a result, Johnsen has failed to rebut the State’s prima facie showing, and defendant is entitled to summary judgment on the section 241 (6) cause of action.
Labor Law § 200 and Common Law Negligence
Labor Law § 200 is a codification of the common-law duty of an owner or general contractor to maintain a safe construction site (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352 [1998]; Colon v Bet Torah, Inc., 83 AD3d 1, 9 [2d Dept 2009]). Under the statute, liability can attach to owners and contractors in one of two ways. First, if the injury results from a defective condition on the premises, an owner or general contractor may be liable if it created the dangerous condition, or had actual or constructive notice thereof (see Lombardi v Stout, 80 NY2d 290, 294-295 [1992]). If, on the other hand, the injury is caused by the “manner and means of the work,” including the equipment used, then the owner or contractor will be liable only if it had “the authority to supervise or control the performance of the work’” that produced the injury (Forssell v Lerner, 101 AD3d 807, 808 [2d Dept 2012], quoting Ortega v Puccia, 57 AD3d at 61]).
Johnsen’s accident did not involve a dangerous or defective condition on the defendant’s premises. Rather, all of the contributing causes of the accident directly flowed from the manner in which the work was performed – i.e., the manner in which the site was set up so as to keep out vehicular traffic (see Delaney v. City of New York., 78 AD3d 540, 541 [1st Dept 2010] [rejecting argument that absence of “signs, traffic controls or flagmen to protect workers from oncoming traffic” barrier around site was “an inherently dangerous condition of the workplace itself for which defendant can be held liable even in the absence of supervisory control”]; Federico v State, 48 Misc 3d 1225[A] at *3 [Ct Cl, 2015] [claim alleging failure of contractors on work site to coordinate lane closings, resulting in claimant being hit by a car, involved “means and methods” for purposes of section 200]). Thus, defendant is entitled to summary judgment on this claim if it can show that there is no evidence it had the authority to supervise or control the “means and methods” of claimant’s work (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 504 [1993] [defendant is liable under section 200 “only if the injured employee could demonstrate that the named defendant had a direct hand, through either control or supervision, in the injury-producing work”]).
Under the “means and methods” analysis, it is not sufficient that defendant had “the right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications” (see Gasques v State of New York, 59 AD3d 666, 668 [2d Dept 2009], affd 15 NY3d 869 [2010] [citations omitted]; accord Harrison v State of New York, 88 AD3d 951, 954 [1st Dept 2011]). Nor does the defendant’s coordination of safety meetings suffice to impose liability under this provision (see Hughes v Tishman Const. Corp., 40 AD3d 305, 309 [1st Dept 2007]). Rather, “[a] defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” (Ortega, 57 AD3d at 62). Moreover, the relevant question is not the general nature of the defendant’s control over the worksite, but whether it had control over the “activity bringing about the injury” – i.e., in this case ensuring that vehicles did not enter the area where claimant was working (see Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 877 [1993] [owner entitled to summary judgment against section 200 claim made by claimant injured while carrying steel beam, when there was “no evidence that [it] exercised supervisory control or had any input into how the steel beam was to be moved”]).
Defendant argues that the deposition testimonies establish beyond dispute that Defoe ran the job site, determined the necessary manpower, scheduled the crews, and placed the barriers and work zone traffic controls. Specifically, they cite testimony showing that Johnsen’s daily work was supervised by DeFoe, not defendant; if there were any deficiencies, the inspectors were to tell DeFoe to address it; and the State had only general supervisory authority (see, e.g. Def Ex O at 180-181 [McElrath testimony that contractor was responsible for directing steelworkers]; id. at 35, 83, 85 [McElrath testimony that DeFoe was responsible for zone traffic controls]; Def AFS Ex B at 37-39, 46, 56 [DeFoe Superintendent Kiselica had authority to stop the work of anyone he observed working unsafely, and have unsafe condition corrected, and to warn, discipline, and fire employees]; id. at 33-34 [DeFoe would implement daily road closings]).
In opposition, claimant contends that defendant’s responsibility for the manner in which the work was performed is demonstrated by:
• Kiselica’s testimony that State inspectors would identify unsafe conditions to have them remedied (see Cl Mem of Law at 23).
• The fact that the job functions of DOT employee Cohn included enforcing the contract specifications, and such specifications included provision for the use of flagmen (Cl Reply ¶ 7).
• Cohn testified that he could “possibly” have told a DeFoe employee to add a flagman (while at the same time asserting that it “wasn’t [his] decision to make” (id. ¶ 8).
But as set forth above, the exercise of general supervisory authority including the right to enforce contract specifications does not suffice for the imposition of liability on defendant’s action (see Gasques and Harrison, supra). The record in this case demonstrates that the State had no more authority than that repeatedly found to be of a “general” nature, and insufficient to subject it to liability arising out of the means and methods of work under section 200.
Claimant’s reliance on Perrino v Entergy Nuclear Indian Point 3, LLC, 48 AD3d 229 (1st Dept 2008) is misplaced. In that action, the First Department determined that there was a triable issue of fact as to defendant’s notice of a dangerous condition, where plaintiff tripped over a valve that was not properly cordoned off. In this case, there was no dangerous or defective condition on the premises that proximately caused claimant’s injuries. And even if I were to find that the traffic control on the worksite constituted such a condition, I would nonetheless reach the same result, as claimant has adduced no evidence showing that the State had actual or constructive notice of the danger, or created it. Johnson’s testimony that she was aware some workers had “bickered” with a DeFoe supervisor about the placement of traffic cones (but never formally complained to her on-site supervisors about the lack of flaggers and other safety issues) does not demonstrate actual or constructive knowledge by the State of any dangerous condition (see supra p 3). Nor is such shown by the fact that some vehicle hit an attenuator truck’s mirror – but did not injure any workers – at some time on the same date. Indeed, there is no proof the State had any awareness before the incident involving claimant that any such accident occurred, much less that it showed that the safety measures were inadequate to protect those working on the site.
Accordingly, defendant is entitled to summary judgment on the section 200 claim. Further, the absence of evidence that the State had actual or constructive notice of any dangerous condition, necessitates granting defendant summary judgment on claimant’s cause of action for common law negligence (see Lally v JGN Constr. Corp., 295 AD2d 148 [1st Dept 2002] [upholding directed verdict on employee's common law negligence claim when there was no evidence that defendant created dangerous condition, or had actual or constructive notice thereof]).
In view of the foregoing, it is
ORDERED that defendant’s motion no. M-91912 is granted in its entirety and Claim No. 121611 is dismissed; and it is further
ORDERED that claimant’s cross motion no. CM-92651 is denied as moot.
January 25, 2019
Albany , New York
DAVID A. WEINSTEIN
Judge of the Court of Claims Papers Considered: 1. Defendant’s Notice of Motion, Affirmation in Support and annexed exhibits. 2. Defendant’s Affirmation in Further Support and annexed exhibits. 3. Claimant’s Notice of Cross Motion, Affirmation in Support and annexed exhibits, Memorandum of Law. 4. Defendant’s Affirmation in Reply and in Opposition. 5. Claimant’s Reply Affirmation and annexed exhibits. 6. Defendant’s Sur-Reply Affirmation.