Opinion
# 2018-040-096 Claim No. 128866 Motion No. M-92031 Cross-Motion No. CM-92262
10-22-2018
RESHEEMAH SMITH, as Administratrix of the Estate of RAHSSAN SMITH, Deceased, and RESHEEMAH SMITH, Individually v. STATE OF NEW YORK
GREENBERG & GREENBERG By: Mark D. Greenberg, Esq. POWERS & SANTOLA, LLP By: Michael J. Hutter, Esq. GOLDBERG SEGALLA, LLP By: Jonathan M. Bernstein, Esq.
Synopsis
State's Motion for Summary Judgment as to causes of action asserting violations of Labor Law § 200 and common-law negligence granted. Claimant's Cross-Motion for Summary Judgment as to liability on cause of action regarding Labor Law § 240(1) granted.
Case information
| UID: | 2018-040-096 |
| Claimant(s): | RESHEEMAH SMITH, as Administratrix of the Estate of RAHSSAN SMITH, Deceased, and RESHEEMAH SMITH, Individually |
| Claimant short name: | SMITH |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128866 |
| Motion number(s): | M-92031 |
| Cross-motion number(s): | CM-92262 |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | GREENBERG & GREENBERG By: Mark D. Greenberg, Esq. POWERS & SANTOLA, LLP By: Michael J. Hutter, Esq. |
| Defendant's attorney: | GOLDBERG SEGALLA, LLP By: Jonathan M. Bernstein, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | October 22, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion for summary judgment seeking dismissal of the Claim is granted as to the causes of action asserting a violation of Labor Law § 200 and common-law negligence and otherwise denied. Claimant's Cross-Motion for partial summary judgment on the issue of liability pursuant to New York Labor Law § 240(1) is granted. The remainder of the Cross-Motion is denied as moot.
The Claim, which was filed in the office of the Clerk of the Court on November 30, 2016, alleges that Claimant was appointed the Administratrix of the Estate of Decedent, Rahssan Smith, on November 22, 2016, by the Surrogate of Albany County (Claim, ¶ 1). It is further alleged that, on November 4, 2016, Decedent was an employee of P.S. Bruckel, Inc. (hereinafter, "Bruckel") (id., ¶ 17); that Bruckel was hired by Defendant to perform construction renovation, painting and/or alteration to the Smiths Basin Bridge (hereinafter, "the Bridge") located near Lock 9 on Route 149 on the Champlain Canal in the Town of Kingsbury, Washington County, New York (id., ¶¶ 5, 10, 12). It is further alleged that, due to Defendant's negligence, Decedent, while working on a platform on the Bridge, fell into the water and drowned (id., ¶¶ 21, 22). The Claim asserts causes of action for conscious pain and suffering, wrongful death, common law negligence, violations of Labor Law §§ 200, 240 and 241(6).
On January 11, 2017, Claimant filed another Claim against the State of New York, New York State Thruway Authority, New York State Canal Corporation, New York State Power Authority and New York State Department of Transportation (hereinafter, "DOT") with the office of the Clerk of the Court. That Claim was assigned number 129152. By Decision and Order dated June 6, 2017, the Court dismissed the Claim against all Defendants except the State of New York and DOT (Smith v State of New York, UID No. 2017-040-061 [Ct Cl, McCarthy, J., June 6, 2017]).
According to Defense counsel, "[t]he parties are in agreement that the proper [D]efendant is the State of New York and that Claim No. 128866 controls." (Affidavit of Jonathan M. Bernstein, Esq. [hereinafter, "Bernstein Affidavit"], ¶ 7).
Defendant has moved for summary judgment dismissing the Claim in its entirety. Claimant has cross-moved for summary judgment as to liability on her Labor Law §§ 240(1) and 241(6) causes of action. Claimant's counsel states, in his Affidavit in Support of Cross-Motion and in Opposition to Motion, that "Claimant does not oppose the State's [M]otion to the extent it seeks dismissal of [C]laimant's common[-]law negligence and Labor Law § 200 causes of action" (Affidavit of Michael J. Hutter, Esq. [hereinafter, "Hutter Affidavit"], ¶ 2). Thus, those causes of action are dismissed.
The Bridge was one of three bridges that were part of a DOT bridge painting project (Claimant's Ex. E [Deposition Transcript of Mark Schellkopf], p. 5; Claimant's Ex. F [Completion Agreement]). Initially, another company, TDA Construction, Inc., had contracted with the State to perform the painting work, but, when it failed to perform, the surety on the contract, Seneca Insurance Company, took over the project (Claimant's Ex. E, p. 7). Seneca contracted with Bruckel to take over the project for the Bridge and the other two bridges that were located nearby (id., pp. 7-8).
On November 4, 2016, Decedent was a bridge painter working on a platform erected by Bruckel, which was located directly under and ran the length of the Bridge (Bernstein Affidavit, ¶¶ 9, 15, 18; Defendant Ex. U [Affidavit of Gregory Athenian], ¶ 9). That raised platform, or suspended scaffolding, was erected so that the workers could perform work on the underside of the Bridge and was 8-10 feet above the surface of the water (Claimant's Ex. E, pp. 17, 18; Claimant's Ex. H [Deposition Transcript of Lori A. Abeel], p. 37). The platform consisted of overlapping corrugated metal sheets which were placed on top of cables, and then secured with screws and straps (Ex. G [Deposition Transcript of Adeeb David Haddad], pp. 42-43). The metal sheets were about 4 feet by 8 feet in size and each weighed about 90 pounds (Claimant's Ex. E, p. 54; Ex. G, p. 45).
Defendant also submitted as its Ex. G a copy of Mr. Haddad's deposition transcript. --------
On the date of the incident, the workers were dismantling the platform, removing the corrugated sheets (Claimant's Ex. E, p. 17). Decedent was working on the platform with five Bruckel employees, including the foreman, Mr. Haddad (Ex. G, p. 12). They were removing the sheets in an area away from the platform's edge and in the "middle" of the platform (id.; Claimant's Ex. I [Deposition Transcript of Alexander Rodriguez], p. 10). In this process, Decedent was using a screw gun, removing the screws which fastened the sheets; and, as he removed the screws, he would hand the then-removed metal sheet to Mr. Rodriguez (Claimant's Ex. I, pp. 10, 27-28).
At approximately 11:30 a.m., the platform suddenly collapsed. The platform "started to disassemble itself" (Ex. G, p. 13). A cable suspending the platform from the Bridge snapped and then a second cable, which caused the platform to cave-in (Ex. G, p. 12). The collapse of the platform caused Decedent and another worker, Jeff LaFontaine, to fall into the water (Ex. G, p. 13; Claimant's Ex. I, p. 11). Mr. Haddad and Mr. Rodriguez did not fall into the water as they were able to grab hold of a beam (Ex. G, pp. 13-14; Claimant's Ex. I, pp. 10-11).
When Decedent fell into the water, he began thrashing around, "struggling" and "kind of like swimming" (Ex. G., p. 15). Mr. Haddad jumped into the water, trying to help Decedent, but Decedent kept going under the water, sometimes taking Mr. Haddad with him (id., pp. 15-16). Mr. Haddad was trying to hold Decedent up until a boat came or a lifeline was thrown. Decedent submerged and reappeared several times (Claimant's Ex. I, pp. 12-13). However, Mr. Haddad had to let Decedent go because he was too heavy and the water was too cold (Ex. G, p. 16). Decedent then went under the water and drowned (id., pp. 20-23; Claimant's Ex. I, p. 30).
There is no dispute that, at the time the platform collapsed, Decedent was wearing a safety harness and lanyard, but he was not "tied-off" (see Claimant's Ex. E, pp. 44, 53, 72; Claimant's Ex. I, pp. 8-9; Ex. G, p. 33).
Gregory Athenian, the Quality Control Inspector for Bruckel on the Bridge project, submitted an affidavit in support of Defendant's Motion (Defendant's Ex. U). Mr. Athenian states that he is familiar with Bruckel's Health & Safety Program for the subject project, which states that, during the "erection, modification and dismantling of the scaffolding platform, workers at the leading edge outside the edges will be required to remain tied-off" (id., ¶ 10; see Defendant's Ex. J [Health & Safety Program], p. 1, § 1.2, ¶ 3; see also p. 41, § 16.0, ¶ 1; p. 44, § 17.1.3, ¶ 1). He asserts that, "[w]hen dismantling the platform, workers are always at a leading and outside edge because the pieces of metal sheeting that comprise the deck are being removed, exposing the worker to the risk of falling to the water below. Basically, the floor is continuously being removed as the work progresses while the workers are still on the platform, so all workers must be tied[-]off. This is different from when the decking is fully erected and contained because a tarp exists over the sides of the decking so exposure to falling off the deck does not exist. By contract, while working in the center of the decking when the decking is being dismantled, a worker must be tied[-]off because the floor is disappearing with each section of metal sheeting that is removed" (Defendant's Ex. U, ¶ 10).
Mr. Athenian further states:
11. The Health & Safety Program called for safety cables to allow workers to tie off (See [Defendant's Ex. J, p.] 41, section 16.1). Those cables were present on the day of the incident, one on each side of the bridge. A worker standing on the edge of the platform could tie off using a safety cable. A worker in the center of the decking could use the bridge's beams to tie off to by using a yo-yo/retractable or a beam clamp. Cables were also present for employees to use to help facilitate tying off.
12. On the day of the incident, there [were] plenty of safety devices available and places to tie off to, both of which [Decedent] was well aware of. Had [Decedent] followed instruction and the training he was provided by tying off then the subject loss would not have occurred. If [Decedent] was in the center of the decking, all he had to do was tie off to one of the bridge's beams by using a yo-yo/retractable or by attaching a beam clamp. Beam clamps were on the decking the day of the incident and also available in the box truck. All [Decedent] had to do was get a clamp, attach it to the beam and then tie off.
(Defendant's Ex. U, ¶¶ 11, 12).
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
It is Defendant's contention that Claimant's Labor Law § 240(1) cause of action should be dismissed because Decedent was the sole proximate cause of the incident as he was a recalcitrant worker (Gallagher v New York Post, 14 NY3d 83 [2010]).
Claimant, on the other hand, asserts that the collapse of the platform upon which Decedent and his coworkers were working, in and of itself, establishes that the platform was not good enough to afford the workers proper protection pursuant to Labor Law § 240(1) (Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]; Stewart v Ferguson, 164 NY 553 [1900]).
Section 240(1) of the Labor Law imposes a duty upon all contractors and property owners and their agents:
[I]n the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure [to] furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
"Labor Law § 240(1) requires that contractors and owners provide adequate safety devices to protect workers against elevation-related safety risks" (Davis v Wyeth Pharms., Inc., 86 AD3d 907, 908 [3d Dept 2011]). It covers only those special risks, however, that are "associated with elevation-related hazards" and not "any and all perils that may be connected in some tangential way with the effects of gravity" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [emphasis in original]; see Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The "single decisive question" in analyzing Labor Law § 240(1) claims is whether the claimant's "injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]).
It is settled that Labor Law § 240(1) must be construed liberally, the duty is non-delegable, and absolute liability is imposed for its breach, regardless of any negligence on the part of the injured worker (Ross v Curtis-Palmer Hydro-Elec. Co., supra at 500; Rocovich v Consolidated Edison Co., supra at 513). At the same time, a defendant upon whom that duty is imposed is not thereby rendered an insurer (Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 286). Thus, "[n]ot every worker who falls at a construction site, and not any object that falls on a worker, gives rise to the extraordinary protections of Labor Law § 240(1)" (Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 288, quoting Narducci v Manhasset Bay Assoc., 96 NY2d 259, 267 [2001]). Defendant will not be liable if there is no evidence of a statutory violation and Claimant's own negligence is the sole factor in the events that resulted in his injury (Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 290).
The Court will first address Claimant's Cross-Motion. "A prima facie case for summary judgment of Labor Law § 240(1) liability is established when a claimant produces evidence that 'the statute was violated and that the violation proximately caused his [or her] injury' " (Portes v New York State Thruway Auth., 112 AD3d 1049, 1050 [3d Dept 2013], lv denied 22 NY3d 1167 [2017], quoting Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; see Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 287). "A violation occurs where a scaffold or elevated platform is inadequate in and of itself to protect workers against the elevation-related hazards encountered while assembling or dismantling that device, and it is the only safety device supplied or any additional safety device is also inadequate" (Cody v State of New York, 52 AD3d 930, 931 [3d Dept 2008]; see Meyers v State of New York, 30 AD3d 927, 928 [3d Dept 2006], lv denied 7 NY3d 864 [2006]; Kyle v City of New York, 268 AD2d 192, 197-198 [1st Dept 2000], lv denied 97 NY2d 608 [2002]). "In addition, where a violation of Labor Law § 240(1) serves as a proximate cause of the injury, then the worker's own conduct, even if negligent, cannot be deemed solely to blame for it" (Cody v State of New York, supra; see Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 290; Morin v Machnick Bldrs., 4 AD3d 668, 670 [3d Dept 2004], lv denied 36 NY2d 642 [1975]).
Here, it is not disputed that Decedent was working on the platform at the time it collapsed and that the platform was acting as a scaffold within the meaning of Labor Law § 240. As stated by the Appellate Division, Third Department in Rocha v State of New York (45 AD2d 633, 635 [3d Dept 1974]):
A scaffold has been defined in the Industrial Code as "a temporary elevated working platform and its supporting structure including all components". (12 NYCRR 23-1.4 [b], [45].) The courts have described a platform as a temporary structure of material, timber or board, designed for various purposes, mainly for supporting a [worker] in his [or her] work and the materials used by him [or her]. (Caddy v Interborough R.T. Co., 195 NY 415 [1909].)
It is clear to the Court that the platform in this case was an elevated temporary structure and that Decedent and others were directed to perform work on it. Thus, the Court concludes it was the functional equivalent of a scaffold (see Beard v State of New York, 25 AD3d 989, 991 [3d Dept 2006]; Craft v Clark Trading Corp., 257 AD2d 886, 888 [3d Dept 1999]). Moreover, "Labor Law § 240(1) applies even in those situations when the scaffold which is alleged to have failed was in the process of being dismantled or constructed" (Kyle v City of New York, supra at 197; see Cody v State of New York, supra at 931). The Court further finds and concludes that Claimant demonstrated a prima facie showing of entitlement to judgment upon the collapse of the platform and, therefore, the burden shifted to Defendant to raise a question of fact about whether there was a statutory violation and whether Decedent's own acts or omissions were the sole proximate cause of his accident (see Gallagher v New York Post, supra at 88; Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 290).
Defendant asserts that Decedent was a recalcitrant worker, in that, while he was wearing a safety harness and lanyard at the time the Bridge collapsed, he was not "tied-off" as required. To establish the recalcitrant worker defense, Defendant "must demonstrate that a worker deliberately refused to employ safety devices available, visible and in place" at the work site (Kouros v State of New York, 288 AD2d 566, 567 [3d Dept 2001]; see Gordon v Eastern Ry. Supply, 82 NY2d 555, 562-563 [1993]; Powers v Del Zotto & Son Bldrs., 266 AD2d 668, 669 [3d Dept 1999]).
Liability pursuant to Labor Law § 240(1) does not attach when safety devices are readily available at the work site and a claimant knows that he or she is expected to use them but, for no good reason, chooses not to and such omission is the sole proximate cause of the accident (Gallagher v New York Post, supra; Fabiano v State of New York, 123 AD3d 1262, 1263 [3d Dept 2014, lv dismissed 25 NY3d 957 [2015]; Portes v New York State Thruway Auth., supra; Silvia v Bow Tie Partners, LLC, 77 AD3d 1143, 1144 [3d Dept 2010]). "However, where a device intended to support a worker at an elevated height fails and that failure is a proximate cause of the accident, it is conceptually impossible for a statutory violation (which serves as a proximate cause for a [claimant's] injury) to occupy the same ground as a [claimant's] sole proximate cause for the injury" (Fabiano v State of New York, supra; Portes v New York State Thruway Auth., supra at 1051, quoting Blake v Neighborhood Hous. Servs. of N.Y. City, supra at 290.
Decedent was standing on the platform, which itself was a safety device erected for the work. The platform collapsed, causing Decedent to fall into the water and drown. Defendant submitted proof that Decedent, while wearing a safety harness and lanyard, was not tied-off to another safety device, when another safety device, i.e., the platform, collapsed (see Kouros v State, supra). "Claimant, as a matter of law, cannot be deemed to be a recalcitrant worker solely because he was not attached when the other safety device, i.e., the scaffold, collapsed" (id.). While the action of Decedent in failing to tie-off could be considered comparative or contributory negligence, such a defense is not available to a Labor Law § 240(1) cause of action (Fabiano v State of New York, supra; Portes v New York State Thruway Auth., supra; Kouros v State of New York, supra).
The Court concludes that Defendant's submission fails to demonstrate that Decedent's conduct was the sole proximate cause of the accident or that any material questions of fact exist and, thus, is insufficient to overcome Claimant's prima facie showing of entitlement to judgment in her favor regarding her Labor Law § 240(1) cause of action. The platform having collapsed, Decedent cannot be the sole proximate cause of the accident and any failure on his part to tie-off was, at most, evidence of comparative negligence, which defense is not available to Defendant in this instance. Therefore, based upon the foregoing, the Claimant's Motion for summary judgment as to the Labor Law § 240(1) cause of action is granted. Defendant's Motion to dismiss the Labor Law § 240(1) cause of action is denied. As set forth above, the Court finds that Defendant failed to establish that Decedent's own conduct was the sole proximate cause of the accident.
As the Court has found that Claimant has established liability pursuant to Labor Law § 240(1), the Court concludes that it is not necessary to address the Motion and Cross-Motion as to the Labor Law § 241(6) cause of action.
Finally, the Court notes that the parties have spent a great deal of time and effort addressing the issue of the report and amended report of Claimant's expert, Richard R. Pikul. The Court has not considered Mr. Pikul's report or amended report in reaching its determination of the Motion and Cross-Motion and will not address the issues raised by the parties regarding Defendant's objection to Mr. Pikul's amended report.
October 22, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion and Claimant's Cross-Motion for summary judgment: Papers Numbered Defendant's Notice of Motion, Affidavit in Support and Exhibits Attached, Memorandum of Law 1 Claimant's Notice of Cross-Motion, Affidavit in Support & in Opposition to Defendant's Motion and Exhibits Attached, Memorandum of Law 2 Defendant's Reply Affidavit and Affidavit in Opposition, Memorandum of Law in Reply and Opposition to the Cross-Motion 3 Claimant's Reply Affidavit in Further Support of Cross-Motion, Affidavit and Exhibits Attached, Memorandum of Law 4 Letter from Defendant's Counsel dated June 28, 2018 5 Letter from Claimant's Counsel dated July 3, 2018 6 Filed Papers: Claim, Answer