New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2000-004-541, Claim No. 101077, Motion No. M-62206


Synopsis



Case Information

UID:
2000-004-541
Claimant(s):
RONALD L. SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101077
Motion number(s):
M-62206
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
MODICA & ASSOCIATESBY: Steven V. Modica, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
BY: Smith, Sovik, Kendrick & Sugnet, P.C.Theresa N. McCorry, Esq., of counsel
Third-party defendant's attorney:

Signature date:
December 15, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for partial summary judgment on the issue of liability pursuant to CPLR § 3212


(e).


The following papers are before the Court:


MEMORANDUM-DECISION AND ORDER, Motion No. M-59258,
Hanifin J., filed September 2, 1999 1

Verified Claim, filed September 16, 1999 2

Verified Answer, dated November 30, 1999 3

Notice of Motion, filed August 18, 2000 4


Affidavit of Ronald L. Smith in support of motion, sworn to August 9,
2000 5


Affidavit of Steven V. Modica, Esq., in support of motion, sworn to
August 15, 2000, with attached exhibits 6

Claimant's Memorandum of Law, dated August 15, 2000 7


Affidavit of Theresa N. McCorry, Attorney at Law, in opposition,
sworn to September 13, 2000, with attached exhibits 8

Defendant's Memorandum of Law, dated September 14, 2000 9


Reply Affidavit of Michael J. Morrissey, in support of motion, sworn
to September 19, 2000 10

Claimant's Reply Memorandum of Law, dated September 19, 2000 11



This Claim was late filed by permission. (Paper No. 1)


The verified Claim alleges, in pertinent part:
4. The incident which forms the basis of this Claim occurred on January 24, 1997 in the morning in Building 14 of the Southport Correctional Facility in Pine City, County of Chemung and State of New York.

5. Upon information and belief, at all times herein relevant, the State of New York owned the property and structures which constitute the Southport Correctional Facility.

6. Upon information and belief, at some time prior to January 24, 1997, the State of New York hired the Pike Company ["Pike"] to perform construction and renovation work at the Southport Correctional Facility, including demolishing the inside of Building 14 for conversion to cell blocks.

7. At all times herein relevant, claimant was employed by Pike as a laborer.

8. On January 24, 1997, claimant and a co-worker were assigned to demolish the ceilings and walls in a particular room of Building 14 at the Southport Correctional Facility. The ceiling in the room that they were demolishing was a suspended or "drop" ceiling. It was made of plywood and dry wall with metal grids.

9. Claimant and the co-worker used a "man lift" device to reach the ceiling. This device literally "lifted" them from the concrete floor up about 12 feet to the bottom of the ceiling. They did most of the ceiling demolition while standing in the man lift.

10. Unfortunately, they were not able to demolish the entire ceiling from their position on the man lift. Thus, they climbed off the man lift and onto the suspended ceiling. From that position, they were able to reach and demolish "stubborn" pieces of plywood and dry wall that they could not reach from the man lift.

11. As they stood and worked on the suspended ceiling, claimant heard a noise. The section of plywood and dry wall that they were standing on collapsed and claimant fell down more than 12 feet to the concrete floor below which caused him to sustain and/or aggravate the injuries set forth herein.

***

19. The defendant was negligent in one or more of the following ways:

I. [sic] In failing to provide claimant with a reasonably safe place to work;

ii. In failing to insure that the areas in which the construction work was being performed were so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to claimant in the course of his employment;
***
viii. In failing to furnish, in connection with the erection, repairing, and/or altering of the structure, such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes and other safety devices so constructed, placed and operated, so as to give proper protection to claimant;...

(Paper No. 2)


The Verified Answer sets forth the following relevant affirmative defenses:
AS AND FOR A THIRD, SEPARATE AND COMPLETE DEFENSE TO THE CAUSE OR CAUSES OF ACTION, IF ANY, CONTAINED IN THE VERIFIED CLAIM, IT IS ALLEGED:

11. To the extent that the damages of claimant, if any, were caused or contributed to, in whole or in part, by intervening and superceding causative factors, the claims of claimant against the State of New York should be barred.

***

AS AND FOR A FIFTH, SEPARATE AND COMPLETE DEFENSE TO THE CAUSE OR CAUSES OF ACTION, IF ANY, CONTAINED IN THE VERIFIED CLAIM, IT IS ALLEGED:

13. Upon information and belief, defendant had neither actual nor constructive notice of the defective or dangerous condition referenced in the Verified Claim and as such no liability for claimant's claim exists.

(Paper No. 3)


Claimant avers, in pertinent part:
4. On January 24, 1997, Richard Smith (a laborer and fellow Pike employee) and I were assigned to demolish the ceilings and walls in a particular room of Building 14. The ceiling in the room that we were demolishing was a suspended or "drop" ceiling. It was made of plywood and dry wall with metal grids.

5. Richard and I used a "man lift" device to reach the ceiling. This device literally "lifted" us from the concrete floor up about 12 feet to the bottom of the ceiling. We did most of the ceiling demolition while standing in the man lift.

6. Unfortunately, we were not able to demolish the entire ceiling from our position on the man lift. Thus, we climbed off the man lift and onto the top of the suspended ceiling. From that position, we were able to reach and demolish "stubborn" pieces of plywood and drywall [sic] that we could not reach from the man lift.

7. As Richard and I were standing on the suspended ceiling, I heard a noise. The section of plywood and dry wall that I was standing on collapsed and I fell down more than 12 feet to the concrete floor below. As a result of the fall, I sustained serious physical injuries. Richard was lucky; he was able grab [sic] onto duct work in the ceiling and did not fall when the suspended ceiling collapsed.

***

11. By January 24, 1997, I had worked at the Southport CF project site for a couple of months. During that time, I had performed a substantial amount of demolition work. It was not an [sic] unusual for me or my co-workers to climb off the "man lift" and onto the suspended ceiling to complete the demolition work. Both my Pike co-workers, my supervisors and Southport CF officers saw me numerous times while I was working while standing on the suspended ceiling.

12. I was not provided with scaffolds or other fall protection devices on the day of the accident that would have protected me from the risk associated with demolishing the suspended ceilings.

(Paper No. 5)


What follows are pertinent excerpts from the examination before trial of the Claimant:
Q. When did you first start working for Pike?

A. I believe it was November of ‘96, Fall of ‘96.

Q. Were you primarily employed by Pike Company as a laborer?

A. Yeah.

***

Q. At any point in time did you use any kind of protective or safety equipment?

A. Hard hat, safety glasses, I wore steel-toed shoes and gloves.

Q. Okay. Did you always wear those things?

A. Yes.

Q. Were these things given to you?

A. The hard hat and the safety glasses were furnished.

Q. By whom?

A. Pike.

Q. And the steel-toed shoes is something that you already had?

A. Yes.

Q. Is that something you always wore on construction jobs?

A. Yes.

***

Q. Did you attend any safety meetings?

A. Yes, we did.

Q. How many safety meetings?

A. One per week.

***

Q. Who conducted these safety meetings?

A. It was a piece of paper that every week somebody read it and then we signed it. It was read out loud to all the workers and then you signed it.

Q. Okay. Who would generally read out loud the piece of paper?

A. We basically took turns every week.

Q. The Pike employees?

A. Yes.

Q. Was this safety meeting primarily or solely for Pike Company employees only?

A. Yeah, it was just the Pike employees.

***

Q. What were these pieces of paper, what did they contain?

A. Just different safety procedures with equipment or tools or cords. It ranged from a lot of things. Stuff that OSHA would come on the job and maybe - - you know, you have to keep certain stuff safety-wise. It's just safety procedures.

***

Q. Okay. Did they ever discuss general safety as far as demolition work is concerned at this project?

A. Slightly. It wasn't a sit down, you know, if they walked by and thought you should do it another way they might say try this or do it this way, but it was basically - -

***

Q. Demolition of mostly walls and some ceilings?

A. Right.

Q. Okay. And that's when the accident occurred?

A. Yes.

Q. Okay. When you were tearing down some ceilings?

A. Yes.

***

Q. What did you first do that day?

A. I think we finished one room, we tore down I believe - - we finished up tearing a block wall down.

Q. Okay.

A. Would have done the cleanup.

Q. Okay.

A. And then we went into the following room to start that.

Q. The next room is where the accident occurred?

A. Yes.

***

Q. Had you ever torn down ceilings previous to this ceiling?

A. Yes.

Q. How many ceilings had you torn down at this project previous to this one?

A. Numerous. This was actually one of the last ones to be demolitioned [sic] I think.

Q. Were all the ceilings that you had torn down similar?

A. Similar.

Q. Can you explain these ceilings to me?

A. They were made up of - - they were suspended or drop ceilings, they hung by wires.

Q. Do you know what kind of wires?

A. Just a heavy gauge wire that suspended ceilings are made up of.

Q. Had you ever seen these kind of suspended ceilings before this project?

A. Yes.

Q. Had you ever worked on similar ceilings previous to this project?

A. Yes.

Q. Have you worked on demolishing ceilings like this before this project?

A. Yes.

***

Q. Okay. Other than it being hung by heavy gauged wires, can you further describe these ceilings to me?

A. It was made up of drywall.

Q. Okay.

A. Plywood.

Q. Drywall and plywood?

A. And metal, metal supports and grids.

Q. Anything else?

A. No.

Q. Where were these metal supports or grids? A. They were actually what the wire was attached to and then the plywood and drywall were attached to the metal.

Q. To the metal supports?

A. Yeah.

Q. How were the metal supports attached to the drywall and plywood?

A. Screws.

Q. Anything else?

A. No, I don't believe so.

Q. You said that the heavy gauge wires were also attached to the metal supports. Can you tell me how they were attached to the metal supports?

A. I believe they were wrapped around them and then wound back up on the support coming down. The wire went underneath the metal and then it went back up and wrapped it around the metal support coming down and that was attached to the metal construction up above it which form your roof.

***

Q. How far up were the suspended or drop ceilings from the ground?

A. Approximately twelve feet.

Q. In order for you to gain access to the suspended ceilings, how did you and your brother get up there?

A. A Manlift [sic].

***

Q. Can you tell me how that works?

A. It's a - - it's on four wheels and you climb up inside it, it's got railing all the way around it to keep you in.

Q. On the top of the manlift?

A. On the side of it, four sides. You're enclosed in it and it's - -

Q. Railings to enclose you?

A. Yes.

Q. There is a platform?

A. That you stand on.

Q. Is there some sort of an operational box?

A. Yes.

***

Q. Since it was a fresh ceiling - I don't know how else to describe it - how would you first start demolishing it?

MR. MODICA: Object to the form. You can answer it if you understand.

THE WITNESS: There is access panels in the ceilings.

BY: MS. McCORRY:

Q. How big were those access panels in the ceiling?

A. Approximately - - they were all different. They were just big enough to - - it was a door that folded down just so workers can get up in there and fix electrical or basically to stick your head up and observe what's up in them is all they were. Small.

***

Q. Do you recall what you first did in the room where the ceiling was?

A. Yes. We went to that access panel.

Q. How many access panels were in that room?

A. I - - there is usually only one or two.

Q. Okay. Did you first use the manlift device to get up to the access paneling?

A. Yes.

Q. Did you have to go straight up?

A. Yes.

***

Q. Okay. And what did you do once you got to the access panel, you or Rick?

A. I believe we started by removing the access paneling.

Q. How did you remove the access panel?

A. Sawzall, hammer.

Q. Would you cut away around the access paneling?

A. We just literally cut it in different places so we can collapse it and take it out.

Q. What was that access paneling made of?

A. Metal.

Q. Then what happened?

A. That's where we started the demolition on that ceiling.

Q. Around the access paneling?

A. Yeah, because we had a hole started so that's where we proceeded to tear it down.

***

Q. Okay. What did you first do after removing the access panel, you and Rick?

A. We started trying to take down sections of the ceiling.

Q. Then what?

A. That particular ceiling was lapped a lot - - it was lapped differently than the previous ones we done. The plywood and drywall were lapped opposite ways and we - - plywood and drywall came in a four-by-eight sheet so we were trying to take down four-by-eight sheets, but this was lapped totally the opposite way so they weren't coming down in four-by-eight sheets.

Q. How were they coming down?

A. Not at all really. They were - - just wasn't coming down good.

Q. So what were you doing specifically?

A. Well, after we tried taking them down in sections and it wasn't working we climbed up into the ceiling.

***

Q. Then what?

A. We proceeded to try and loosen some stubborn pieces of the drywall, the metal and the drywall - - plywood.

***

Q. I see. Okay. So you and Rick were completely off the manlift device?

A. Yes.

Q. On the ceiling?

A. Yes.

Q. When you got on to the ceiling what exactly did you step on?

A. The ceiling.

Q. The drywall and plywood?

A. Yes.

Q. How about the metal supports?

A. Yeah, that was everything, they were all attached to each other.

Q. Okay. So at times you were actually stepping on just drywall and plywood?

A. The metal was throughout it all. It was the strength of the ceiling I believe.

Q. Could you actually see the metal supports?

A. Yes, when you were up on the ceiling.

***

Q. Did they provide you with any other safety gear?

A. No.

Q. Any safety harnesses?

A. Not that I can recall, no.

Q. Or safety lines of that sort - -

A. No.

***

Q. Was there ever any discussion at the safety meetings about use of safety harnesses or safety lines of that sort?

A. Not that I can recall.

***

Q. Now, previous to the time of the accident had you ever had to climb on to the ceilings off the manlift in order to demolish the ceilings?

A. All ceilings.

Q. So you have done that before, walked on to the ceilings?

A. All of them prior to that, yes.

Q. So this wasn't the first time?

A. No.

Q. With every single ceiling on this project did you have to get off the manlift and walk on the ceiling?

A. Yes, we did.

Q. Why is that?

A. Just to get the stubborn pieces, the pieces we couldn't reach from the manlift.

***

Q. So when you were removing the ceiling by four-by-eight sections - -

A. Trying to.

Q. - - trying to, then after you were done doing that you would cut the heavy gauge wires; am I correct?

A. Once we had a section freed up we wanted to come down you would be in the manlift and we would take longer pieces of conduit and put on the handles of the bolt cutters and reach up in there so we weren't near it and snip them so the piece would fall down.

Q. So you wouldn't actually cut the gauge wires while you were on the ceiling?

A. No.

Q. You would always do it while you were on the manlift?

A. Yeah.

Q. What did you use?

A. Bolt cutters.

***

Q. ...Tell me what happened immediately before the fall.

A. ...We were both trying to just free up some of the stubborn pieces and we both heard a loud noise and by the time I realized it, I realized that a section - - this whole section of ceiling was starting to collapse, it was coming down, that we were standing on and I tried running to the end where it wasn't falling, but it was moving quicker than I could... ***

Q. Okay. Do you have any idea why this ceiling collapsed?

A. No, I don't.

***

Q. Prior to working for Pike Company, when you had the opportunity to take down suspended ceilings were there some times that you actually walked on to the suspended ceilings?

A. Most are not constructed quite that way. That's totally - - I don't understand why there is plywood and drywall in that one to be honest with you.

Q. Is it my understanding that this is the first project where you actually had to walk on to a suspended ceiling in order to take it down?

A. As much as I can remember, yeah.

Q. Okay. So you've always stayed on the manlift - -

A. Yeah.

Q. - - while taking down suspended ceilings previous to working for Pike Company?

A. Yes.

(Paper No. 4, Exhibit E)


What follows are pertinent excerpts from the examination before trial of Barry J. Capell, submitted by Claimant in support of the motion:
Q. What is the current position that you hold with the State?

A. Plant superintendent. Plant superintendent.

Q. Is that for solely the Southport Correctional Facility?

A. Yes.

Q. How long have you held that position?

A. Since June of 1994.

***

Q. Mr. Capell, did there come a time when you became involved in a construction project at the Southport Correctional Facility in late 1996, early 1997?

A. Yes.

Q. Tell me the first time that you became involved.

A. My involvement was from the very conception of the project where we were planning on changing a vocational building that was unused into a housing unit.

***

Q. What were your responsibilities in connection with this particular project?

A. Well, I do many things. I'm a liaison between the facility and OGS and the contractor so that if there is a question about whether they can do something or can't do something, a lot of times I'm the first person they ask. If it's within my power I can say yes or no or take it up to the next level.

Another thing that I have to do on all projects is look out for health and safety concerns. If there is a problem with those my duties are to go to OGS, notify them of what I see is wrong and they go to the contractor. I don't deal directly with the contractor unless it's an emergency situation. I make sure that the officers are there with the construction people in the morning and if there is any problem they call me first. So usually I'm the first line of defense.

***

Q. I think you mentioned earlier that you weren't necessarily the person who had most direct contact with the contractors, but do you participate in meetings between OGS and the contractors?

A. Yes.

***

Q. ...Was there also a concern about health and safety issues for the employees of the contractors that were working inside the facility?

A. Not in my concern, no.

Q. Was that to your knowledge the concern or responsibility of anyone?

A. I rely on the contractor to have his own health and safety things in place. Most reputable contractors do.

Q. As you sit here today, do you have any specific recollection about safety issues concerning Pike Construction Company in connection with this project?

A. No.

Q. Did you during the course of your involvement with the project participate in any safety meetings with employees of Pike Construction?

A. No.

***

Q. Did you during the course of the project ever personally observe Pike or any Pike employee performing demolition work?

A. Yes.

Q. Tell me what you saw and when you saw it, if you remember.

A. Just taking the ceilings down, using the sledgehammers to break up the floor, the walls, they had a pretty nifty backhoe with a great big wrecker on it and it just broke the floor into pieces. Everything was gutted from the inside of the building with the exception of the outside walls and the ceiling.

Q. When you say the ceiling, you're not talking about the suspended ceiling?

A. The roof.

***

Q. Did you observe at any point during the demolition process Mr. Smith or any Pike employee outside the manlift standing on the suspended ceilings?

A. I don't recall ever seeing that, no.

***

Q. Roughly how far were you from the place of the accident at the time you heard the crash?

A. Thirty yards.

***

Q. And then I believe it's your testimony that you and Mr. Vann proceeded directly to this room and you saw Mr. Smith on the ground. What did you observe about Mr. Smith at the time you first saw him?

A. He was laying on his back on the ground or - - actually on the plywood that was laying on the ground.

***

Q. Best you can recall who was the first person in that room who told you what happened?

A. I think it was Officer Morrissey. I'm just guessing. It was one of the escort officers said that he was up working on the ceiling and it came down and that he hurt his heels.

***

Q. You heard Mr. Smith's testimony earlier about him and his brother leaving the manlift and standing on the suspended ceiling to do some of the demolition work; is that correct?

A. Uhm-uhm

Q. Was there any discussion about whether that was an appropriate thing to do after his accident?

A. I do recall a conversation or two where that did not seem appropriate to stand on the ceiling to bring it down, but just seems odd to me.

Q. Did anyone from the State instruct Pike not to perform their work that way after the accident?

A. Not that I'm aware of.

***

Q. To your knowledge were there any concerns expressed about the safety practices of Pike prior to the accident?

A. I have no knowledge of any.

Q. Is that something that would have been directed to you or to OGS or perhaps to both?

A. I wouldn't be involved with that.

Q. Who, if anyone, would be?

A. That would probably go strictly with Pike. Sometimes, like I said, not in this particular case, but if there is something special going on that say a contractor is going to use a special safety device or something OGS will let me know so I can go and look at it and physically see how it works, but that's just for my title and isn't necessarily for the job. I don't recall anything like that in this.

***

Q. You heard testimony earlier by Mr. Smith that the suspended ceiling was roughly twelve feet from the ground or the floor.

A. Uhm-uhm.

Q. Do you agree with that or do you feel - -

A. Oh, definitely was at least twelve.

(Paper No. 4, Exhibit F)


State's counsel, in her affidavit in opposition, avers, in pertinent part:
3. ...In performing the demolition work, claimant was provided with certain tools, safety equipment and gear by Pike Company. Among those things was a manlift, an electric piece of heavy-duty operating equipment on four wheels which lifted you straight up, reverse or forward while standing on a two-man platform equipped with surrounding safety rails. Claimant operated the manlift to reach up to and demolish the twelve feet high suspended ceilings. Although they were provided with a manlift, claimant and his brother unilaterally decided to climb off the manlift and up onto the ceiling. While walking and standing on the ceiling, they were trying to remove the stubborn pieces of ceiling when a large portion of the ceiling collapsed to the ground along with the claimant.

***

11. Because the suspended ceiling was twelve feet from the ground, they used a manlift device, provided by Pike, to reach up to and demolish the ceiling (see claimant's E.T. transcript, pp. 53-54). The manlift was an electric piece of heavy-duty operating equipment on four wheels which lifted you straight up, reverse or forward while standing on a two-man platform equipped with surrounding safety rails (see claimant's E.T. transcript, pp 54-55 and 57-58).

12. Instead of remaining on the manlift in demolishing the ceilings, claimant testified that he climbed off the manlift onto all the suspended ceilings, including the day he fell, in order to demolish the same because they were unable to reach the stubborn pieces of ceiling from the manlift along (see claimant's E.T. transcript, pp. 67-68). Prior to this project, he could not recall ever having walked onto a ceiling off the manlift in order to demolish it (see claimant's E.T. transcript, pp 137-138).

***

14. As supported by the affidavit of RALPH SCHULTZ, the Pike job superintendent who supervised claimant's work (attached hereto and made a part hereof as Exhibit "B"), the claimant was provided with the safety operating equipment known as a manlift to reach up to and demolish the suspended ceilings. As testified, claimant did in fact use the manlift each and every time he demolished a ceiling. Instead of remaining on the manlift, he also climbed off the manlift and onto the ceiling each and every time, including the day he fell. However, Mr. Schultz never instructed, directed or told the claimant or the other laborers to climb off the manlift and walk onto the suspended ceilings to demolish them. He was not even aware nor did he ever see or observe any of the Pike workers getting off the manlift and up onto the ceiling.

15. This type of unsafe activity, which was not condoned by the State nor Pike in any way, shape or manner, was something that claimant and the other two laborers had unilaterally decided to do on their own....There were safety rails surrounding the two-man platform on the manlift to protect a worker from falling off the manlift at an elevated height (see Exhibit "A", photographs marked as deposition exhibits "3" and "12"). However, claimant only used it part of the time in demolishing the ceiling. That is, he was recalcitrant in not using the manlift by his act of climbing off the manlift and onto the ceiling.

***

17. Labor Law §240 (1) (a/k/a "scaffolding law") imposes absolute liability on the owner and contractor in the demolition of a building when the owner and contractor fail to furnish or erect 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. However, it is well settled law that while landowners and contractors do not have a duty under the scaffolding law to supervise employees to insure that they use the safety equipment supplied, they do have an absolute, nondelegable duty to actually provide adequate safety devices, and only an injured worker's deliberate refusal to use available and visible safety devices in place at the work station will raise a question of fact on the recalcitrant worker defense. Since there is a question of fact, plaintiff's [sic] motion for partial summary judgment on liability only as to the Labor Law §240(1) cause of action should be denied.

(Paper No. 8)


Ralph Schultz in his affidavit submitted in opposition avers, in pertinent part:
1. I am a job superintendent for Pike Company and have been employed by Pike Company for the past thirty four years. This affidavit is based on my personal knowledge.

***

4. I recall the accident involving Ronald Smith and his brother, when they were demolishing or removing a suspended/drop ceiling.

5. I do not recall ever giving Ronald Smith or the other laborers any instructions or directions on how to do ceiling demolition work nor did I ever tell them to get off the manlift device and walk onto the suspended ceilings in order to demolish them. Even more so, I do not remember ever seeing, observing or being aware that the Pike laborers were getting off the manlift and walking onto the suspended ceilings.

(Paper No. 8, Exhibit A)


Michael J. Morrissey, in a reply affidavit submitted in support of Claimant's motion, avers in pertinent part:
1. My name is Michael J. Morrissey. I live at 369 Lyon Street in Elmira, New York. For many years prior to 1998, I worked as a Corrections Officer for the State of New York. I retired from that position in 1998.

***

4. In late January of 1997, I was working when a laborer fell through a suspended ceiling that he and a co-worker were demolishing. I was not present in the room where the accident occurred. I was in the area, however, and came into the room soon after the accident. I learned that the name of the injured laborer was Ron Smith.

5. I learned from my co-workers that the laborer fell because a portion of the suspended ceiling on which he was standing collapsed. Before this accident, I had the opportunity to observe how Ron Smith and other Pike employees demolished the suspended ceilings at the Southport CF.

6. The suspended ceilings were made of plywood and dry wall with metal grids. At various times I saw Pike employees use a manlift to reach the ceiling. This device literally lifted them from the concrete floor up about 12 feet to the bottom of the ceiling. They did most of the ceiling demolition while standing in the manlift.

7. I understood that the Pike employees were unable to demolish the entire ceiling from their position on the manlift. Thus, I saw them climb off the manlift and onto the suspended ceiling. From that position, they demolished the remaining parts of the suspended ceiling. I saw Pike employees in this position several times before the accident. They made no effort to conceal how they were performing this work.

(Paper No. 10)


One argument presented in the defendant's post trial memorandum is: "I. CLAIMANT'S ACT OF CLIMBING OFF THE MANLIFT AND ONTO THE CEILING EQUATES TO PURPOSEFUL REFUSAL TO USE THE FURNISHED SAFETY DEVICES AND THUS, HIS RECALCITRANCE RAISES A QUESTION OF FACT".


In support of this argument, the memorandum continues:
Here, the claimant was actually provided with a safety device to protect him from an elevation-related risk while performing ceiling demolition work - a manlift. It is a mechanical piece of heavy-duty operating equipment on four wheels which lifts a person straight up, reverse or forward while standing on a two-man platform equipped with safety rails. It afforded workers access to the ceiling. The mechanical manlift provided proper protection - it did not move, collapse or otherwise fail to perform its function of supporting the worker and his materials. That is, it was safe and free of defects. This safety device was not only made available but directly furnished to the claimant but he was recalcitrant in not using it.

Claimant does not make any claims that the manlift was defective or unsafe in any way. Rather, he claims that defendant failed to provide him with any safety devices while demolishing ceilings, a task that could not be fully accomplished from the manlift due to the stubborn pieces. The flaw in that argument is that defendant and/or Pike could not have envisioned or anticipated that the Pike laborers would actually climb off the manlift and onto the ceiling in order to demolish it. This was not the proper and intended use of a manlift. Furthermore, where the ceiling which collapsed was not intended as a place of work but consisted of the work itself, it is not a "scaffold" within the meaning of Labor Law §240 (1). Instead, he should have notified his supervisor of the unique problems in tearing down the suspended ceilings, so that an alternative method could have been devised. Claimant's act of climbing off the manlift and onto the ceiling equates to purposeful refusal to use the furnished safety devices. Thus, his recalcitrance raises a question of fact defeating his motion for partial summary judgment on liability.

(Paper No. 9 [emphasis in original])


Section 240 of the Labor Law, which is entitled "Scaffolding and other devices for use of employees", provides in pertinent part:
1. All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall 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 shall be so constructed, placed and operated as to give proper protection to a person so employed....

As can be seen from the foregoing, there is no issue of fact with regard to how the subject accident occurred, nor is the argument made that Labor Law § 240 does not apply to this building demolition project.[1]


Basically, the State's position is that Claimant's motion for summary judgment should be denied because there is an issue of fact with regard to whether Claimant was a recalcitrant worker. That is, that Claimant's "PURPOSEFUL REFUSAL" to use a safety device raises an issue of fact as to his recalcitrance. On the subject of recalcitrance, this Court has had the following to say:
The Third Department in addressing the subject of recalcitrant worker describes such a worker as one who "deliberately refused" to use available safety devices (see, Jastrzebski v North Shore School District, 223 AD2d 677, 678, affd 88 NY2d 946; Kaffke v New York State Electric & Gas, 257 AD2d 840, 841) and the Fourth Department noted a lack of evidence that a worker "purposely refused" to use safety equipment provided in concluding that a worker was not recalcitrant, as a matter of law. (see, Van Alstyne v New York State Thruway Authority, 244 AD2d 978, 979) Since it is difficult to imagine a factual scenario wherein a refusal, as such, could be anything other than deliberate and purposeful, one must weigh the significance of these semantic anomalies. In this Court's view, they are meant to emphasize the need for a finding of contemporaneous, cognizant rejection of an immediately available safety device at the time of the accident.

(Kouros v State of New York, Claim No. 98994, Motion Nos. M-60503 and CM-60664, Decision and Order, Hanifin, J., filed June 22, 2000)


The Court finds that the Claimant was not a recalcitrant worker as a matter of law, since it is unequivocally clear that he did not "deliberately" or "purposely" refuse to use any safety equipment that was provided to him. There is absolutely nothing in the papers before the Court to suggest that the Claimant ever refused to use a safety device or, with regard to recalcitrance, that he was ever told not to go onto the drop ceiling. To the contrary, the actual defense proffered here is not that Claimant disobeyed an order or orders to stay off the drop ceiling, but, rather, that "defendant and/or Pike could not have envisioned or anticipated that [Claimant] would actually climb off the manlift and onto the ceiling in order to demolish it'. (supra, p 18) Thus, the defense proffered here, although there appears to be some confusion with regard to the matter, is that Claimant's conduct in climbing onto the drop ceiling was unforeseen and a sole superseding proximate cause of the accident.


The contributory negligence or culpable conduct of an injured worker is not a defense to a Section 240 (1) Claim. (Stolt v General Foods Corp., 81 NY2d 918, 920) Be that as it may, the Court finds that there are bona fide issues of fact which mandate denial of this motion. They are (1) whether Claimant had climbed from the manlift onto a suspended drop ceiling in the process of demolishing the ceilings and walls on the subject project at any time prior to the accident which gives rise to this Claim and, (2) if he did, whether any employees of his employer (other than the other employee on the ceiling) or employees of the State were aware of that fact. Claimant testified that he had done so on prior occasions, but only on the subject project (supra, p 11) and a former employee of the State avers that he saw Pike employees climb onto "the suspended ceiling" prior to Claimant's accident. (supra, p 17) On the other hand, Claimant's superintendent avers that he had never seen Claimant or others do it and was unaware that it had been done, (supra, p 16) as was the case with the Southport plant superintendent. (supra, p 13) Viewing these issues of fact, as we must in a light most favorable to the defendant on this motion, mandates that this motion be denied.


"Undeniably the distinction between the situation when a worker's conduct is the sole proximate cause of an accident, and when it is merely a contributing factor, can be difficult to discern under a given set of facts (see, Weininger v Hagendorn & Co., 91 NY2d 958; Ossorio v Forest Hills S. Owners, 251 AD2d 475)." Smizaski v 784 Park Ave. Realty, Inc. 264 AD2d 364, 366)


The "given set of facts" for purposes of this motion is the defendant's. Assuming, for purposes of this motion that Capell, the Southport plant superintendent did not recall ever seeing Claimant or other Pike employees standing on the suspension ceiling (see supra, p 13) and that Schultz, Pike's job superintendent neither saw nor was aware of Pike employees "walking onto the suspended ceilings" (p 16) then arguably Claimant's conduct "was not foreseeable in the normal course of events resulting from defendants' alleged negligence". (Egan v A.J. Construction Corp., 94 NY2d 839, 841; cf., Harrington v State of New York, 200 WL 174485 [NYAD 3 Dept.])


In light of the foregoing, it is ORDERED that Motion No. M-62206 is DENIED.


ENTER.


December 15, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims



[1]
State's counsel's argument that the place of work, the ceiling, was not a scaffold within the meaning of Labor Law § 240 (1) simply ignores the fact that there are numerous safety devices enumerated and "other devices" not enumerated which § 240 (1) can call into play.