New York State Court of Claims

New York State Court of Claims

WEISER v. THE STATE OF NEW YORK, #2000-009-433, Claim No. 101333, Motion Nos. M-61755, CM-62026


Synopsis


Claimants' motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1) was granted, and defendant's cross-motion seeking summary judgment dismissing the claim was denied.

Case Information

UID:
2000-009-433
Claimant(s):
JAMES M. WEISER and DANIELLA WEISER
Claimant short name:
WEISER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101333
Motion number(s):
M-61755
Cross-motion number(s):
CM-62026
Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
MORAN & KUFTA, P.C.
BY: Mark J. Valerio, Esq.,Of Counsel.
Defendant's attorney:
LAW OFFICES OF DAVID B. MAHONEY
BY: James C. Grosso, Esq.,Of Counsel.
Third-party defendant's attorney:

Signature date:
September 27, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimants have brought a motion (M-61755) seeking summary judgment on the issue of liability pursuant to Labor Law § 240(1). Defendant has responded with a cross-motion (CM-62026) not only in opposition to claimants' motion, but also seeking summary judgment dismissing the claim.

The following papers were considered by the Court in connection with both the motion and cross-motion:
Notice of Motion, Attorney's Affirmation, with Exhibits 1,2


Affidavit of James M. Weiser, with Exhibit 3


Memorandum of Law (In Support of Motion No. M-61755) 4

Notice of Cross-Motion, Affirmation of James C. Grosso, Esq., Affidavit of Joshua Westervelt, Affidavit of George Goodway, with Exhibits 5,6,7,8


Memorandum of Law (In Support of Cross-Motion No. CM-62026) 9


Attorney's Reply Affirmation of Mark J. Valerio, Esq. 10

There is no dispute as to the facts surrounding this claim. On June 25, 1999, claimant[1] was employed as a carpenter by The Pike Co., Inc., which had been hired by the State to perform work in the construction of the Seneca Correctional Facility in the Town of Romulus, Seneca County.

On that day, claimant was assisting in the removal of steel forms from a wall. These steel panels, approximately 12 ½ feet tall and 10 to 12 feet wide, were used to form concrete walls, and then were removed once the concrete had cured. They were joined together side-by-side by approximately 15 2-inch steel bolts placed along a vertical path. In order to remove a panel, the bolts would first be removed. A chain would then be draped around the bucket end of an excavator, and each end of the chain would then be attached to posts on the top side of the steel form that was to be removed. The operator of the excavator would then pull the bucket away from the wall, causing the panel to break away from the concrete.

At the time this accident occurred, claimant was standing on the top of the wall, approximately 12 feet above the ground. His job was to attach the chain to the top posts of the steel form before each form was removed, and to signal the operator of the excavator when it was time to move the excavator bucket away from the wall. Claimant was wearing a safety harness and lanyard, which was approximately six feet long and which was tied off to the top of the adjacent steel form next to the one that was to be removed.

Claimant stated (see Item 3) that shortly before the accident occurred, he had removed 12 of the 15 bolts which connected the form to be removed to the form to which claimant's lanyard was attached. Claimant stated that he left three bolts in place (one on the top, one in the middle, and one on the bottom) in order to hold the form in place until it was ready to be removed.

Claimant, who was tied off with his lanyard to the adjacent form, signaled the operator of the excavator to start pulling on the form to be removed, assuming that the three bolts which he had left in place had been removed by a co-worker. As the operator started pulling on the form, the adjacent form (to which claimant's lanyard was attached) also started to pull away from the wall, since it was still connected by the three bolts. Since claimant's lanyard was attached to this adjacent form, he was pulled off of the wall by the movement of the forms and fell into the gap between the steel form and the concrete wall. The safety lanyard did not break and prevented claimant from falling to the ground. However, almost instantaneously, as claimant was suspended between the steel form and the wall, the form swung back and pinned him between the wall and the form, crushing his hip.

Labor Law, § 240(1) provides, in pertinent part that "[a]ll 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 which shall be so constructed, placed and operated as to give protection to a person so employed."

Claimant contends that the injuries he suffered were a proximate result of the failure of the safety devices to prevent him from falling, or to protect him from injury in the event that he did fall, and therefore Labor Law § 240(1) should apply. Defendant, on the other hand, contends that the injuries suffered by claimant did not occur as a result of the fall, but as a result of the steel form which swung back and struck him. The safety devices utilized by claimant prevented him from falling to the ground and being injured as a result of the fall. Furthermore, defendant argues that since claimant was injured by an object which swung into him while he was at the same level as that object, claimant cannot contend that he was struck by a falling object. Finally, defendant also argues that if the Court finds that the provisions of Labor Law § 240(1) do apply to the facts herein, that claimant's conduct was the sole proximate cause of the accident, and therefore liability should not attach.

There can be no dispute that claimant was involved in the type of work intended to be covered by Labor Law § 240(1). He was required to stand on top of a wall approximately 10 to 12 feet above the ground, which certainly would classify as an elevated work site that required the use and proper placement of protective devices as set forth in § 240(1). In fact, claimant was utilizing a safety harness and lanyard which, although it did not prevent his fall, did prevent claimant from falling to the ground.

The fact that claimant did not fall to the ground, however, does not necessarily deprive claimant from the protection of Labor Law § 240(1). (See, Brown v Niagara Mohawk Power Corporation, 188 AD2d 1014). The issue before the Court is whether the injuries suffered by claimant were the proximate result of the failure of the devices he was using to provide him with "proper protection" under § 240(1), even though he did not fall to the ground and even though his injuries did not result from the impact of this fall (see, Gordon v Eastern Railway Supply Inc, 82 NY2d 555). In other words, if the protection provided by the defendant did not serve the core objective of the statute, i.e., preventing the claimant from an elevator-related risk, then the defendant is absolutely liable for the failure to provide "proper protection." (See, Gordon v Eastern Railway Supply, Inc., supra).

In Girty v Niagara Mohawk Power Corporation, 262 AD2d 1012, the Appellate Division, Fourth Department, was faced with similar factual circumstances. In that case, a lineman was working on a telephone pole and was secured to the pole by gaffs which he wore around his legs and which were inserted into the pole. The lineman also had a safety belt which was attached to a cable line above him. As he was working on the pole, a truck struck a steel support wire, causing the pole to shake violently, and jarring his gaffs out of the pole. The lineman then fell approximately one foot when his safety belt caught on the cable line above him, thereby preventing him from falling to the ground. However, as he hung suspended from the pole, he was slammed several times into the pole, suffering his injuries. In that situation, the Appellate Division found that the lineman was entitled to the protection of § 240(1), and that his injuries were the proximate result of the failure of his protective devices to provide him with proper protection, even though he did not fall to the ground and his injuries did not result solely from the impact of his fall (see, Girty v Niagara Mohawk Power Corporation, supra).

Applying the same rational to the facts of this case, the Court finds that even though claimant did not fall to the ground, and even though his injuries did not result solely from the impact of his fall, the protective devices utilized by claimant were insufficient to prevent his injuries, and claimant is therefore entitled to the protections afforded by Labor Law, § 240(1).

Defendant also contends that claimant's failure to remove the three bolts (which secured the steel form being removed to the form to which claimant's safety devices were attached), and his subsequent signal to the operator of the excavator directing him to remove the form, constituted the sole proximate cause of the accident, thereby negating the protection of § 240(1). It is well settled, however, that ordinary negligence attributable to the injured worker is no defense to the absolute liability provided by § 240(1). (See, Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513). Although it is quite possible that claimant's actions may have contributed to his fall, it is equally clear that the point at which claimant's safety lanyard was attached was not secure enough to prevent his fall (see, Atwell v Mountain Ltd., 184 AD2d 1065).

Accordingly, since it cannot be found that claimant's actions were the sole proximate cause of his injuries, he is entitled to the protection of Labor Law § 240(1), and is entitled to summary judgment as to the issue of liability.

Accordingly, Motion No. M-61755 is hereby GRANTED; and it is further

ORDERED, that Cross-Motion No. CM-62026 is hereby DENIED; and it is further

ORDERED, that the Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in favor of the claimants in accordance with this decision and order. The Court will set this matter down for a trial limited solely to the issue of damages as soon as reasonably practicable.


September 27, 2000
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims




[1]
Unless specified otherwise, all references to claimant refer to James M. Weiser, as the claim of Daniella Weiser is derivative in nature.