Michael Robinson, and his wife Loretta Robinson derivatively, filed the instant
claim alleging that claimant
was injured on
December 27, 1995 when he fell from an elevated work site while employed by a
non-party contractor on a railroad bridge abutment that was owned by defendant.
Claimants allege in their claim that defendant was negligent in failing to
furnish or erect proper safety devices which would have prevented claimant from
falling from a ledge on that abutment to the roadway below in violation of Labor
A trial on liability was
held on February 22 and 23, 2000 and this decision pertains solely to the issue
The parties agree that claimant was working on an elevated construction site
and that defendant was required to provide claimant with safety equipment
pursuant to Labor Law § 240(1) (
, Rocovich v Consolidated Edison Co.
, 78 NY2d 509). Defendant
contends, however, that claimant deliberately failed to avail himself of safety
equipment that was provided to him on the work site, and thus that liability is
precluded here by application of the recalcitrant-worker defense (see
Gordon v Eastern Railway Supply, Inc.
, 82 NY2d 555). The premise of the
recalcitrant-worker defense is that workers who are provided with proper and
safe equipment, but who refuse to use that equipment, are precluded from seeking
the statutory protections afforded by Labor Law §240(1) (id.
, Lozada v State of New York
, 267 AD2d 215, lv
__ NY2d __, 2000 WL 568390). "Proper equipment" is that which is
appropriately placed or erected so that it will safeguard the employee, and the
device itself must be adequate to protect against the particular hazard involved
in the task which the employee was assigned to perform (see
, Conway v
New York State Teachers' Retirement System
, 141 AD2d
Claimant concedes that his employer, ECCO III Enterprises, Inc., (hereinafter
ECCO) provided him with a full body harness, a lanyard and a tie line or cable,
that he was instructed to use this equipment when working at elevated sites on
the project, and that he had, in fact, used this equipment on prior occasions.
Indeed, the fact that he had done so is demonstrated by Exhibit A, a photograph
introduced by the State, which depicts claimant wearing a safety harness on
another occasion. However, it is claimant's contention that he could not reach
the cable with the lanyard that was made available to him and that the cable was
positioned to provide safety to workers who were stationed at other areas of the
work site. The pivotal question in this claim thus distills to whether claimant
was provided with proper safety equipment for the task that he was assigned to
perform. Claimant's testimony is instructive on this point.
During the trial, claimant testified that he had been in construction for
fifteen years and had been on this job since March of 1995. His title was Shop
Steward - Labor. His specific areas of employment were those of a standard
laborer, with additional duties for his union "to make sure that things are kept
on an even keel" (Trial Transcript, hereinafter "TR," Vol. I, p. 22). He
testified that he reported to George Tolli, who was the general superintendent
for the contractor ECCO and was "one of Mr. Tolli's troubleshooters" (TR, Vol.
I, p. 25).
According to claimant, on the day of the accident, he was involved in removing
bolts from a bridge abutment, a task which he indicated had a high priority.
Claimant testified that he had reported to work before 7:00 a.m., when he
received a radio call from Mr. Tolli directing him "to get up on that bridge
immediately. The driller's waiting. The machine's running. Frankie DeMello
cannot drill until the bolts * * * are gone. He's waiting on you * * * .
Please get up there and take care of it" (TR, Vol. I, pp. 25-26). Claimant
recalled that he stated that he would take care of it and went up on the ledge
to "burn the bolts for the driller" (TR, Vol. I, pp. 27, 44). Using photographs
admitted as Exhibits 1-J and 1-C, claimant pointed out and circled the location
where he was working just before the accident. He testified that he had climbed
to the top of the railroad abutment and then climbed down to a ledge
approximately five feet below (TR, Vol. I, p. 36). He described his work area
as being covered by small frozen pieces of concrete and debris on which he
eventually slipped and fell down to the roadway below.
The record and exhibits show that the ledge was approximately 12 to 15 feet
above the roadway. According to claimant, above the railroad abutment and set
back from it were vertical poles set in the ground. He explained that two
horizontal cables approximately three to four feet high were attached to
vertical poles set in the ground (TR, Vol. I, p. 40), and that the poles that
secured the cable lines were set back four to five feet from the edge of the
bridge abutment (TR, Vol. I, p. 40). Based on these estimates, he testified
that between the offset of the poles to the edge of the abutment and the height
of the cable lines, the cable was between nine and ten feet away from the place
where he was positioned to remove the bolts from the ledge (TR, Vol. I, pp.
40-41). Claimant acknowledged that he had a full body harness available to him
with a five-foot lanyard to attach his harness to the cable (TR, Vol. I, pp.
42-43). However, it is claimant's position that he could not use the harness
because the five-foot lanyard would not reach the cable lines that he estimated
were nine or ten feet away. Claimant testified that two lanyards could not be
connected together to lengthen the distance between the work site and the cable
because that would violate OSHA's standards (TR, Vol. I, p. 43).
Claimant's testimony on the inability of the lanyard to reach the cable line
from his assigned worksite was supported by the testimony of Anthony S. Nolfo, a
foreman on this particular job site and a member of claimant's union local. Mr.
Nolfo testified that he had worked on the same ledge of the railroad abutment on
the day prior to claimant's accident and was, like claimant, burning bolts in
order for the driller to proceed (TR, Vol. I, p. 100). He testified that he
also could not use the harness and lanyard because the "cables * * * were too
far away to hook off the safety belt" (TR, Vol. I, p. 102). Mr. Nolfo also
stated that you could not hook two lanyards together. He further stated as a
general matter that when confronted with an unsafe condition you would report
the situation to a superior who would say "do what you got to do, you know, and
get it done" (TR, Vol. I, p. 124).
The State presented the testimony of James J. Moriarty, who was the Engineer in
Charge of the project on behalf of the State. Mr. Moriarty testified that it
would have been possible for a person working on the ledge where claimant was
stationed to tie off with a safety harness onto one of the cables (TR, Vol. II,
pp. 158-159). Mr. Moriarty estimated that the distance between the ledge where
claimant was working at the time of his accident and the roadway below would
have been no more than twelve or thirteen feet (TR, Vol. II,, p. 160). He
explained that the railroad structure was marked with clearance numbers which
would have been present only if the structure was less than the legal height of
16 feet 6 inches and thus concluded that the ledge was less than 16 feet above
the roadway. He also doubted that the height between the ledge and the abutment
could have been as much as five feet and testified that it could have been three
feet at most. With respect to the width of the bridge abutment, Mr. Moriarty
estimated, based on his personal observations, that it was approximately three
feet rather than four or five feet as estimated by claimant. He also thought
that the poles for the cables were no more than three feet from the edge of the
abutment and that the cables were no more than 40 above the abutment. He
testified that he believed that if standing on the ledge, the harness would be
approximately four feet from the cable line, and that you could touch it with
your hand (TR, Vol. II, pp. 164-165). He conceded, however, on
cross-examination, that he had been on the bridge abutment several times before
the accident, but did not go near the edge because he is "not too crazy about
heights" (TR, Vol. II, p. 185).
George Tolli, a Civil Engineer who was employed by ECCO as the Project
Superintendent at the worksite in question, testified that, without exception,
employees working at heights on this project were required to wear safety
harnesses, which were made available to employees by ECCO (TR, Vol. II, p. 212).
Referring to a diagram of the work site that he had drawn (
, Exh. D), Mr. Tolli estimated that the distance from the roadway to
the ledge where claimant was stationed was approximately twelve feet. He
estimated that the ledge itself was two feet in depth and that the distance from
the base of the ledge to the bridge abutment above was only three feet. He also
estimated that the bridge abutment was one foot deep, that the poles holding the
cables were set approximately 18 inches back from the face of the abutment and
that the cable lines were no more than 40 inches above the abutment. He
testified that for an individual of average height, the distance between the
point on his back where the harness would hook and the cable line would have
been about three feet (TR, Vol. II, p. 226). He explained that the cable system
was installed for use by persons working on the ledge.
On cross-examination, Mr. Tolli admitted that he is related to the owner of
ECCO, who is his cousin (TR, Vol. II, pp. 234-235). He also conceded that the
diagram that he drew of the cable system and bridge abutment, which was admitted
into evidence as Exhibit D, was drawn from memory the day before he testified at
trial (TR, Vol. II, p. 235). He could not remember when he was last on the
bridge abutment or how many times he had been there, but admitted he had never
been on the ledge where claimant was working when he fell (TR, Vol. II, p. 240).
He also testified that he told claimant at the beginning of the job to wear the
safety harness and that he did not repeat the instruction because claimant had
been complying with that directive (TR, Vol. II, pp. 263-264).
The final witness to testify about the placement of the cables was Frank
DeMello, a retired 17-year employee of ECCO who was working on the ledge with
claimant and was present at the time of claimant's accident Mr. DeMello
testified that he had installed the safety cable on the job site at Mr. Tolli's
direction. He testified that the poles were six feet in length and were driven
two feet into the ground and that the poles were recessed six inches from the
edge of the abutment facing the roadway (TR, Vol. II, p. 270). He also
testified that the cables were hung approximately ten inches from the top of the
poles. Mr. DeMello testified that he was working on the subject ledge for a
week prior to claimant's accident and that he was able to wear his safety
harness while he was doing so. He testified that he did not see Mr. Nolfo
working on that ledge on the day prior to claimant's accident. He recalled that
he was working on that ledge at the time of claimant's fall approximately three
feet away from claimant and was hooked up at that time. He also testified that
when standing on the ledge the abutment was level with his waist and that he
could reach over the abutment and touch the cable lines (TR, Vol. II, p. 280).
The proof elicited at trial establishes that at the time of his fall claimant
was working on the ledge of a railway abutment which was elevated between
approximately twelve and fifteen feet from the roadway below (
, Exhs. 1C; 1J). The Court finds credible claimant's testimony, which
is supported by that of Mr. Nolfo, that although a cable line was provided at
the work site to enable workers to tie off their safety harnesses, the line was
positioned at a distance of nine to ten feet away from him, which was too far to
allow him to tie off with the available five-foot lanyards (see
, Exhs. 1A
- 1M; A). Testimony elicited at trial also established that a worker could not
safely join two lanyards because he would be given too much slack and would not
be protected in a fall.
Although defendant presented testimony of Mr. Moriarty, Mr. Tolli and Mr.
DeMello which contradicted the estimates of distances provided by claimant, the
Court finds after resolving issues of credibility and from a consideration of
all of the proof, including the photographs of the site (
, Exhs. 1-A - 1-L), that claimant's estimates of distances are more
accurate and that the safety harness could not be attached to the cable line
from his work position. The Court has given little weight to the estimates made
by Mr. Moriarty, since he admittedly never stepped towards the edge of the
abutment or ledge in question and thus had a limited knowledge to serve as a
basis for his distance estimates. Likewise, Mr. Tolli's estimates are suspect,
given that he had never entered the ledge and that he is related to the owner of
the company. Additionally, the Court has placed limited weight on the testimony
of Mr. DeMello that Mr. Nolfo never worked on the ledge on the day prior to
claimant's accident and that the cable lines were closer to the edge of the
abutment than claimant's estimate because Mr. DeMello had himself installed the
poles and cable lines and had reason to testify that they were properly placed.
Thus, from all of the foregoing proof, the Court finds that claimant has
established by a preponderance of the evidence that defendant violated the
requirements of Labor Law § 240(1) by failing to provide claimant with
proper safety devices for the elevated work that he was assigned to perform.
The Court also finds that because defendant did not provide claimant with
adequate safety devices for the height-related task it cannot rely on the
recalcitrant worker defense. Accordingly, the Court finds that defendant is
absolutely liable for claimant's injuries pursuant to Labor Law §240(1).
All trial motions not heretofore decided are deemed denied. A trial on
damages will be scheduled at the earliest possible date.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.