New York State Court of Claims

New York State Court of Claims

CHARLES v. STATE OF NEW YORK, #2001-005-550, Claim No. 102868, Motion No. M-63882


Claimant who was injured when his right heel and ankle gave out when he stepped on a piece of surge stone at ground level while alighting from an elevated work surface is not entitled to the extraordinary protection of Labor Law §240(1) because his injuries were the result of the usual and ordinary dangers at a construction site.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Modica & AssociatesBy: Steven V. Modica, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Law Offices of F. Robert MichelBy: F. Robert Michel, Esq.
Third-party defendant's attorney:

Signature date:
December 12, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Claimant for partial summary judgment against Defendant under Labor Law §240(1):

Papers Numbered

1, 2, 3 Notice of Motion, Affidavits and Exhibits Annexed
  1. Opposing Affidavit[1]
5, 6 Filed Papers: Claim, Answer

Upon the foregoing papers, and after hearing Steven V. Modica, Esq., on behalf of Claimant and F. Robert Michel, Esq., on behalf of Defendant, this motion is denied and summary judgment is granted, sua sponte, dismissing Claimant's cause of action under §240(1) of the Labor Law.

The claim arose on March 14, 2000, when the Claimant stepped approximately 3½ feet down from his work area to the ground below, seriously injuring his right heel and ankle. At the time of the incident, Claimant was employed by BVR Construction Company, Inc. (BVR), as a laborer. BVR was the general contractor hired to perform renovation work on the Erie Canal on behalf of the State of New York.

BVR was responsible for building concrete counterweights that were used as part of the canal gate lift mechanisms at the Bushnell's Basin site. In order to perform this work, heavy equipment had to be brought into the canal bed. BVR pumped water from the canal and made "cover" dams by bulldozing the mud, dirt and rocks found at the bottom of the canal bed away from the canal gates in order to prevent water from seeping into the work area. BVR then dumped about 18 to 24 inches of "surge" stone into the canal bed to prevent the heavy equipment from getting stuck in the mud. The term "surge" refers to pieces of broken and irregularly shaped stone approximately 4 to 8 inches in diameter.

In order to build the counterweights for the lift gate mechanisms, panels of wood or steel are assembled together like the sides of a box into a form approximately 6 feet long, 4 feet wide and 6½ feet high. The sides of the form are held together by walers, which are "doubled up" pieces of wood or steel measuring 2 feet by 4 feet or 2 feet by 6 feet. The walers go around the form every 2 feet from the bottom of the form to its top and hold the form together. A re-bar cage is then dropped inside and cement is poured into the form.

On the day of the accident, cement was poured into a counterweight form from a bucket attached to a crane on a cement truck which had been driven into the canal bed. Claimant and a co-worker climbed to the top of the form by means of a ladder supplied by BVR to assist in the pouring of the cement. The next step was to cover the form with an insulated blanket and affix the blanket to the form. To accomplish this, Claimant maneuvered himself on the walers to the side of the form opposite to the side with the ladder and stood on a waler[2] about 3½ feet off the ground. He was not using a harness or a rope belt because there was no place to tie off a safety device.

After the insulated blanket had been affixed to the form, Claimant turned around on the waler and stepped with his right foot down towards the ground. He did not fall or jump from the waler. As his right foot touched the ground, his ankle "just went out"[3] when his foot made contact with the surge stone on the bottom of the canal bed.

The question before me is whether Labor Law §240(1) applies, given the circumstances surrounding Claimant's injuries. Labor Law §240(1) provides in pertinent part:
All contractors and owners . . . shall furnish or erect, or cause to be furnished or erected . . . 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. . . .
All of the safety devices enumerated within §240(1) are used in conjunction with elevation differentials. They evince a clear legislative intent to provide exceptional protection for workers against the special hazards that occur when the work site is elevated or is positioned below the level where materials are hoisted or secured (Rocovich v Consolidated Edison Co., 78 NY2d 509). The special hazards to be protected against under §240(1) are limited to gravity-related hazards, and do not encompass "any and all perils that may be connected in some tangential way with the effects of gravity[,]" even if the injury was caused "by an inadequate, malfunctioning, or defectively designed scaffold, stay or hoist" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, at 501). Hence, where the risk to the worker is the result of the usual and ordinary dangers at a construction site, a separate hazard unrelated to an elevation-related risk which brings about the need for one of the safety devices enumerated in the statute in the first instance, no §240(1) liability exists (Nieves v Five Boro Air Conditioning & Refrig. Corp., 93 NY2d 914).

Claimant alleges that his injuries occurred because he was not provided with scaffolding, an additional ladder or with any safety device to assist him in affixing the insulated blanket to the cement-filled form, or to help him to safely return to the ground from an elevated work surface.

The problem with this argument is that Claimant did not fall from an elevated height, either while standing on the waler to affix the blanket or while descending from the waler to the ground below. In fact, he did not fall at all. Rather, his injuries occurred when his right heel and ankle went out when he stepped on an irregularly shaped piece of surge stone placed in the canal bed to facilitate the heavy equipment needed to complete the work. Claimant's injuries resulted from a separate hazard, the placement of surge stone in the canal bed, and not from a special gravity-related hazard which the statute was designed to protect against. Because no true elevation-related risk was involved here, and because Claimant's injuries were the result of a usual and ordinary danger at a construction site, tripping on an irregularly shaped piece of stone, Claimant is not entitled to the extraordinary protection provided by §240(1) of the Labor Law (Nieves, supra at 916; see also, Sihly v New York City Tr. Auth., 282 AD2d 337 [plaintiff injured when he tripped on work platform while descending from a ladder not entitled to §240{1} protection]; Fulton v Northland Assocs., 248 AD2d 1020 [plaintiff who tripped on a broken piece of cinder block on the ground while alighting from a scaffold was not entitled to §240{1} protection]).

Accordingly, it is hereby

ORDERED that Claimant's motion for partial summary judgment against Defendant under Labor Law §240(1) is denied, and it is further

ORDERED that summary judgment in favor of Defendant on Claimant's Labor Law §240(1) cause of action is granted, sua sponte, and that cause of action is dismissed.

December 12, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]In his motion papers and at the beginning of oral argument, Claimant's counsel objected to the submission of papers on behalf of the Defendant after the expiration of seven days. I reviewed Defendant's application for late filing and found its reasons for delay compelling. Under these circumstances, and in view of the lack of any prejudice to the Claimant, I allowed Defendant's late papers to be filed pursuant to my discretionary authority under CPLR 2214(c).
  2. [2]At his deposition, the transcript of which was annexed as Exhibit G to the affidavit of Claimant's counsel, Claimant was asked which waler he was standing on. He responded: "I was standing on, I think the middle one. It was about three and a half feet where I was standing" (Exhibit G, p 68, lines 21-22).
  3. [3]Paragraph 15 of Claimant's affidavit submitted in support of this motion.