New York State Court of Claims

New York State Court of Claims

BROMLEY v. THE STATE OF NEW YORK, #2001-009-108, Claim No. 96630


Synopsis



Case Information

UID:
2001-009-108
Claimant(s):
ROBERT D. BROMLEY and AMY JO BROMLEY
Claimant short name:
BROMLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96630
Motion number(s):

Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY, JR.
Claimant's attorney:
SASSANI & SCHENCK, P.C.
BY: Kathleen C. Sassani, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C.
Thomas R. Gray, Esq.,Of Counsel.
Third-party defendant's attorney:

Signature date:
October 31, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
The claimant herein was injured on a construction job site on August 14, 1996 and has instituted this action against the defendant State of New York as a result of the injuries sustained at that time. A trial was held on the issue of liability only, and this decision addresses only the issue of liability.

The claimant Robert D. Bromley[1]
was an employee of Santaro Construction Company. The claimant was a member of the Local Oswego 214 Union. Santaro Construction Company was at that time under contract to perform construction work at Route 3 in the area of Oswego, New York, pursuant to a New York State construction contract.
Claimant appeared on the job site on October 13, 1996, and worked that day as a "flagger"[2]
. His responsibilities were to assist in traffic flow over the 17 mile long road construction site. Upon completion of that day's work, he was told to report again for additional flagging responsibilities.
Upon returning to work on August 14, 1996, claimant was instructed by an employee of Santaro Construction, one Christopher Longo, that the draught operations in the construction area were going to close due to mechanical problems. Mr. Longo indicated to the claimant that bench marks had to be moved across the job site. The testimony indicated that certain windmaster signs had to be moved and at this point, the testimony indicated that Mr. Longo instructed Mr. Bromley to assist in the moving of these signs. Mr. Longo was driving his own pick up truck on the day of the incident even though he was employed by Santaro Construction Company. Mr. Longo instructed Mr. Bromley to sit in the back of the truck and have his legs protrude out of the tailgate of the truck. Two legs of the sign were lifted and placed on either side of claimant's extended legs with the understanding that the claimant would hold onto the legs of the sign while Mr. Longo drove the pick up truck. This dragging of the sign practice was utilized with some regularity according to Mr. Longo.

When asked to participate in this method of dragging the signs, claimant indicated that he did not want to move the sign in that manner, that the correct manner would have been to pull the signs and place them in the actual bed of the pick up truck. There is no question that the claimant became upset, and in fact, used some profanities to demonstrate his frustration over having to move signs in what he obviously considered a dangerous manner. Claimant's reason for indicating that he agreed to and in fact, did participate in this manner of dragging signs was the fact that he had been unemployed for a number of months and had a family to support.

The first sign was successfully moved using the dragging manner, but during the course of trying to move a second sign, the testimony indicated that the claimant was thrown from the truck and landed on his back and struck his head. There is conflicting testimony as to whether or not Mr. Longo, who was the driver of the pick up truck during the course of both sign draggings, was agitated as a result of some work site problems and therefore drove too quickly thereby increasing the danger to the claimant, or whether or not the claimant was injured as a result of the inevitable falling off of the back of the pick up truck while dragging the signs.

Upon becoming aware of the fall of the claimant, Mr. Longo stopped the pick up truck and assisted the claimant into the cab of the truck and drove him to the milling crew. An ambulance was called to assist the claimant.

The testimony indicated that the State of New York had five inspectors throughout the job site and one superintendent. These individuals were there to ensure that the contract which was signed between Santaro Construction and the State of New York was complied with in all aspects, including but not limited to safety requirements and all regulations which pertain to work site safety.

It is the claimant's position that the State is responsible for the injuries which he sustained by failing to provide an adequate work place by reason of not properly supervising the work of the contractor Santaro Construction Company. It is claimed that the State's failure to properly conduct itself in this situation violated New York State Labor Law, § 200 and New York State Labor Law, § 241(6). Additionally, it is the claimant's contention that he was not negligent in any manner in connection with his conduct on the day of the accident, and as such there should not be a finding of any comparative negligence on his part.

The defendant State of New York considers that the claimant and Santaro Construction Company are the only parties who should be held liable in any manner for the accident which resulted.

Focusing first on Labor Law § 200, there can be no question that the defendant State of New York has an obligation to provide workers on its premises with a safe place to work. This statute codifies a landowners' and general contractors' common-law duty to maintain a safe workplace (
Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). Liability cannot be imposed unless it is shown that the party to be charged exercised some supervisory control over the operation (Lombardi v Stout, 80 NY2d 290; Allen v Cloutier Constr. Corp., 44 NY2d 290). The defendant that Labor Law § 290 does not apply because it did not exercise sufficient supervisory control over the work project.
After reviewing all of the testimony and evidence presented herein, the Court concludes that there was a violation of Labor Law § 200 on the part of the defendant State of New York. Simply put, the inspectors and supervisor who were on site had an obligation to be pro-active in viewing all of the activities which were being undertaken by the contractor in pursuit of the contract. It cannot be denied that the sole purpose for these State employees to be on the job site is to ensure worker safety. For the Court to determine that the State was not liable under the facts and circumstances of this case would be tantamount to concluding that even though inspectors are on State contractual job sites, they have no responsibility to ascertain whether or not safety rules and regulations which are promulgated by the State are in fact being adhered to. This would render Labor Law § 200 a nullity. Accordingly, the Court finds that Labor Law § 200 was violated and that the State inspectors who were on the job site failed to properly ensure that the contractor Santaro Construction Company was complying with all of the practices which are incumbent in providing a safe work place.

With respect to the cause of action based on Labor Law § 241(6), claimant alleges that defendant violated the provisions of Industrial Code of the State of New York § 23-9.7, which is entitled Motor Trucks and under subsection (e), this language appears:

"Riding. No person shall be suffered or permitted to ride on running boards, fenders or elsewhere on a truck or similar vehicle except for where a properly constructed and installed seat or platform is provided."
Labor Law § 241(6) mandates owners and contractors to provide to workers reasonable and adequate protection and safety for workers by requiring them to comply with specific rules and regulations formulated by the Commissioner of the Department of Labor (
Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). This duty is nondelegable, and the injured party need not show that a landowner exercise supervision and control over the work site (Long v Forest-Fehlhaber, 55 NY2d 154).
The claimant correctly states that New York State Industrial Code § 23-9.7 has been found to be sufficiently specific to support a claim under Labor Law § 241(6). (See,
Case of Claus v El Du Pont De Nemours & Co., 726 NY2d 317).
The Court once again considering all of the testimony and evidence before it concludes that the regulation of the New York State Industrial Code hereinabove cited was in fact violated and that it was a proximate cause of the accident (see,
Ares v State of New York, 81 NY2d 959). Accordingly, the Court finds that the defendant State of New York did violate Labor Law § 241(6) and as a result of that violation must be held liable for the injuries sustained by the claimant herein.
The Court now must and shall consider the comparative negligence of the claimant. Comparative fault is a defense against Labor Law § 200 and § 240(6) claims (
Zimmer v Shemung County Performing Arts, Inc., 65 NY2d 513; Long v Forest-Fehlhaber, supra). The main thrust of claimant's argument in the eyes of the Court which militate against a finding of any negligence on his part reduces to the fact that he felt that his employment might be in jeopardy if he did not comply with the directives of Christopher Longo. The Court is convinced that the claimant was fully aware of the dangers involved with the dragging of signs and yet elected to participate in that activity. In fact, the claimant even testified[3] that he did not intend to return to work on the day following the accident if he was required to continue to participate in the dragging of the signs in the manner which caused the accident.
The Court cannot and does not except the claimant's position as adequate to conclude a finding of negligence on his part.

The claimant indicated that he was a member of the Labor Union. As such he could have very well have taken it upon himself as a competent adult and worker to discuss this situation with a Union representative if he was concerned about his safety, and in view of the fact that he elected not to do so, he is accountable for his actions. The claimant herein cannot have it both ways. If he genuinely was concerned about employment for his family, he certainly knows that he must remain healthy enough to work. By participating in what he perceived to be a dangerous activity, he put his employment and therefore his family at risk. The claimant should have taken it upon himself, for his own safety and well-being, to have contacted even a State representative or his employer to voice any concern which he may have had concerning the method which was being utilized to move the signs. For an adult such as claimant to actively participate in what he perceives to be a dangerous situation without voicing opposition or in fact refusing to participate, he must stand accountable.

After careful consideration of all of the facts presented to the Court, the Court finds as follows: the defendant State of New York violated both Labor Law §§ 200 and 241(6) and as a result is 50% liable for the damages sustained by the claimant herein.

The claimant by his actions is deemed to be 50% responsible for the injuries which he sustained.

The clerk of the court is directed to enter an interlocutory judgment on the issue of liability. The Clerk of the Court will set this matter down for trial on the issues of damages as soon as practicable.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.


October 31, 2001
Syracuse, New York

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




[1]. Since the claim of May Jo Bromley is derivative, all references to claimant, unless otherwise indicated, are to Robert D. Bromley.
[2]. Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.
[3].Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.