New York State Court of Claims

New York State Court of Claims

WALTER v. THE STATE OF NEW YORK, #2001-013-510, Claim No. 95630


Synopsis


The State violated Labor Law §200 and §241(6) by allowing debris to accumulate and cables to lie on a platform in a construction area. Claimant, who was aware of the presence of such hazards, was also partially responsible for injuries caused when he slipped on the debris and got his foot tangled in the cable.

Case Information

UID:
2001-013-510
Claimant(s):
JOEL WALTER and DEBRA L. WALTER
Claimant short name:
WALTER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95630
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
HINMAN, HOWARD & KATTELL, LLPBY: PAUL T. SHEPPARD, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: JAMES E. SHOEMAKER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 28, 2001
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This claim is based on allegations that on July 8, 1994, Claimant Joel Walter[1] fell and suffered physical injuries at the State Office Building at 44 Hawley Street in Binghamton, New York. At the time, he was employed by Haks Construction Co. (Haks) as an inspector and was working in the course of that employment during the final stages of the rehabilitation of the State Office Building. It will be recalled that this structure was closed for over fourteen years after an explosion within the cooling system discharged PCBs and resulted in contamination of the entire structure. Haks was one of the contractors employed by the State to carry out rehabilitation of the building.
This claim originated as a motion for permission to file a late claim (Court of Claims Act §10[6]), which was initially denied by former Judge Jerome Hanifin. On appeal, the Appellate Division, Third Department, upheld Judge Hanifin's ruling with respect to the causes of action based on Sections 240 and 241-a of the Labor Law, but reversed with respect to those based on Labor Law §§ 200 and 241(6) and on negligence. Judge Hanifin had held that those causes of action lacked the appearance of merit because they would be barred by the doctrine of primary assumption of risk. The appellate court reversed, concluding that "claimant's decision to traverse the platform, despite knowledge of its condition, simply does not involve an inherent, increased risk of danger [but o]n the contrary, claimant's action is a factor to be considered in assessing his culpable conduct" (
Walter v State of New York, 235 AD2d 623, 624). Trial on the issue of liability ensued, and this decision results.

Factual Background:

The State Office Building is comprised of 19 floors and a so-called "penthouse." The 19th floor housed the mechanics, such as heating and air conditioning units, and provided access to the roof. The "penthouse" is an area above the 19th floor that contains, among other things, the cable system for the building's elevators. Because the building's elevators only went to the 18th floor, it was necessary for contractors to rig a hoist system to remove debris from the 19th floor, roof, and "penthouse." An access opening from the 19th floor provided access to the 18th and its elevators, and during the period of rehabilitation, the steel doors used to cover this opening were removed. A plywood platform was erected around the opening to bring it level with a corridor used by workers to transport the waste and debris, and a hoist was installed to lower the debris to the floor below. When it was not being used for a period of time, a metal cover was supposed to be placed over the opening, and when the cover was not in place, a workman was supposed to be present to protect anyone from falling into the opening.

Claimant was hired by Haks on July 6, 1994 to work as an inspector in connection with installation of the power control system, fire alarm system and computer management system. He was instructed in his duties by Dale Smith, a manager of the New York State Office of General Services (OGS) and worked directly under Smith's supervision. It was understood that Claimant's employment on this job would be of short duration, as most of the work had already been accomplished

At trial, Claimant testified that on his initial tour of the 18th and 19th floors, he informed Smith that there was considerable debris in that area. On his second day on the job, July 8th, Claimant was instructed by Smith to accompany Frank Broderick, an employee of Gleason Electric, to the 19th floor to inspect the fire alarm wiring located in the "penthouse" area. The two took the elevator to the 18th floor and then the stairway to the 19th floor. Claimant followed Broderick up the stairs and out onto the platform around the opening between the two floors. There was some dispute as to whether it was necessary to step onto this platform: Claimant stated that it was immediately in front of the top of the stairway, while other witnesses later stated that it was approximately 18 inches to the left of the doorway, making it possible to walk onto the 19th floor without stepping on the platform.

In any event, Broderick, and then Claimant, walked onto the platform. Claimant stated that almost immediately he heard someone, presumably Broderick, yell, "look out." As he turned to the right, away from the open hole, Claimant stepped forward with his right foot, which slipped on some debris lying on the platform. His foot then became tangled up in cables that were lying on the floor, causing him to pitch forward, twist, and land on his right knee and right hand. He stated that as this happened, he felt a popping in his back. Claimant states that he was on the floor for around 15 seconds until Broderick, he believed, assisted him to his feet. Claimant then brushed himself off and completed his work day. Claimant subsequently reported the accident to Dale Smith and was instructed to fill out an accident report, which he did on July 11th, the Monday following the incident.

In that report (Exhibit 8), in an October 6, 1994 statement given to an investigator for the Workers' Compensation Board (Exhibit 20), and in a July 18, 1995 affidavit (Exhibit R),Claimant stated that his feet became tangled in cables from the window washing equipment. Later, during the discovery phase of this action, Claimant viewed a video tape of the rehabilitation project that had been taken some three months prior to the accident (Exhibit 24) and concluded that rather than cables connected to the window washing equipment, the ones involved in his accident may have been part of the hoist system or some other piece of equipment. Claimant was unwavering, however, in maintaining that his fall was caused by cables which were among the debris in the area. Claimant also testified that he was very aware of the opening and did everything in his power to turn, or fall, to his right to avoid falling through that opening, which was on his left.

The testimony of Frank Broderick about these events was, at best, vague. He had no recollection of calling out to Claimant, of seeing him fall, or of helping him to his feet. He did recall that on the Monday following the accident, Claimant spoke to him about the event, and he later confirmed to Smith that Claimant had told him about the fall. Even at that time, however, he had no independent recollection of it. He reiterated that he was not saying the accident did not occur, only that he had no recall of it. Broderick also had no recollection of whether there was debris in the area on July 8th but acknowledged that the area was not always cleaned up and the presence of general construction debris was not unusual. Broderick was one of the witnesses who said that it was possible to walk either onto the 19th floor or onto the platform after coming out of the stairway. He confirmed that there were occasions when the opening was left exposed, without either the cover in place or a workman present to warn of the danger.

Dale Smith, the Office of General Services employee who served as the Senior Superintendent of Construction and Area Supervisor for this project, testified that Claimant's employment was to be short-term, lasting only until Gleason Electric completed its work, estimated to be September 1994 but possibly earlier. Despite informing all contractors that he was to be notified of any problems, he had never been told of any safety concerns on the 19th floor, and he never received any notes from Claimant regarding problems around the hoist area. He had no recollection of Claimant's mentioning on July 6th that he had seen debris in the 19th floor area, and he had no written notation of that complaint. He believed it was likely that debris was being removed from the 19th floor on July 8th, because the building was being cleaned and all debris removed so that there could be testing by the Department of Health. He was not on the 19th floor that day, however, but when he went to that area
on July 11th, he saw no debris on the floor or the platform. Smith confirmed that the hole was supposed to be either guarded or covered when it was open, but he could not testify that this was always the case.
Smith was not aware of the July 8th incident involving Claimant until the following Monday, when he was informed of it by Claimant himself. As he recalled, when Claimant initially told him of the incident, he said that he had not been hurt and that he had gone to Wilson Hospital over the weekend to be checked out and was fine. Claimant reported to work on that Monday and did not miss any days for the rest of the time he worked on the project. When shown a statement that he had made to an investigator from the State Insurance Fund on October 7, 1994, Smith agreed that Claimant had informed him of the incident but categorically denied that he had ever spoken with Broderick about the event, feeling that it was not necessary, since Claimant had downplayed the entire incident.

Eugene Hall, the Engineer in Charge of the project and a Senior Superintendent of Construction, testified that as part of his responsibilities on the project he was on the 19th floor twice every day. He saw very little debris on either the floor or the platform during the months of June and July, in part because of the anticipated Department of Health tests and his admonition to contractors to keep the work site clean. After hearing of the incident involving Claimant, he returned to the floor but did not see any problem, specifically he saw no cables or debris in the area. He did not speak with either Claimant or Broderick about the event. To his memory, the hole between the two floors was kept covered when it was not in use. According to Hall, it was possible to walk around the platform when entering the 19th floor.


Law and Analysis:

Claimant maintains that the Defendant is liable for his injuries pursuant to Sections 200 and 241(6) of the Labor Law. Under Section 200, Defendant, as owner of the structure, has the obligation to provide workers on its premises with a safe place to work. This statute codifies a
landowner's and general contractor's common-law duty to maintain a safe workplace (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 506). 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). 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 safety rules and regulations formulated by the Commissioner of the Department of Labor (Ross v Curtis-Palmer Hydro-Elec. Co., supra, at 501-502). This duty is nondelegable, and the injured party need not show that a landowner exercised supervision and control over the work site (Long v Forest-Fehlhaber, 55 NY2d 154, 159).
Defendant argues Labor Law §200 does not apply because it did not exercise sufficient supervisory control over the work project. I do not agree. There is sufficient proof before me to support a finding that in this case the Defendant did maintain supervision over the activities of the various contractors on the site. Claimant's responsibilities were to report directly to Dale Smith, a State employee, who had overall supervision of this project. He was trained in his duties by Smith, and Smith admittedly asked all contractors to inform him of problems on the project, including safety concerns. Implicit in Claimant's responsibilities would be to report any dangerous condition he observed whether in connection with his specific assignment or any other fact of the rehabilitation project. While it is clear from the various minutes of weekly meetings between the Defendant and various contractors that there were repeated admonitions regarding cleanup, it is also apparent that the Defendant exercised the requisite control and if aware of debris left lying about, he would and could compel the contractors to clean the site. This conclusion is bolstered by the testimony of Eugene Hall, an inspector and State employee, who was dispatched by Smith to the accident site to investigate this incident.
With respect to the cause of action based on Section 241(6) of the Labor Law, Claimant alleges that Defendant violated the provisions of Subdivision (e) of 12 NYCRR 23-1.7, which is entitled "Protection from general hazards." Subdivision (e) reads as follows:
(e) Tripping and other hazards.
(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.

(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.

The Fourth Department has held that this regulatory provision sets forth a specific requirement or standard of conduct, rather than merely reciting that the work area have reasonable and adequate safety and protection (Tucker v Edgewater Const. Co., 281 AD2d 866; see also, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, supra; Long v Forest-Fehlaber, 55 NY 2d 154, supra; Bland v Manocherian, 66 NY2d 452; Cafarella v Harrison Radiator Div. of Gen. Motors, 237 AD2d 936; White v Farash Corp., 224 AD2d 978).
The critical question in determining whether the State violated either of these provisions is whether construction debris and cables of one sort or another were negligently allowed to accumulate on and lie across the platform working/walking surface area. Claimant says that debris was present on July 6th and on July 8th and that, at least on the latter date, there were cables within the debris, creating a type of dangerous trap. The condition was all the more dangerous, according to Claimant, because it was necessary to walk on the platform when entering the 19th floor from the stairway. Frank Broderick had no recollection of the day in question but testified that the platform area was not always cleaned up. The State employees took the position that there could have been no such accumulation of debris, but I note that Dale Smith was not at the location of the accident on the day in question or perhaps for some time before. Eugene Hall was in a better position to know the conditions on the 19th floor, but he could not speak to the situation on a specific date. I found Claimant's accounts of the condition of the platform, both on July 6th and on the day of his accident, to be credible, and I also credit his testimony that his fall was caused, in part, when his foot encountered a cable. It does not matter whether or not walking on the platform was the only way to enter the 19th floor, since there was no testimony that workers were supposed to avoid walking on the platform. It was a legitimate working area/passageway, and it was one that was immediately adjacent to a hole that was large enough for a person to fall through and which, it appears to be undisputed, was not always guarded as it should be. It was foreseeable, therefore, that any debris or cables in that area would be highly dangerous because any fall could result in serious harm, either by someone falling through the hole or, as Claimant did, making extraordinary efforts to avoid such a fall. Not even the State witnesses indicated any special effort had been made to maintain particular cleanliness and order in this area. Accordingly, I conclude that Defendant violated its duty to provide a safe workplace, and at the same time violated 12 NYCRR 23-1.7(e), by allowing debris and cables to accumulate and remain on the platform.
While the State alludes to Claimant's having assumed the risk inherent in this particular circumstance, that issue is not before me, having been disposed by the appellate court in the appeal from Judge Hanifin's earlier dismissal of the claim (Walter v State of New York, 235 AD2d 623, supra). As noted in that decision, however, Claimant's decision to traverse the platform, despite knowledge of its condition, must be considered in assessing his culpable conduct which contributed to the accident. The record firmly establishes that he was also negligent, and I find he that must bear fifty per cent (50%) of the fault for his injuries, based on his prior knowledge of the conditions in that area and on the basis that he is charged to see that which is before him to be seen (Weigand v United Traction Co., 221 NY 39, 42).
All motions not heretofore ruled upon are hereby denied.
The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability. This claim will be scheduled for a trial on the issue of damages as soon as practicable.



September 28, 2001
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1]The claim of Debra L. Walter is derivative in nature. Unless otherwise indicated or required by the context, the term "Claimant" shall refer to Joel Walter.