New York State Court of Claims

New York State Court of Claims

ISBELL v. THE STATE OF NEW YORK, #2001-015-185, Claim No. 101403, Motion Nos. M-63654, CM-63754


Court determined liability as a matter of law against State pursuant to Labor Law § 240 (1) where guardrail at construction site gave way allowing claimant to fall into cofferdam below at bridge reconstruction 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:
Martin, Harding & Mazzotti, LLPBy: Elizabeth A. Graziane, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Phelan, Burke & Scolamiero, LLPTerese P. Burke, Esquire, of Counsel
Third-party defendant's attorney:

Signature date:
September 27, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants'[1] motion for partial summary judgment determining the defendant's liability as a matter of law pursuant to Labor Law § 240 (1) is granted and defendant's cross-motion for summary judgment is denied. The claim seeks to recover money damages for personal injuries allegedly sustained by the claimant on May 13, 1998 while employed as a carpenter/laborer by Barry, Bette & LedDuke, Inc. (BBL), the general contractor on a project for the reconstruction of a bridge and adjoining roadway owned by the defendant and known as Route 85A in the Village of Voorheesville, Albany County, New York pursuant to a contract (contract number D257547) with the New York State Department of Transportation dated February 11, 1998. The claimant testified at an examination before trial that at approximately 11:45 a.m. on the day in question he was standing at ground level on the edge of a temporary cofferdam which had been constructed as part of the highway/bridge reconstruction project. While in the process of retrieving a one and one-half inch pump weighing approximately 20 pounds from the floor of the cofferdam some 15-20 feet below him he slipped and fell forward onto a temporary wood hand or guardrail constructed of two by fours which had been erected above the cofferdam. The nails holding the horizontal members of the guardrail detached from the rail's vertical support on one side causing the two horizontal members to collapse thereby causing claimant to fall approximately fifteen feet to the rock floor of the cofferdam sustaining the injuries for which he seeks compensation.

Claimants' attorneys have moved for summary judgment seeking an order determining the defendant owner's liability based upon a violation of Labor Law § 240 (1). The defendant cross-moved for summary judgment dismissing the claimant's Labor Law § 240 (1) cause of action on the ground that the cofferdam was not an elevated work site such as to invoke the application of Labor Law § 240 (1). In the alternative, defendant opposed the motion on the basis that there are questions of fact which preclude summary judgment; namely, whether appropriate safety devices were provided, whether a safety rail was required to give proper protection, whether claimant's actions were the sole proximate cause of his injuries, whether a violation of Labor Law § 240 (1) was the proximate cause of the injuries and whether claimant was involved in an "ordinary peril."

It is settled that Labor Law § 240 (1) imposes absolute liability upon an owner or contractor for injuries resulting from elevation-related risks (Roberts v General Elec.Co., 282 AD2d 791). The duty is non-delegable (Bailey v Irish Dev. Corp., 274 AD2d 917) and the statute is to be construed liberally so as to accomplish its intended purpose of protecting workers from injury ( Melber v 6333 Main St., 91 NY2d 759; Misseritti v Mark IV Constr. Co., 86 NY2d 487, rearg denied 87 NY2d 969; Rodriguez v Tietz Ctr. for Nursing Care, 84 NY2d 841; Smith v New York State Elec. & Gas Corp., 82 NY2d 781).

In order to prevail on a summary judgment motion seeking a determination of liability on the part of an owner or general contractor claimant need only show that Labor Law § 240 (1) was violated and that the violation was a proximate cause of the claimant's injury (Gordon v Eastern Ry Supply, 82 NY2d 555; Zimmer v Chemung County Performing Arts, 65 NY2d 513). A violation of the statute may be demonstrated by the failure of the owner or contractor to provide a necessary safety device required to give the worker proper protection (Bland v Manocherian, 66 NY2d 452) or in situations where a safety device was provided by proof that the particular device furnished collapsed, slipped or otherwise failed to perform its function of supporting the worker (Nephew v Barcomb, 260 AD2d 821; Spenard v Gregware Gen. Contr., 248 AD2d 868; Quinlan v Eastern Refractories Co., 217 AD2d 819; Beesimer v Albany Ave./Rte. 9 Realty, 216 AD2d 853).

Claimant asserts that although he was working at ground level he was elevated above the cofferdam and that just prior to his fall he was engaged in the act of retrieving a one and one-half inch pump from what he describes as the muddy floor of the cofferdam some fifteen to twenty feet below. He further asserts that the only safety devices provided to him at the work site were a hard hat which he was wearing at the time of the accident, the temporary guardrail erected on the edge of the cofferdam which was directly involved in his accident and one or more ladders. The ladders played no immediate role in the events giving rise to this claim.

Labor Law § 240 (1) requires the furnishing or erection of safety devices whenever a particular task involves or presents a danger of gravity related risks "because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514). A work site is "elevated" and safety devices are required for purposes of the statute where the work to be performed involves a differential in elevation between the work site and a lower level "such that one of the devices enumerated in the statute will safely allow the worker to perform the task" (D'Egidio v Frontier Ins. Co., 270 AD2d 763, 765; LaJeunesse v Feinman, 218 AD2d 827).

The claimant has submitted proof, including photographs of the accident site, which establish that the work being performed involved elevation-related risks against which protective devices were required (see, Trillo v City of New York, 262 AD2d 121; Tooher v Willets Point Contr. Corp., 213 AD2d 856; DeLong v State St. Assocs., 211 AD2d 891). In fact, such a device was provided in the form of a wooden 2 x 4 railing around the upper perimeter of the cofferdam. Claimant has further established that he was caused to fall a distance of 15-20 feet when the horizontal guardrail pulled away from the vertical support to which it had been affixed by nails. Where a claimant has shown that a guardrail or other safety device collapsed while being used in the performance of elevated work he or she has established a prima facie showing of a statutory violation which was a proximate cause of claimant's injuries and the burden shifts to the defendant to submit evidentiary facts which would raise a factual issue as to liability (Lightfoot v State of New York, 245 AD2d 488; Drew v Correct Mfg. Corp., Hughes-Keenan Div., 149 AD2d 893; Davis v Pizzagalli Constr. Co., 186 AD2d 960). No such showing was made here. It appears to the Court that claimants' attorneys may have confused the issue somewhat by attempting to bolster their Labor Law § 240 (1) claim by the affidavit of a licensed architect who expressed his familiarity with and cited various provisions of New York State's Industrial Code (12 NYCRR Part 23) and federal standards promulgated under the Occupational Safety and Health Act (OSHA), specifically citing 29 CFR 1926.104 (safety belt, lifelines and lanyards); 29 CFR 1926.105 (safety nets); 29 CFR 1926.106 (working over or near water); and 29 CFR 1926.500 (guardrails, handrails and covers). Defendant's attorney in response to the motion offered the affidavit of a certified professional engineer who asserted that the defendant had complied with OSHA's standards for fall protection set forth in 29 CFR1926.502 and alleged that claimant's accident was caused in part by claimant's weight (approximately 230 pounds) which exceeded the maximum force requirement set forth in the OSHA standard.

Neither the provisions of New York's Industrial Code nor federal OSHA standards affect an owner's liability under Labor Law § 240 (1). In fact, violations of OSHA standards, which are directed to employers rather than owners, will not even provide a basis for liability under Labor Law § 241 (6) (see, Millard v City of Ogdensburg, 274 AD2d 953; Greenwood v Shearson, Lehman & Hutton, 238 AD2d 311; McGrath v Lake Tree Vil. Assocs., 216 AD2d 877). Since reference to a violation of the Industrial Code is not necessary to impose liability upon an owner pursuant to Labor Law § 240 (1) the defendant's expert's opinion regarding the defendant's alleged conformity with the Industrial Code or relevant OSHA standards do not raise a factual issue sufficient to defeat the motion. Furthermore, the Court is not persuaded by the defendant's remaining arguments that claimant's own actions were the sole proximate cause of his injuries, or that claimant's injury was attributable to an ordinary peril of construction work (cf., Bradshaw v National Structures, 249 AD2d 921) rather than an elevation-related hazard giving rise to liability pursuant to Labor Law § 240 (1).

Claimants' motion seeking partial summary judgment determining the liability of the defendant upon a violation of section 240 (1) of the Labor Law is granted. A conference will be scheduled to establish a date for trial on the issue of damages.

September 27, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion for summary judgment dated June 22, 2001;
  2. Affirmation of Elizabeth A. Graziane dated June 22, 2001, with exhibits;
  3. Affidavit of Irving Paris sworn to June 19, 2001;
  4. Notice of cross-motion dated July 11, 2001;
  5. Affidavit of Terese P. Burke sworn to July 11, 2001;
  6. Affidavit of Ernest J. Gailor, P.E., sworn to July 9, 2001;
  7. Affirmation of Elizabeth A. Graziane dated July 16, 2001.

[1]The claim of Doreen C. Isbell is derivative only and all references to claimant in the singular refer to Michael H. Isbell.