The trial of this claim was bifurcated by Order of the Court dated March 7,
2000. At trial on the issue of liability held on October 26, 2000, the Court
reserved decision on the defendants' motion to dismiss the claim for failure to
establish a prima facie case made at the close of claimants' proof. That motion
will now be addressed.
On August 4, 1994 a tractor trailer truck transporting approximately 500
beehives containing an estimated 30 million bees overturned on a ramp linking
westbound traffic on the Cross-Westchester Expressway (I-287) to the northbound
lanes of the New York State Thruway (I-87). The claimant James Dreisacker, a
professional beekeeper and owner of Westchester Wildlife Control located in
Brewster, New York, responded to the scene and was injured while involved in
efforts to recapture and salvage the bees. The claim, filed on July 30, 1996
asserts causes of action premised upon common law negligence and violations of
Labor Law § 200, § 240 (1) and § 241 (6).
The overturned tractor trailer came to rest on its left side with a large
portion of its cargo still strapped to the flatbed trailer. The remaining hives
had fallen from the trailer and broken open, releasing a cloud of bees which
hovered over and around the accident scene causing substantial traffic delays at
this heavily traveled convergence of two major roadways. New York State Police,
Thruway Authority personnel and nearby municipal fire and emergency crews
responded to the scene. The State Police appear to have been primarily
concerned with public safety and traffic flow which in this particular area was
estimated at approximately 120,000 cars per day.
Two tow trucks arrived on the scene and attached their tow cables to the
trailer. Winches on the two trucks were engaged and the trailer with its
partial load of hives still attached was pulled into an upright position.
Claimant was asked by the tow truck operators to help remove the towing cables
and mounted the trailer to accomplish the task. Claimant testified that as he
stepped onto the trailer it began to shift and that he was forced to jump to the
ground as the trailer fell back to its original position. The shifting of the
load caused the two trucks' outriggers to slide creating gouges in the roadway
surface. Claimant was uninjured in his leap from the trailer. Thereafter the
claimant advised Donald Monchino, the Assistant Traffic Safety Supervisor for
the New York State Thruway Authority, that the straps securing the hives to the
trailer should be cut so that the hives could be removed and the trailer could
be righted. Then, claimant suggested, another trailer could be brought
alongside the trailer involved in the accident and the hives easily transferred
from one to the other. Monchino said "[f]ine, do whatever you have to
Claimant climbed onto the truck and began to cut the nine or ten straps holding
the hives to the trailer. When claimant cut the final strap the load shifted
and the trailer began to right itself. Claimant jumped from the trailer and in
doing so suffered a comminuted calcaneal fracture to his left foot for which he
seeks compensation. His wife asserts a derivative cause of action.
At trial claimant called Keith Giles, the former Director of the New York
Division of the New York State Thruway Authority, now retired, as a witness.
Giles testified that he did not call the beekeepers to the scene and does not
know how they happened to be there. The witness testified that he did not
arrive on the scene until the afternoon of August 4, 1994 which was after the
claimant sustained his injury. Consequently, Giles' testimony sheds little
light on the issues.
Claimant then called Captain Robert A. Hughes, a member of the New York State
Police assigned to Troop T, Zone 1, which includes the accident scene.
Captain Hughes likewise testified that he was not at the scene at the time of
claimant's injury. He described usual accident scene procedures but could offer
no testimony regarding the State's control or direction of claimant's activity
at the scene prior to the claimant's injury since he did not directly observe
Claimants' next witness was Sergeant Lee A. Wright, a member of the New York
State Police since 1981 who was assigned to Troop T on the date of the incident.
Sergeant Wright testified that he arrived at the accident scene between 9:00 and
9:30 a.m. He denied having called the beekeepers to the scene, did not know who
contacted them, and was not present at the scene when claimant was injured.
The witness asserted that he never spoke to beekeepers at the scene and never
directed their efforts to capture the loose bees. He testified further that the
Thruway Authority never directed the beekeepers in their work and did not recall
if a conversation occurred between Donald Monchino on behalf of the Thruway
Authority and the beekeepers. Sergeant Wright on both direct and
cross-examination acknowledged that on the morning of the accident he telephoned
a beekeeper named Mr. Meixner from whom he solicited advice regarding the
handling of bees but denied asking Meixner to come to the accident scene. When
Meixner arrived at the scene he told the witness that there were too many bees
for him to handle. Sergeant Wright testified that upon being so advised he did
not direct Meixner, or any of the other beekeepers, to do anything. Finally,
the witness stated that he did not observe Donald Monchino directing the
beekeepers in any manner.
Claimant testified on his own behalf. He testified that in 1994 he was the
owner of a licensed nuisance wildlife control business. He stated that he was a
beekeeper prior to 1994 and that he had previously received referrals from the
New York State Police related to nuisance wildlife but that he had never
actually been employed directly by the State Police. On the day of the accident
claimant alleges that he was contacted by a New York State Trooper who requested
that he come to the scene of the accident and provide assistance regarding the
bees but does not recall the Trooper's name. He alleges that he was also
contacted by Barbara McDonald of the Westchester County Public Health Department
who telephoned to ask claimant to assist at the scene. The claimant contacted
several other beekeepers and arrived at the scene at approximately 8:30 - 9:00
a.m. with his son, brother and a friend along with protective gear to be worn
while harvesting the errant bees and moving the hives.
The beekeepers then began several hours of recovery operations involving
attempts to calm the bees and direct them back into their hives. Claimant
testified that no one appeared to be in charge at the scene but at one point in
his testimony alleged that his actions were directed by Don Monchino.
Specifically he testified that he consulted with Monchino about bringing another
flatbed truck to the scene and trying to transfer the hives. The transfer
operation began with the trailer in its overturned position but, according to
claimant, this process did not work very well. Claimant then spoke to Monchino
regarding a plan to right the overturned truck, place another truck alongside it
and transfer the hives from one to the other.
Claimant testified that the first attempt to right the truck failed due to the
excessive weight of the loaded trailer which pulled the two tow trucks, with
their outriggers extended, in the direction of the overturned vehicle.
Claimant, who was on the trailer, safely jumped from it to the ground.
Claimant alleges that he then attempted to persuade the tow truck operators to
again endeavor to right the trailer but they refused. Claimant approached
Monchino, who admittedly stayed seated in his vehicle with the windows up for
80-90 percent of the time he was at the accident scene, and proposed a new plan.
Claimant testified that he determined it was necessary to cut the straps
holding the hives to the trailer and recommended such a course of action to
Monchino. Claimant alleges that in response to claimant's proposal Monchino
said, "[f]ine, do whatever you have to do." Claimant does not allege that he
was directed to mount the truck and to cut the straps by Monchino or any other
State employee or officer at the accident scene. Nor does he allege that anyone
provided him with the tools required to accomplish the work. In fact, claimant
used his own tools to cut the straps.
Claimant testified that as he cut the last of the nine or ten straps holding
the hives the trailer began to quickly shift to an upright position causing him
to jump to the ground and injure his heel. On cross-examination claimant
acknowledged that the New York State Police did not attempt to hire him, but
claims that he did not volunteer. He further testified that he had no
conversation with either the State Police or Thruway Authority personnel
regarding payment for his services. He did, however, admit that he entered into
an agreement with Great West Insurance
to salvage the bees and admitted being paid by the company for his efforts. He
also related his view that none of the officials at the scene were sure how to
handle this particular situation. According to the claimant, he made
recommendations to the onsite officials as to how the recovery process should
proceed and then he and his fellow beekeepers acted without official instruction
At the conclusion of claimants' proof the defendants' attorney moved for
dismissal of the claim for claimants' alleged failure to prove a prima facie
case. Defendants argued that this was not a matter covered by the Labor Law and
that claimant had failed to demonstrate both that the defendants breached a duty
owed to the claimant and that claimant's injury was proximately caused by such
alleged breach. Defendants argued further that claimant was a volunteer and
that he assumed the risk of mounting the truck for a second time knowing of the
truck's prior instability. Defendants also argued that an accident site does
not constitute a "construction site" for purposes of the Labor Law and that
claimant was not an employee entitled to the protection afforded thereunder.
Defendants aver that the situation was a true emergency and that defendants'
acts or omissions at the scene of an emergency will give rise to liability only
if claimant demonstrates that such conduct was reckless.
The Court reserved decision on the defendants' motion.
The defendants called only one witness, Donald Monchino. Mr. Monchino
testified that he was an Assistant Traffic Safety Supervisor for the New York
State Thruway Authority and that he arrived at the scene at approximately
10:00-10:30 a.m. He parked his State owned vehicle on the exit ramp
approximately 800-1,000 feet from the overturned tractor trailer and directed a
Good Samaritan van at the scene to broadcast a message to drivers over the van's
public address system instructing them to keep their windows closed. Mr.
Monchino testified that upon his arrival he attempted to exit his vehicle but
was attacked by bees and forced to return to it. He testified that bees covered
his car several times and that it became difficult to converse with people at
the scene. Monchino stated that he witnessed the arrival of the beekeepers but
did not call them to the scene nor did he know how or why they were called.
Monchino stated that he spoke to only one beekeeper who told him that he heard
about the accident on the radio and stated that he wanted to save the bees to
which Monchino responded, "[g]o ahead." Monchino also testified that he spoke
to the owner of Autobahn Towing Company who advised that there could be no
recovery of the tractor trailer until the bees were retrieved. Monchino
acknowledged that one unsuccessful attempt to right the trailer was made and
that subsequently he was approached by a beekeeper who told him that the straps
holding the load would have to be cut. He replied "[g]ood luck" and watched as
the beekeeper stepped up onto the truck and began cutting the straps. The truck
shook and the beekeeper fell or jumped from the truck.
On cross-examination Monchino testified that the beekeepers made all the
decisions at the scene and that at one point he told the beekeepers to cease
operations but they refused. Monchino claimed that he was responsible only for
traffic safety at the scene and was not responsible for the recovery of the
trailer or its cargo. He testified that no Thruway Authority or Department of
Transportation employees were involved in the recovery operation and, when asked
if he had given his approval to the claimant to cut the straps on the trailer,
Monchino replied that he didn't say yes and he didn't say no. He admitted that
he said "[b]e careful."
The defendants' attorney renewed his prior motion at the close of defendants'
The defendants' motion to dismiss the claim must be granted. "Fundamentally,
recovery under Labor Law § 200 (1), § 240 (1) or § 241 (6) is
conditioned upon a showing that the plaintiff 'was both permitted or suffered
to work on a building or structure and ***
was hired by someone, be it owner, contractor or their agent
v Warwick Val. Civic & Social Club
, 47 NY2d 970, 971 [emphasis
supplied]; see Mordkofsky v V.C.V. Dev. Corp.
, 76 NY2d 573,
576-577; Marchese v Grossarth
, 232 AD2d 924, lv denied
809). For that reason, '[a] volunteer who offers his [or her ] services
gratuitously cannot claim the protection afforded by the 'flat and unvarying
duty' flowing to this special class' (Whelen v Warwick Val. Civic &
at 971, quoting Yearke v Zarcone
, 57 AD2d
457, 459, lv denied
43 NY2d 643; see Mordkofsky v V.C.V. Dev.
; Pigott v State of New York
, 199 AD2d 734;
Chabot v Baer
, 82 AD2d 928, affd
55 NY2d 844)" (see
Lee v Jones
, 230 AD2d 435, 436, 437). Here claimant offered no proof
whatsoever that he was hired by the defendants or any agent of the State. He
proved only that he was hired by the Great West Insurance Company to salvage the
truck's cargo of bees and hives. Assuming that Great West Insurance Company was
the claimant's employer for Labor Law purposes, no legal nexus was established
between his "employer" and the State of New York upon which liability under the
Labor Law may be predicated.
Nor was claimant's attempt to salvage the trailer's load of bees an activity
protected under Labor Law § 240 (1) which provides statutory protections
against elevation-related dangers to workers engaged in the "erection,
demolition, repairing, altering, painting, cleaning or pointing of a building or
structure" including work necessary or incidental to one of the above enumerated
, LaFontaine v Albany Mgt.
, 257 AD2d 319). Salvaging of
product is clearly not specifically addressed by the statute and, under the
circumstances presented, cannot reasonably be viewed as necessary or incidental
to any covered activity (Schapp v Bloomer
, 181 NY 125, 128; Hutchins v
Finch, Pruyn & Co.
, 267 AD2d 809; Strunk v Buckley
, 251 AD2d
Labor Law § 241 (6) "imposes a nondelegable duty upon owners and
contractors to provide reasonable and adequate protection and safety to
construction workers" (
Comes v New York State Elec. & Gas Corp.
, 82 NY2d 876, 878).
Further, "[i]t is axiomatic that in order for plaintiff to assert a viable Labor
Law § 241 (6) claim, he must allege a violation of a regulation setting
forth a specific and concrete standard of conduct governing his working
conditions" (Welsh v Cranesville Block Co.
, 258 AD2d 759, 760). Not only
has claimant failed to allege any violation of a governing regulation in either
the claim or bill of particulars, no proof whatsoever was offered at trial
regarding what, if any, regulation was applicable and the manner in which any
obligation imposed thereunder may have been disregarded. Given the failure to
either allege or prove such a violation the claimant's cause of action premised
upon Labor Law § 241 (6) must be dismissed (Ross v Curtis-Palmer
, 81 NY2d 494); Samuel v A.T.P. Development Corp.
____ AD2d ____, 714 NYS2d 729).
Section 200 of the Labor Law codifies the common-law duty of an owner or
employer to provide employees a safe place to work (
Yong Ju Kim v Herbert Constr. Co.
, 275 AD2d 709; see Jock v
, 80 NY2d 965, 967) and it applies to owners, contractors or their
, Russin v Picciano & Sons
, 54 NY2d 311). It is
well settled that "[i]n order to impose liability under Labor Law § 200,
as well as common law negligence, it must be shown that 'the owner exercised
some supervisory control over the operation and had actual or constructive
notice of the alleged unsafe condition that caused the accident' " (Bush v
, ____ AD2d ____, (2001 WL 27324 [N.Y.A.D. 3 Dept.]; quoting
Hutchins v Finch, Pruyn & Co.
, 267 AD2d 809, 810, lv denied
NY2d 762). Claimant's testimony demonstrates that neither the Thruway
Authority's representative (Monchino) nor employees of the New York State Police
or Department of Transportation directed or controlled or attempted to direct or
control claimant's activity at the scene nor did any State employees at the
scene supervise his attempt to right the trailer by cutting the straps which
secured the hives to the trailer. It is well established that when an injury
results from a dangerous condition arising from the contractor's methods and the
owner exercises no supervisory control over the operation no liability attaches
(Yong Ju Kim v Herbert Constr. Co.
at 712). Claimant
testified that he himself proposed the cutting of the straps which secured the
hives to the trailer to the Thruway Authority's representative (Monchino) who
responded by saying "[d]o whatever you have to do." Such assent by Monchino to
the claimant's proposed action did not constitute "supervisory control over the
injury producing work claimant was performing" (Curley v Gateway
, 250 AD2d 888). Claimant supplied his own tools to cut the
straps, worked at his own pace and at the time of his injury was working alone
on the bee and hive recovery. At best claimants' proof demonstrates a
"retention of inspection privileges or a general power to supervise and not the
kind of control sufficient to impose liability on an owner" (Dumoulin v Oval
Wood Dish Corp.
, 211 AD2d 883, 886; Tambasco v Norton Co.
, 207 AD2d
618, 621-622). The absence of proof establishing supervisory control
requires the Court to grant the defendants' motion to dismiss the Labor Law
§ 200 and common law negligence causes of action (see
, Monroe v
, 249 AD2d 650; Bush v Williams
Claimant also seeks to predicate liability upon the State's failure to warn him
of the danger of his activity in attempting to right the truck. Claimant's
presence at the scene for approximately six hours prior to his injury and his
active involvement in the truck and cargo recovery operation, including the
failed attempt to right the trailer, suggest to the Court that claimant was
aware or should have been aware of the danger posed by his proposal to free the
load in an effort to right the trailer. He was aware of the load's tremendous
weight having admittedly observed the gouging of the roadway by the tow trucks'
outriggers on the unsuccessful attempt to right the trailer. Common sense
dictates that the freeing of such weight by cutting the straps which held it to
the trailer would likely cause an immediate and arguably powerful shifting of
the unloaded trailer.
It is well established that landowners have a general duty to maintain their
property in a reasonably safe condition so as to prevent the occurrence of
foreseeable injuries (
, Basso v
Miller, 40 NY2d 233; Dunbar v NMM Glens Falls
, 263 AD2d 865). Encompassed within the duty is the duty to warn of
potential dangerous conditions existing thereon, be they natural or artificial
(Sodler v Town of Hurley
, 2001 WL 112219 [NYAD 3 Dept]). This duty,
however, extends only to conditions which are not known or readily observable
(Tarrazi v 2025 Richmond Ave. Assocs.
, 260 AD2d 468). A landowner owes
no duty to warn of conditions that are in plain view, easily discoverable "by
those employing the reasonable use of their senses" (Tarricone v State of New
, 175 AD2d 308, 309, lv denied
78 NY2d 862). In those instances
"the condition is a warning in itself" (Duclos v County of Monroe
AD2d 925; Thornhill v Toys "R" Us NYTEX
, 183 AD2d 1071).
Comeau v Wray
, 241 AD2d 602,603, the Third Department held that
"landowners, who have or should have reason to expect that persons will find it
necessary to encounter the obvious danger, owe a duty of reasonable care to
either warn such persons of the danger or to take other reasonable steps to
protect them from it..." (see also
, Sodler v Town of Hurley
WL 112219, [NYAD 3 Dept]). In this case it cannot be said that the defendant
had the requisite knowledge of the allegedly dangerous condition of the flatbed
trailer necessary to establish the duty to warn imposed in Comeau v Wray
. The testimony of Mr. Monchino and others established that the
presence of the bees severely limited the ability of all but the beekeepers in
their protective clothing to move about the accident scene. In fact, Monchino
was unable to leave his car and could converse with the claimant only through a
closed or partially open car window. Under these circumstances, the defendants
did not possess the knowledge of a dangerous condition, which in this case was
not a fixed condition but rather was transient in nature, sufficient to
establish liability on the part of the defendants for failure to
Under the circumstances present in this case the Court finds that the
defendants had no duty to warn the claimant of the dangers inherent in his
proposal to cut the straps holding the hives since such danger was both open and
obvious and claimant was "expressly aware of the danger posed" (
, Tarrazi v 2025 Richmond Ave. Assocs.
For the reasons stated above, the defendants' motion to dismiss is granted and
the claim is dismissed. The derivative claim of claimant Nancy Dreisacker which
is dependent upon the viability of her husband's claim is likewise dismissed.
The Clerk shall enter judgment in accord with this decision.