New York State Court of Claims

New York State Court of Claims



After bifurcated trial claim brought pursuant to Labor Law § 240 (1) dismissed for failure to prove claimant was a "covered employee" and that traffic accident site was a construction or demolition site and salvaging of bee hives from overturned trailer was a covered activity. Claim brought under Labor Law § 241 (6) dismissed for failure to allege and prove violation of any specific regulation effecting working conditions. Labor Law § 200 claim dismissed for failure to prove defendant as owner of the highway exercised supervision or control over claimant's activity in seeking to recover approximately 30 million bees. Common law negligence claim dismissed on same basis

Case Information

JAMES DREISACKER and NANCY DREISACKER The Court sua sponte has amended the caption to delete the New York State Department of Transportation as a separate defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court sua sponte has amended the caption to delete the New York State Department of Transportation as a separate defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Bank, Sheer & SeymourBy: Daniel A. Seymour, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Vincent M. Cascio, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

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 do."[1]
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 it.

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 Company[2]
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 or direction.
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' proof.

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' (Whelen 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 89 NY2d 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 & Social Club, supra at 971, quoting Yearke v Zarcone, 57 AD2d 457, 459, lv denied 43 NY2d 643; see Mordkofsky v V.C.V. Dev. Corp., supra; 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 activities (
see, 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 491).
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 Hydro-Electric Co., 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 Fien, 80 NY2d 965, 967) and it applies to owners, contractors or their agents (see, 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 Williams, ____ AD2d ____, (2001 WL 27324 [N.Y.A.D. 3 Dept.]; quoting Hutchins v Finch, Pruyn & Co., 267 AD2d 809, 810, lv denied 94 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., supra, 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 Communications, 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 Bardin, 249 AD2d 650; Bush v Williams, supra).
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 (
see, Basso v Miller, 40 NY2d 233; Dunbar v NMM Glens Falls Assocs., 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 York, 175 AD2d 308, 309, lv denied 78 NY2d 862). In those instances "the condition is a warning in itself" (Duclos v County of Monroe, 258 AD2d 925; Thornhill v Toys "R" Us NYTEX, 183 AD2d 1071).
Finally, in
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, 2001 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, supra. 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 warn.
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" (
see, Tarrazi v 2025 Richmond Ave. Assocs., supra at 469).
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.

February 14, 2001
Saratoga Springs, New York

Judge of the Court of Claims

[1]All quotations are from the Court's trial notes unless otherwise noted.
[2]It is unclear whether Great West Insurance Company insured the trucking company or the bee owner but was clearly not affiliated in any manner with the State of New York or the New York State Thruway Authority.