WASZAK v. STATE OF NEW YORK, #2002-005-012, Claim No. 87776
Labor Law claim dismissed.
IN THE MATTER OF THE CLAIM OF AUDREY A. WASZAK
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
DONALD J. CORBETT, JR.
Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLPBy: Richard P. Weisbeck, Jr., Esq.
Eliot Spitzer, Attorney General
By: Rupp, Baase, & Pfalzgraf, LLCBy: R. Anthony Rupp, III, Esq.
September 24, 2002
See also (multicaptioned
On June 17,1991, Claimant, Audrey A. Waszak, was allegedly injured while
engaged in construction work at the Albion Correctional Facility (Albion). She
seeks to impose liability on the State of New York, the owner of the premises,
by claiming that the State negligently failed to provide her with a reasonably
safe place to work in violation of Labor Law §§200 and 241(6).
Defendant earlier moved for summary judgment dismissing all allegations of
liability as against it under the Labor Law. By decision dated February 9,
1999, I granted Defendant's motion for summary judgment dismissing all causes of
action except for the cause of action based upon Labor Law §241(6), and 12
Defendant appealed the denial of that part of its summary judgment motion
seeking to dismiss the cause of action under §241(6) insofar as it was
based on alleged violations of 12 NYCRR 23-1.23 (a) and (b). Claimant
cross-appealed from my dismissal of the causes of action under Labor Law
§§200 and 241(6) insofar as the latter was based on alleged violations
of 12 NYCRR 23-1.7(d), (e) and (f) and 23-4.3.
the Fourth Department modified my order by reinstating the cause of action under
§200, noting that a triable issue of fact existed concerning whether the
Defendant had the requisite supervision and control over the work and work site.
The Fourth Department further modified my order by granting summary judgment
dismissing the cause of action under §241(6) insofar as it was based on a
violation of 12 NYCRR 23-1.23(a), holding that this regulation was, as a matter
of law, inapplicable to the accident as described.
In addition, the Fourth Department noted that the cause of action under
§241(6) was "properly sustained" insofar as it alleged a violation of 12
NYCRR 23-1.23(b), which governs the slope of earthen ramps and runways. In this
regard, the Fourth Department held that a triable issue of fact existed as to
whether the Defendant violated this regulation depending upon whether the fall
occurred on the ramp. Finally, the Fourth Department held that the Court of
Claims had "properly determined that the remaining regulations relied upon by
claimant [12 NYCRR 23-1.7(d), (e) and (f), and 23-4.3] are inapplicable." Thus,
this matter proceeded to trial solely on the causes of action under Labor Law
§200 and Labor Law §241(6) insofar as it alleged a violation of 12
During the first day of trial, a question arose concerning whether Claimant had
amended her bill of particulars and provided updated medical authorizations to
Defendant in compliance with my discovery order dated August 2, 1999, and filed
August 19, 1999. Because all of the discovery questions pertained to future
proof on medical issues, I bifurcated the trial and proceeded with proof solely
on the issue of liability.
THE WORK SITE
The claim accrued on June 17, 1991, while Claimant was working as a carpenter
for the Pike Company (Pike) on a project to construct a medium security annex to
the Albion Correctional Facility (Exhibit W). In April or May of 1991, when
Claimant first started working for Pike, there were several different buildings
that were under construction (Exhibit Y). Claimant worked on various crews and
on several different buildings throughout the weeks preceding her
On the day of the accident, Claimant was assigned to erect wooden frames to be
used in the construction of walls in a bar screen facility, which was part of
the sewage filtering system being installed at the prison. Prior to the date of
the accident, a concrete pad measuring approximately 30 feet by 25 feet had been
poured into the bottom of a 20 foot deep excavation. To gain access to the
concrete pad, workers would walk down an earthen ramp which ran along the
southern side of the excavation down to the area of the
Claimant was an experienced carpenter, a member of Carpenters Local 280,
Lockport, New York. On the day of her accident, she was working with another
carpenter employed by Pike, Dick Tortorice. They were instructed by a Pike
foreman to build wooden frames and then to carry the built framework down into
the excavation and to erect the wooden forms on the concrete pad to be used in
the formation of the walls for the bar screen facility.
The wooden frames were about 16 to 18 feet long, heavy, and awkward to carry.
Four people were assigned to carry the frames into the excavation. In order to
gain access to the excavation, workers used an earthen ramp which went down into
the excavation to an area near the concrete pad, alongside the footer
Steven Taylor, the Pike Project Superintendent assigned to the Albion project,
testified and estimated that the earthen ramp was 40 to 50 feet long and
extended down into the excavation to within approximately three feet of the
According to Taylor's trial testimony, such excavations are generally dug 3 to
5 feet bigger than the concrete pad to give the workers room to build the forms
and room to insert kickers into the embankment to provide further structural
support for the forms when the concrete is
After the pad was formed and the concrete was poured and hardened, the distance
between the concrete pad and the bottom of the earthen ramp remained consistent
according to Dick Tortorice, Claimant's partner on the day of the accident. The
pad never went up to the ramp. According to Tortorice, the distance between the
concrete pad and the bottom of the earthen ramp remained consistently at between
10 and 12 feet.
On direct examination, Taylor was asked what the slope of the ramp was
generally. He was unable to give the exact slope, testifying that the best he
could remember, was, "Maybe a two on one, three on one, something like that."
Carl Gilt, Pike's carpenter foreman who was in charge of Claimant's crew, was
also asked about the slope of the earthen ramp. He could not give an estimate
as to the slope of the ramp.
Tortorice testified that he had difficulty entering and exiting the excavation
after a rainfall because the banks of the excavation would wash down onto the
ramp. He averred that the ramp would become slippery and one's feet would sink
into the mud but acknowledged that this did not affect the slope of the ramp; it
just made the ramp muddy and slippery to walk on.
Taylor testified that the earth in the area of the excavation for the bar
screen facility was a mixture of sand, clay and stone. When it rained, areas
would get muddy and slippery. On these occasions, Pike would put down stone or
Meteorological records for the month of June 1991 for the County of Orleans
indicate a total rainfall of 0.81 inches for that month (Exhibit R). They also
reflect that a total of 0.01 inches of rain was observed on June 17
th between 8:30 and 9:30 a.m. and between 7:30 and 9:30 p.m.
Claimant testified that it took four workers to carry a frame to the concrete
pad at the bottom of the excavation. On the day of the accident, Claimant, her
partner Tortorice, a laborer named Becky Frazier, and another laborer identified
only as Dick, were carrying frames into the excavation by walking the frames
down the earthen ramp. Claimant was positioned on the right hand side corner in
the back of the framework. The laborer Becky Frazier was positioned on the left
hand back corner of the framework. Tortorice was positioned on the right hand
corner at the front of the framework, directly in front of Claimant. Dick, the
fourth laborer, was positioned on the left hand side to the front of the
framework, "kitty-corner" from Claimant.
The four carried the frame down the ramp into the excavation. As the front
workers went forward with the frame onto the concrete pad, Claimant's right foot
dropped near the bottom of the footer, while her left foot remained on what I
find to be the bank of the excavation. She fell forward and caught herself on
the edge of the framework and a rebar. Her right foot slid down the mud on the
side of the embankment to the footer. As she fell forward, she felt a sharp
pain. She yelled to her partner, "Stop! Stop!" but her co-workers continued
forward. She caught herself on a rebar and the edge of the form. She then
yelled at her co-workers in anger because they had not stopped and kept walking
when she yelled stop.
Claimant testified that she was in a drop-off between the concrete pad and the
earthen ramp at the time of her accident. This drop-off varied from about three
to five feet depending upon the amount of rain which tended to wash out the
On cross-examination, Claimant testified that there had been muddy conditions,
off and on, all over the job site after it rained, but not on the day of her
accident. According to Claimant, the surface was starting to dry out on that
day. She added that the clay underneath the surface could still be damp, and if
there was mud underneath, you could slide. Claimant never fell to the ground.
She caught her hand on a piece of rebar which was located about 15 to 20 inches
in from the edge of the pad. As she was holding onto the frame and the rebar,
she was pulled forward by her co-workers.
On redirect, Claimant was asked about the sequence of events once she had
turned to go directly to the pad from the earthen ramp. She testified that when
she stepped down to follow the workers ahead of her that her right foot dropped
fast and she felt a sharp pain in her back. Her right foot landed next to the
edge of the pad and became stuck in the mud. She testified that she was pulled
forward after her right foot became stuck in the mud. Claimant acknowledged
during cross-examination that the accident occurred not because she slipped on
the mud, but because she had been pulled forward by her
Charles Palisano, Claimant's expert, is a construction safety engineer who was
employed as a consultant at the time of trial. Palisano had been employed by
the State of New York from 1960 to 1962 and from 1968 to 1975 as a safety
inspector. He testified that he was familiar with the Industrial Code of New
York, and particularly 12 NYCRR 23 as it relates to earthen ramps and
Mr. Palisano testified that the earthen ramp should have started from a 2 to 3
foot level area next to the concrete pad and then continued from there up at a
slope not exceeding twenty-five percent. Palisano opined that Rule 23-1.23(b)
had been violated, relying on his review of construction photographs marked into
evidence, Claimant's trial testimony as to the slope of the area where the
accident occurred, and upon the trial and selected deposition testimony of
Taylor and Gilt.
THE STATE'S REPRESENTATIVES
Claimant testified that she believed that Defendant had a trailer on the job
site. From time to time, she would see State officials observing the work she
was performing. According to Claimant, no State employee ever told her how to
perform her work, how to build the forms, where to walk, or how to transport the
wall frames into the excavation. The decisions to carry the forms, to construct
the forms outside the excavation, and the decision to place the plywood on the
forms down in the excavation were all made by Carl Gilt, Pike's carpenter
Gilt testified that none of the State's representatives on site ever gave
instruction or direction to any member of his crew as to how they should perform
their job duties. He also testified that none of the State's representatives
gave direction or instruction to his crew in the manner or method of
constructing forms or of transporting forms. No one from the State approached
Gilt with any specific concern relating to the bar screen facility. Both Gilt
and Taylor had responsibility for and were in charge of safety issues with
respect to the bar screen facility, according to Gilt.
In 1991, Gary Edward Cooper was an Associate Mechanical Construction Engineer
for the Office of General Services (OGS) for the State. He was the area
coordinator and was responsible for construction management of mechanical
construction for several job sites, including Albion. He was on the Albion site
once a week on average.
One of Cooper's job responsibilities was safety on the Albion site, including
safety in and around an excavation such as the bar screen facility excavation.
If Cooper observed an unsafe condition, he would report it to the
Engineer-In-Charge (EIC). Whenever Cooper inspected an excavation, he was
concerned with the angle of repose and the possibility of cave-ins. He never
conducted any type of inspection regarding the means of egress or ingress to and
The State had the authority to direct the contractor to correct an unsafe
condition and to suspend work if there was an unsafe condition or unsafe
practice occurring on the site. Cooper never exercised this authority and never
directed the contractor to stop work or to change its method of operation.
According to Claimant, Cooper never gave her any directions or instructions on
how to perform her work at Albion. The State did not have any representatives
on site whose job duties or responsibilities were solely for safety; because,
according to Cooper, "safety was placed at the concern of the contractors
Cooper would walk the site about once a week. During these walks, he was
principally interested in determining if the contractor was complying with the
job specifications. He never conducted a specific safety inspection and
testified that no one from the State ever conducted specific safety inspections.
Cooper also testified that no State representative ever directed or supervised
Claimant's activities or directed the manner in which she performed her
In 1991, Robert E. Mayer was employed by OGS as an Assistant Mechanical
He was named EIC of Albion for OGS. One of his primary responsibilities was to
coordinate the work of the various contractors so that the job would progress in
an orderly and timely fashion. According to Mayer, State employees inspected
contract work at the site, and, if a State employee saw any unsafe operation, he
or she could instruct the contractor to correct the unsafe practice and could
mandate that the work stop until the conditions were corrected. Mayer did not
recall any occasion of this occurring at Albion. Mayer also testified that the
State could direct a contractor to increase the work force or to bring in extra
equipment or materials if the State identified a contractor who was behind
schedule (Project Manual, Exhibit W).
John S. Zabranskey was employed by New York State in 1991 as Senior
Superintendent of Construction and was in charge of the construction
contractors' portion of the work. Zabranskey testified that all of the State
employees at Albion would watch for hazardous situations and if one was
observed, it would be brought up with the contractor's
Labor Law §241(6)
Section 241(6) of the Labor Law imposes a non-delegable duty upon owners and
contractors to provide reasonable and adequate protection and safety to
construction workers (
Comes v New York State Elec. and Gas Corp.
, 82 NY2d 876). Because this
duty is non-delegable, the injured party need not show that the owner or
contractor exercised supervision and control over the work being performed
(Long v Forest-Fehlhaber
, 55 NY2d 154).
In order to establish a cause of action under §241(6), the injured party
must allege and prove that the owner or contractor violated a rule or regulation
of the New York Industrial Code, which sets forth a specific standard of
conduct, as opposed to a general reiteration of common law principles (
Ross v Curtis-Palmer Hydro-Elec. Co.
, 81 NY2d 494). The violation of
such a rule or regulation, once proven, does not establish negligence as a
matter of law, but rather is merely some evidence of negligence for the
fact-finder to consider with other relevant evidence (Allen v Cloutier
44 NY2d 290; Rizzuto v Wenger Contr. Co.,
In addition, the injured party must prove that violation of the specific rule
or regulation alleged was a proximate cause of the accident (
Ares v State of New York
, 80 NY2d 959). In this case, Claimant sought to
prove at trial that her injuries were proximately caused by the State's alleged
violation of Industrial Code 12 NYCRR
Industrial Code 23-1.23(b) in 1991 provided:
(b) Slope. Earth ramps and runways shall have maximum slopes of one in four
(equivalent to 25 percent maximum grades).
This regulation, however, is only applicable if the accident
occurred on the earthen ramp provided by Claimant's employer Pike (Waszak v
State of New York
Claimant testified that her accident occurred in an area between the earthen
ramp and the concrete pad. She argues that this area was located on and was a
part of the earthen ramp. This argument is belied by Claimant's trial testimony
and by the drawing of the construction site she prepared and provided to her
counsel (Exhibit 14). Claimant's own drawing shows where the earthen ramp ended
and where the accident occurred. These two areas are clearly distinguishable on
Claimant's drawing and establish that the accident did not occur on the ramp,
but rather in an area between the ramp and the concrete pad.
Palisano's testimony as to a purported violation of Rule 23-1.23(b), was based
upon his opinion that the earthen ramp should have started closer to the pad and
then continued upward from there, encompassing the area where the accident
occurred. Section 241(6), however, is regulation-specific. Palisano could
point to no regulation requiring ramps to start immediately next to a concrete
pad, and Rule 23-1.23(b), the only regulation before me, does not mandate where
earthen ramps should start or what areas they should encompass. This regulation
merely governs the slope of existing ramps. Because the evidence adduced at
trial established that the accident did not occur on the existing ramp, but in
an area between the ramp and the pad, Rule 23-1.23(b) is simply inapplicable
Waszak v State of New York
at 917; Doty v Eastman Kodak
, 229 AD2d 961, lv dismissed in part and denied in part
, 89 NY2d
Labor Law §200
Labor Law §200 codifies the common law duty of an owner and contractor to
provide a safe place to work (
Allen v Cloutier Constr. Corp.
, 44 NY2d 290). An owner is
not liable when the injury is caused by some defect or danger in the
contractor's manner or method of carrying out the work if the owner did not
exercise supervisory control over the injury-producing activity (Comes v New
York Elec. and Gas Corp.
, 82 NY2d 876; Lombardi v
, 80 NY2d 290). The supervisory control necessary to impose liability
entails more than general supervisory control, presence at the work site, or
authority to enforce safety standards (see e.g. Soshinsky v Cornell
, 268 AD2d 947). An owner's actual or constructive notice of the
allegedly unsafe manner in which the work was carried out is insufficient by
itself to establish liability under §200 (Comes v New York State Elec.
and Gas Corp.
; Rapp v Zandri Constr. Corp.
, 165 AD2d
When the injury is instead caused by a dangerous or defective condition of the
premises, liability under §200 attaches to an owner who exercises
supervisory control over the premises and has either created or has actual or
constructive notice of the dangerous or defective condition (
Bidetto v New York City Housing Auth.
, 25 NY2d 848; Whitaker v
, 75 NY2d 779).
In the present case, the evidence establishes that the accident was caused by
the manner and method by which Claimant carried out her work. It was Claimant's
employer Pike (1) who solely instructed Claimant and her partner to build the
frame that was to be used in constructing the walls for the bar screen facility
at the top of the excavation, and (2) who solely instructed the Claimant and her
co-workers to carry the heavy and awkward frame once erected down the ramp into
the excavation and onto the concrete pad by hand. The State neither directed nor
controlled this manner and method of transporting frames. The State's general
supervisory powers to ensure compliance with contract specifications and
schedules did not give it the power to, and the State did not, exercise control
over or dictate the manner by which Pike directed its employees to erect frames
and to transport them to the work site.
Claimant argues that the State should be held liable under §200 and cites
Rizzuto v Wenger Contr. Co.
, and Iacampo v State of New
, 267 AD2d 963 in support. In Rizzuto
, the plaintiff, a plumbing
foreman and supervisor of a subcontractor of the defendant general contractor,
was injured when he slipped on diesel fuel that sprayed into the work area when
the property owner's employees were pressure-testing an underground storage tank
in the area. In reinstating the §200 cause of action dismissed on summary
judgment, the Court of Appeals found critical the testimony of defendant general
contractor's vice-president and secretary, to wit, that defendant was
responsible for coordinating the work area with the owner and the subcontractors
to ensure that the work area would not be used by the owner while the
subcontractors were in the area. The Court of Appeals concluded that a triable
issue of fact existed as to whether defendant had the requisite control over the
work site and the work of the owner and subcontractors, given defendant's
authority to exclude the owner from the work site, or to direct the
subcontractor not to work in the area while another potentially hazardous
activity, pressure-testing an underground storage tank, was taking place at the
same time in the immediate area.
Nothing in the
decision supports Claimant's argument that the State in the
present case should be liable under §200. Claimant's injuries herein were
not caused by a hazardous activity of another, the scheduling of which was
controlled by Defendant. Rather, the Claimant's injuries were caused when she
slipped into a drop-off, got stuck in the mud, or was pulled forward by her
co-workers; all scenarios arising out of Pike's sole control of the method and
manner of transporting the erected frame.
Similarly, Claimant's reliance on
Iacampo v State of New York
, 267 AD2d 963, is misplaced.
, it was undisputed that the defendant had notice that that
claimant, his fellow workers, and defendant's own employees were crossing active
lanes of traffic and that defendant had the authority to control that practice.
Based on these undisputed facts, the Fourth Department held that the Court of
Claims had properly found defendant liable under
Claimant here argues that the State's engineers had actual knowledge that
Claimant and her co-workers had to traverse a muddy, unsafe and improperly
constructed earthen ramp which had a vertical drop-off, while carrying
cumbersome forms to the base of the excavation. Claimant further argues that
the State had the authority to control the work site and ensure that a safe ramp
was in place.
This argument is without merit. As noted earlier, the overwhelming weight of
credible evidence established that the accident did not occur on the earthen
ramp. Moreover, there is no evidence that any State representative (1) ever
observed frames being carried down the ramp by hand; (2) ever observed a
drop-off near the concrete pad or mud in the area between the ramp and the pad;
(3) ever noticed any unsafe practice on the work site, and (4) the State could
not predict that Claimant's co-workers would pull her forward after she asked
them to stop. Finally, contrary to Claimant's argument, the State did not have
the authority to direct or control the manner and method by which Claimant's
employer Pike chose to direct its employees to transport frames into the
excavation and onto the pad.
Based on the foregoing, Claimant's cause of action pursuant to Labor Law
§241(6) must be dismissed on the ground that the accident did not occur on
the earthen ramp and thus 12 NYCRR 23-1.23(b) was not violated. In addition,
the cause of action under Labor Law §200 is also dismissed on the ground
that the accident occurred as a result of the manner and method used by the
Claimant of transporting the frame to the pad, an activity which was solely
directed and controlled by Claimant's own employer Pike.
Accordingly, the claim is dismissed in its entirety. All motions heretofore
not decided are denied.
Let judgment be entered accordingly.
Rochester, New York
HON. DONALD J. CORBETT, JR.
Judge of the
Court of Claims
Waszak v State of New York
, 275 AD2d
Page 56 of the trial transcript indicates that
Claimant testified that the earthen ramp went down "to the area of the path."
This is an error. Consistent with my recollection, the tape recorded during
trial reveals that Claimant testified that the earthen ramp went down "to the
bottom of the pad
" (emphasis supplied).
TT, pp 381, 387 and 404-405. TT followed by a
number(s) refers to the corresponding page(s) in the trial transcript.
TT, pp 309-310 and 379.
Mayer's deposition testimony was admitted into
evidence as Exhibits 68 and XX.
Zabranskey's deposition testimony was admitted
into evidence as Exhibits 67 and YY.
In her post-trial briefs, Claimant attempts to
revitalize her §241(6) action by continually overlooking that her cause of
action as previously predicated upon alleged violations of Industrial Code Rules
12 NYCRR 23-1.7(f), 23-4.3 and 23.1.23(a), had been dismissed by the Fourth
Department (Waszak v State of New York
, 275 AD2d 916). A
review of Claimant's papers submitted on summary judgment, together with the
bill of particulars attached thereto, establishes that these same regulations
were previously before me and the Fourth Department, and that they were
specifically, and succinctly, dismissed by the Fourth Department at that time.
They may not be resurrected here.
Because I have found that the accident here
did not occur on the ramp, I need not determine the degree of the ramp's