Claimant was originally represented by other counsel with respect to a workers'
compensation claim against Keeler, his employer. When current counsel was
retained, Claimant sought and obtained permission to file and serve a late claim
by my Order dated January 7, 1999. The claim premised liability on allegations
of negligence and violations of Labor Law §§ 200, 240 and 241(6).
Claimant subsequently moved for partial summary judgment under §240 and
Defendant cross-moved to dismiss the claim under this same section of the
Labor Law. In my Order dated March 25, 2002, I denied Claimant's motion and
granted Defendant's cross-motion, dismissing all allegation relying upon
§ 240. Trial on the remaining issues of liability ensued.
Claimant testified that he was instructed by his boss, Raymond Scroger, to
reattach the tailgate to the back of a 10-wheel dump truck so that he could haul
a load of stone for the roadway. To accomplish this, a five-foot chain was
connected to the bucket of the Badger through a small ring on the bucket. The
other end of the chain was connected to this 1500 pound tailgate. Just before
the accident occurred, Claimant was in the back of the dump truck. His
intention was to slide the tailgate into the slot or groove on the truck and
then to secure it by inserting pins into the tailgate.
According to Claimant's testimony, his co-employee, Norman Comunale, operated
the Badger and lowered the tailgate which was affixed to the bucket of the
Badger until the tailgate was about a half-inch above the bed of the dump truck.
Claimant placed his right hand on top of the tailgate and attempted with his
left hand to center one of the pins which would secure the tailgate in place.
When the pin would not go into the slot, Claimant asked Ray Scroger to get the
pry bar from the cab of the dump truck. Immediately thereafter, the bucket
separated from the arm of the Badger and struck Claimant's right hand. The
bucket then fell to the ground. Claimant testified that he saw the bucket on
the ground and that it was still attached to the chain which was still attached
to the tailgate. Claimant did not know what caused the bucket to come free of
Scroger was a foreman for Keeler at the time of the accident. His crew,
consisting of a flagman, a machine operator and two laborers, was removing trees
that were in the way of a ditching job needed for drainage. Sometime before the
accident, the tailgate of the ten-wheel truck that Claimant drove was removed to
accommodate tree stumps and brush. In mid-afternoon, a decision was made to
reinstall the tailgate. In order to do this, it was common practice to attach a
chain to the tailgate and to the bucket of the Badger. Scroger did not remember
who actually affixed the chain.
Scroger testified that Comunale, the Badger operator, raised the tailgate and
swung it into position above the bed of the dump truck, and then lowered it to a
position above the slots. Claimant waited in the bed of the truck to guide the
tailgate into place, while Scroger went to the cab of the dump truck to get the
Scroger testified that there were two buckets which could be attached to the
arm of the Badger. One was a digging bucket that was wider and had teeth for
ditching and fine grading. The other was a grading bucket which was a bigger
shovel-type bucket with a blade on its front, used for scraping flat surfaces.
Scroger estimated that the buckets weighed about 500 or 600 pounds each. The
grading bucket was attached to the arm of the Badger at the time of the
In order to change buckets, Scroger testified that a T-pin with a spring clip
was pulled to unlock the bucket which then could be uncoupled from the arm of
the Badger. To reattach the grading bucket, the latch, an L-shaped yellow bar,
is pushed in and the T-shaped pin locks the bucket into position. Once
attached, the operator would usually raise the bucket off the ground and shake
it to make sure that it was latched tightly.
According to Scroger's testimony, prior to June 3, 1996, Keeler had trouble
with the grading bucket disengaging unexpectedly from the arm of the Badger
twice during normal ditching activities. On both such occasions, Scroger called
the shop and told the shop foreman, Larry Hill, that the latching pin kept
coming loose, allowing the bucket to disengage. Scroger believed that the
Badger was checked out after he voiced his concerns and before Claimant's
Bob McKay, Service Manager for Monroe Tractor & Implement, Co., Inc.
(Monroe), testified that the Badger was loaned to Keeler by Monroe in June of
1995 under a rental-purchase agreement, and approximately six months later, was
purchased outright by Keeler. Monroe recommended that purchasers have periodic
service or inspection done by its service department. McKay did not know if
Monroe's service department had ever serviced or inspected Keeler's
At Keeler's request, McKay inspected the Badger involved in this accident on
June 10, 1996. At that time, McKay observed that the gap under the head of the
adjusting bolt was larger than indicated in the operator's manual (Exhibit 28A).
The gap was approximately 1 to 1½ times the thickness of the existing
washer. In spite of this gap, however, McKay was unable to make the bucket
disengage from the arm of the Badger. He added a 1¾ inch washer to tighten
up the latch mechanism, an adjustment which made a notable difference in the
amount of motion between the bucket and the quick latch attachment. The service
protocol in the operator's manual recommended that the bolt be backed out until
it contacted the latch lever. The service protocol then indicated that the gap
should be measured and an appropriately thick washer should be added to
compensate for wear. According to the manual, this should be done when the
bucket or attachment is loose.
On cross-examination, McKay testified that it was his understanding that the
latch lever was in the open position after this accident. To McKay, that meant
that the latch lever had been pulled out.
Comunale, the Keeler operating engineer who was operating the Badger being used
to reinstall the tailgate to the dump truck, testified that any type of hoisting
equipment could have been used to reinstall the tailgate. Comunale testified,
as had Scroger, that there were two types of buckets which could be used on the
Badger, a 30-inch wide digging bucket used for digging hard material or for
general excavation, and a 6-foot grading bucket which had a smooth edge for
On the day of the accident, Comunale changed the bucket about ten minutes
before the accident occurred with the help of Dick Slate, another Keeler
laborer. According to Comunale, Slate performed the manual attachment of the
new bucket properly because Slate had done it often and was well versed in the
procedure, and because Comunale tested the attachment by manipulating the bucket
with the levers so that the bucket shook. Comunale testified that the bucket
would have come loose during this safety check if it had not been adequately
attached by Slate.
According to Comunale, the bucket disengaged from the arm because of a wear
problem with one of the parts which was out of tolerance. Comunale drew four
lines on a photograph (Exhibit 21) indicating where the so-called saddle sits on
one of two large pins. When the saddle does not sit tightly on the pin, a space
or gap is created which causes a rattle. This space or gap is the result of
wear, from daily use.
Comunale testified that approximately three weeks before Claimant's accident,
he became aware of a problem with the Badger's attachment mechanism when he was
scooping blacktop out of Claimant's dump truck by using the grading bucket. At
one point when it was about two to three feet off the ground, the grading bucket
came off the arm of the Badger as Comunale was in the process of opening the
bucket to let the blacktop out. On other occasions prior to this accident,
Comunale noticed that the bucket was loose.
On the prior occasion when the grading bucket fell off the arm of the Badger,
Claimant, Ray Scroger and another laborer were present. At that time, Comunale
overheard Scroger call Larry Hill, the master mechanic who runs Keeler's
maintenance and repair shop, and report the problem. Comunale heard Hill reply
over the two-way radio that he would take care of the problem. The next day,
Comunale personally called Hill to inquire when the problem would be addressed,
and made several additional inquiries as to when the problem would be fixed to
Hill and to Tom Keeler, the head superintendent. Comunale continued to use the
Badger on a daily basis up to the date of this accident even though the problem
with the Badger had never been fixed.
In order to attach the bucket to the arm of the Badger, Comunale testified that
the first step is to lower the back portion of the saddle until it becomes
engaged on top of the rear pin. The saddle is then lowered more until it
becomes engaged on the front pin of the locking mechanism. Finally, the yellow
bar or latch is closed and the T-shaped or plunger pin is put down, thus locking
the bucket in place.
Comunale attended a meeting to try to determine the cause of this accident
along with Henry Bowman (a mechanic), Tom Cummings (job superintendent), Mark
and Thomas Keeler, as well as representatives of the State and from Keeler's
insurance company. Comunale told this group that he inspected the latch
mechanism after the accident and that the latch was still closed.
According to Comunale, the bucket was not loose at the time of the accident or
at the meeting to discuss the accident, because he had made an alteration the
day after the bucket fell off the arm the first time, about three weeks prior to
the accident. During this alteration, Comunale added a shim to the T-shaped
plunger, which he described as a metal piece located beneath the spring which is
beneath the metal plunger. This procedure, known as shimming, puts more
pressure on the plunger which, in turn, holds the pin tighter into the
In the shop, Comunale testified that there was a procedure called hard facing
to repair a looseness problem whereby a very high heat penetration welding rod
is used to build up the tolerance so that the saddle is tight to the pin. This
was the procedure which Comunale wanted the shop to perform on the Badger after
the bucket fell off the arm, but before this accident.
Richard Pikul, an expert consulting Civil Engineer, testified for the Claimant.
In his opinion, the bucket fell off the arm of the Badger because the quick
disconnect mechanism released and allowed the locked pin of the bucket to
come free. In his review of the maintenance records of the Badger, he did not
find any reference or indication that the quick disconnect mechanism had
received any maintenance or had ever been repaired.
It was Pikul's opinion that the bucket could have become disconnected from the
arm of the Badger when the locking mechanism was in an open or locked position.
Pikul testified that if the latch lever pin was not pushed in or if it had
become dislodged due to debris in the hole, then the hinge locking latch could
just swing into an open position by gravity. Then, if the operator attempted to
extend the boom, that movement could have been enough to pull the bucket loose
and off the upper pin. During the lifting of the tailgate, Pikul testified that
the bucket is curled back under toward the operator so that the chain on the
hook can hang down. With the bucket in this position, the operator can not see
the lower pin locking mechanism and can not tell if the lower pin is in the
latch or not, and thus can be fooled into thinking the mechanism is
In Pikul's opinion, 23 NYCRR 23-1.5 (c) was violated because the Badger
operator was allowed to continue using the excavator even though his employer,
Keeler, knew or should have known that the bucket latch mechanism was not
properly adjusted as the bucket had disengaged prior to this accident.
According to Pikul, the Badger was not in a safe working condition because
nothing had been done to correct this problem. It was also Pikul's opinion that
23 NYCRR 23-9.2 (a) was violated because Keeler had failed to do the repairs or
maintenance on the Badger that were necessary due to Keeler's actual knowledge
of at least one previous disengagement. Finally, it was his opinion that 23
NYCRR 23-9.2 (b)(1) was violated because Keeler allowed the Badger to be used in
an unsafe manner when it permitted its operator to continue to use the Badger
knowing that the bucket could disconnect. Pikul opined that the Badger had a
maintenance problem and that this lack of maintenance or repair was a direct
cause of Claimant's injuries.
On cross-examination, Pikul agreed that if the latch lever had remained closed
and was closed after the bucket had fallen, it was possible that the latch lever
was not properly engaged in the first place, and this would be the error of the
operator or of the person who installed the bucket. Pikul also agreed that the
spring-loaded pin could be exposed to earth or get jammed or jiggle loose when
the bucket was being used for grading. In that case, friction from the actual
grading would put pressure on the pin preventing the latch lever from moving
even if the pin was loose. If the function of the bucket was changed and it was
no longer used for grading, the bucket could then come loose and fall if the
spring-loaded pin had become loose during grading.
Pikul also acknowledged that the bucket could be improperly connected and the
operator could lift the bucket off the ground, shake it, and still not know that
the bucket was not properly connected. According to Pikul, this could occur if
the bucket was picked up while it was in a curled position, and here the bucket
would have been in a curled position when Comunale lifted the tailgate.
On redirect, Pikul could not conclude whether the latch was open or closed
after the accident. It did not matter to him which position the lever was in
after the accident because of the prior problem with looseness and at least the
one prior incident when the bucket disconnected, all of which should have put
Keeler on notice of a problem which should have been discovered and rectified by
maintenance, adjustments, or by taking the Badger out of service until the
problem was rectified.
Larry Hill, a shop foreman for Keeler for 27 years, testified for the State.
He testified that he was never told by anyone that the bucket of the Badger had
come off unexpectedly prior to this accident, that he was not advised before
this accident of any complaints concerning the pin, and that he was not advised
after this accident that the bucket had come off unexpectedly at least one time
previously. Hill also testified that no one in his shop made any repairs to the
pin mechanism after this accident. On cross-examination, Hill admitted that his
testimony in this regard was based solely on his memory because he did not
review any maintenance records to determine if the Badger had been brought to
the shop for repairs and because notes regarding calls from the field about a
problem with a machine were not kept. Hill also testified that the Badger was
still under warranty at the time of this accident, and, if there had been a
problem with the Badger before the accident, it would have been referred to
Monroe for repairs under the warranty.
Thomas Keeler, Vice President of the Keeler Construction Company, testified
that he was never advised before this accident that the bucket of the Badger
excavator was loose or was unexpectedly disengaging. He also testified that
after this accident, he was not advised that there had been a problem before
this accident with the bucket being loose or with the bucket unexpectedly
On cross-examination, Thomas Keeler testified that he sent someone to
investigate the Badger the night this accident occurred. He did not know,
however, whether the machine was taken out of service, or whether it was taken
to the shop or left on site. He was also not aware before this accident that
any maintenance was required on the Badger's quick release, and testified that
Keeler had no records with respect to any maintenance, adjustments or repairs of
the quick release mechanism.
Thomas Keeler testified that he knew that Comunale, the Badger operator, was
inspecting the Badger on a daily basis and that he performed certain adjustments
to the quick release. According to Keeler, Comunale had the authority to
inspect the Badger and to determine what repairs were needed. Keeler did not
know, however, if Comunale was familiar with the manufacturer's recommendations
for adjustments of the quick release.
James Keeler, President of Keeler, testified that neither before nor after this
accident did anyone advise him that the bucket of the Badger had disengaged
unexpectedly before the accident occurred.
In making these findings of fact, I relied upon the credible testimony of
Norman Comunale, the Badger operator, Ray Scroger, the job foreman, and Bob
McKay, the Monroe Service Manager. Comunale testified as to the looseness of
the bucket before this accident and of his attempt to correct the looseness by
shimming the spring-loaded T-shaped pin. Comunale and Scroger both testified
that they had witnessed the bucket disengage from the arm of the Badger shortly
before this accident and of their attempts to get the Keeler shop to perform any
repairs or maintenance necessary to correct this
McKay testified that he had examined
the Badger a few days after this accident and discovered a wear gap under the
head of the adjusting bolt of the quick latch mechanism, which could have and
should have been corrected by the addition of a washer pursuant to the
instructions in the Operator's Manual.
also testified that it was his understanding that the latch lever was in the
open position after the accident (See also
At the conclusion of Claimant's proof and again at the conclusion of all of the
proof, Defendant moved to dismiss the claim on the ground that Claimant had
failed to make a prima facie showing of liability because there were several
alternative explanations for this accident, none of which was more likely to
occur than any other, and which did not all involve a violation of 12 NYCRR
23-9.2(a). I do not agree.
One of the alternative explanations for this accident suggested by Defendant
was that the laborer, Dick Slate, improperly attached the grading bucket before
this accident. This explanation is pure speculation. No evidence was proffered
to establish that the bucket was improperly attached. Moreover, Comunale
testified that this manual attachment was done properly because he tested the
attachment by manipulating the bucket to see if it would fall off, and because
Slate had done the attachment many times before and was very familiar with the
procedure. The other alternative explanation suggested by Defendant was that
dirt or debris somehow dislodged the spring-loaded T-shaped pin, allowing the
latch lever to open and the bucket to fall. This putative explanation is also
based on pure speculation. Once again, no evidence was proffered to establish
or even suggest that any dirt or debris was in the bucket or embedded in the
spring-loaded T-shaped pin at the time of this accident.
It is well established that there is no liability where the proven facts "show
that there are several possible causes of an injury, for one or more of which
the defendant was not responsible, and it is just as reasonable and probable
that the injury was the result of one cause as the other" (Ingersoll v
Liberty Bank of Buffalo, 278 NY 1,7). Claimant need not, however, refute
every remote possibility, like the alternative explanations proffered by
Defendant. Rather, Claimant need only show facts and conditions from which the
negligence of the defendant may be reasonably inferred (Stubbs v City of
Rochester, 226 NY 516; Bernstein v City of New York, 69 NY2d 1020).
Claimant has more than met his burden in this regard. Here, the reasonable
inference to be drawn from the facts is that the bucket fell due to a problem
with the quick release mechanism, a problem known by Keeler prior to this
accident, which could have and should have been repaired, or the Badger should
have been taken out of service, all in derogation of 12 NYCRR 23-9.2(a).
Defendant, as an owner, is responsible under §241(6) of the Labor Law for
Keeler's violation of § 23-9.2 (a) regardless of the fact that the
Defendant did not exercise control or supervision over the work being performed
(Crawford v Williams, 198 AD2d 48; lv denied 83 NY2d 751).
Finally, no evidence was produced at trial to establish that the Claimant was
in any way responsible for his own injuries. Accordingly, I deny Defendant's
motion to dismiss. I find that the violation of 12 NYCRR 23-9.2 (a) was the
proximate cause of Claimant's injuries and that the Defendant, as owner (Labor
Law § 241 [b]), is fully answerable in damages.
All motions not heretofore ruled upon are now denied.
The Clerk is directed to enter an Interlocutory Judgment and is further
directed to transfer this matter to another judge of this Court for the purpose
of scheduling a trial on damages.