New York State Court of Claims

New York State Court of Claims

SPINKS v. THE STATE OF NEW YORK, #2002-005-023, Claim No. 99790


The State is liable in damages as an owner under §241(6) of the Labor Law for its contractor's negligence in failing to properly service and repair a Badger hydraulic excavator in violation of Industrial Code 12 NYCRR 23-9.2(a). This negligence was a proximate cause of the injuries sustained by the Claimant when three fingers of his right hand were crushed by a grading bucket which disengaged from the arm of the Badger.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Gross, Shuman, Brizdle & Gilfillan, PC
By: Howard B. Cohen, Esq. Harry James Forrest, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Sugarman Law FirmBy: Brian Sutter, Esq.
Third-party defendant's attorney:

Signature date:
May 12, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose on June 3, 1996, when a large metal bucket disconnected from the arm of a Badger hydraulic excavator (Badger), crushing three fingers on the right hand of the Claimant, Charles L. Spinks.[1] At the time of the accident, Claimant was employed by Keeler Construction Company (Keeler) as a dump truck driver and general laborer. Keeler had been hired by the New York State Department of Transportation (DOT) as the general contractor on a project to widen a portion of Route 63 near Batavia in Genesee County. As part of the project, it was necessary to remove trees from adjoining property. The accident occurred as Claimant and his co-employee, Norman Comunale, were attempting to reattach the tailgate of Claimant's dump truck which had been disconnected to accommodate the removal of tree stumps.
Procedural History
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.

Factual Discussion

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 the arm.

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 pry bar.

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 accident.

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 accident occurred.

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 Badger.

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 finish work.

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 latch.

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 latched.

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 disengaging.

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.
Labor Law §200 and Common-law Negligence
Labor Law § 200 is a codification of the common-law duty of an owner or contractor to use reasonable care to provide workers with a safe place to work (Allen v Cloutier Constr. Corp., 44 NY2d 290). An owner is not liable, however, when the injury is caused by some defect or danger in the contractor's manner or method of carrying out the work and when the owner did not exercise supervisory control over the injury-producing activity (Comes v New York Elec. & Gas Corp., 82 NY2d 876; Lombardi v Stout, 80 NY2d 290). General supervisory authority to oversee the progress of the work or inspect the work product is insufficient to impose liability under Labor Law § 200 or under common-law principles of negligence (Alexandre v City of New York, 300 AD2d 263; Brown v New York City Economic Dev. Corp., 234 AD2d 33).

The injury-producing activity herein arose out of Keeler's method and manner of reattaching the tailgate to the back of the ten-wheel dump truck, and out of Keeler's alleged failure to maintain and repair its equipment. None of the witnesses testified to the presence of any representative of the Defendant at the time of the accident and the Claimant produced no evidence to establish that the Defendant supervised or controlled the method or manner in which this work was being performed, or exercised any control over the maintenance of Keeler's equipment. Accordingly, Claimant's causes of action under Labor Law §200 and under common-law principles of negligence are dismissed.
Labor Law § 241 (6)
Labor Law § 241 (6) 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. & Gas Corp., supra). Because this duty is non-delegable, the injured party need not prove that the owner or contractor exercised supervision and control over the work being performed (Long v Forest-Fehlhaber, 55 NY2d 154). The injured party must, however, allege and prove that the owner or contractor violated a rule or regulation of the New York Industrial Code setting 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 Constr. Corp., 44 NY2d 290, supra; Rizzuto v Wenger Contr. Co., 91 NY2d 343). The injured party must also prove that the violation of the specific rule or regulation was a proximate cause of the accident (Ares v State of New York, 80 NY2d 959).

While Claimant alleges numerous violations of the Industrial Code in his Bill(s) of Particulars, at trial he relied on only three: 12 NYCRR 23-1.5 (c)(1);[2] 23-9.2 (a), and 23-9.2(b)(1). Because the Claimant has apparently abandoned the remaining provisions he initially cited in his bills of particulars, I will review and address only those provisions on which the Claimant relies and on which proof was offered at trial.
12 NYCRR 23-1.5 (c) (1)
Regulatory provision 23-1.5 is entitled, "General responsibility of employers." The subsection of this provision relied upon by Claimant provides:
(c) Condition of equipment and safeguards.

(1) No employer shall suffer or permit an employee to use any machinery or equipment which is not in good repair and in safe working condition.

Defendant alleges that this provision establishes general safety regulations of insufficient specificity to support a claim under Labor Law § 241(6). I agree. The Fourth Department has held that the general directives encompassed in § 23-1.5 and § 23-1.5 (c) (1) are insufficient as predicates for § 241(6) liability (Webster v Wetzel, 262 AD2d 1038); Ozzimo v H.E.S., Inc., 249 AD2d 912; McGrath v Lake Tree Vil. Assocs., 216 AD2d 877; Hawkins v City of New York, 275 AD2d 634).[3] Accordingly, Claimant's claim under § 241 (6) of the Labor Law is denied in so far as it is premised on an alleged violation of § 23-1.5 and/or § 23-1.5(c)(1).
12 NYCRR 23-9.2 (b) (1)
Subpart 23-9 of the Industrial Code is entitled, "Power-Operated Equipment." The section cited by Claimant provides:
(b) Operation.

(1) All power-operated equipment used in construction, demolition or excavation operations shall be operated only by trained, designated persons and all such equipment shall be operated in a safe manner at all times.

The Fourth Department has also held that § 23-9.2 (b) is not sufficiently specific to support a cause of action under § 241(6) of the Labor Law (Webber v City of Dunkirk, 226 AD2d 1050). Moreover, this provision is inapplicable as there was no proof that Comunale, the Badger operator, was not properly trained or that he was not operating the Badger in a safe manner at the time of this accident. Further, there was no proof that a violation of § 23-9.2 (b), assuming one had been proven, was a proximate cause of Claimant's accident. Accordingly, Claimant's allegations relying upon §241(6) of the Labor Law are denied in so far as they are premised on an alleged violation of § 23-9.2 (b).
12 NYCRR 23-9.2 (a)
Last, Claimant relies upon 12 NYCRR 23-9.2 (a), entitled, "General requirements," which provides:
(a) Maintenance. All power-operated equipment shall be maintained in good repair and in proper operating condition at all times. Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement. The servicing and repair of such equipment shall be performed by or under the supervision of designated persons. Any servicing or repairing of such equipment shall be performed only while such equipment is at rest.

There is a dichotomy among the Appellate Divisions as to whether this subsection is specific enough to be a predicate of liability under § 241 (6) of the Labor Law. But the Fourth Department, whose holdings control here, has held that § 23-9.2 (a) is sufficiently specific to give rise to § 241 (6) liability (Tillman v Triou's Custom Homes, 253 AD2d 254; Webber v City of Dunkirk, 226 AD2d 1050, supra; Zacher v Niagara Frontier Servs., 210 AD2d 897). Thus, if this regulation was violated and if this violation was a proximate cause of Claimant's injuries, liability may be imposed.

After considering all of the exhibits, listening to the witnesses and observing their demeanor, I make the following findings of fact:
(1) Defendant was the owner of Route 63 and contracted with Keeler to perform 9.2 miles of asphalt resurfacing and reconstruction on Route 63 (Exhibits 1, 2 and 3);

(2) the grading bucket attached to the Badger by the quick release attachment mechanism was loose in the weeks and days just prior to this accident;

(3) the grading bucket disengaged from the arm of the Badger on at least one occasion prior to this accident;

(4) Keeler was aware of these problems with the Badger;

(5) a shim was added to the spring-loaded T-shaped plunger pin in an attempt to correct the looseness condition in the quick release attachment mechanism before this accident, and

(6) the latch lever was in the open position after this 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 problem.[4] 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.[5] He also testified that it was his understanding that the latch lever was in the open position after the accident (See also, Exhibit 6).[6]

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.

May 12, 2003
Rochester, New York

Judge of the Court of Claims

  1. [1]The claim of Flora Mae Spinks is derivative only. All references to Claimant shall, unless otherwise specified, refer to Charles L. Spinks.
  2. [2]During trial, Claimant's expert opined that 12 NYCRR 23-1.5(c) was violated. Technically, there is no 1.5 (c) regulation, but a review of Pikul's testimony makes it abundantly clear that he was referring to §23-1.5(c)(1).
  3. [3]Interestingly, in his post-trial brief, Claimant relies on two First Department cases decided in 1998 and 1996, respectively (Gonzalez v United Parcel Serv., 249 AD2d 210; McCormack v Helmsley-Spear, Inc., 233 AD2d 203) for the proposition that 23-1.5 (c) (1) has been held to be a sufficiently specific regulation upon which to predicate § 241(6) liability. Without reversing these decisions, the First Department has more recently held that 23-1.5 (a) and (c) (1) are too generic to be considered predicates for § 241(6) liability (See, Hawkins v City of New York, supra; Maldonado v Townsend Ave. Enters., Ltd. Partnership, 294 AD2d 207, decided in 2000 and 2002, respectively).
  4. [4]I give little credence to the testimony of Larry Hill, Thomas Keeler or James Keeler that they were all unaware of problems with the Badger before the accident. Persuasive however was the testimony of Larry Hill that complaints regarding equipment are not kept for any length of time. More importantly, their knowledge of prior problems was not necessary given the credible testimony of Comunale and his supervisor, who were not only aware of the problems with the Badger, but who actually witnessed the bucket disengage before this accident. Moreover, Thomas Keeler testified that Comunale had the authority to determine what repairs needed to be done and did not need to consult with Larry Hill.
  5. [5]According to the Operator's Manual, washers are to be added to the adjustment bolt to eliminate this wear gap when the bucket or attachment is loose (Exhibit 28-A).
  6. [6]In making this finding of fact, I do not give credence to Comunale's testimony that the latch lever was closed after the accident because of the overwhelming testimony regarding the problems with the Badger which existed before this accident and because Comunale admittedly went to check on Claimant's condition immediately after the accident before he checked on the latch mechanism during which time the latch lever could have swung closed.