HMIELENSKI v. THE STATE OF NEW YORK, #2002-015-570, Claim No. 103040
Claim for wrongful death of claimant's decedent at highway re-paving site
dismissed due to failure to prove liability since claimant failed to demonstrate
by admissible evidence cause of decedent's fall, speculation and conjecture
JUNE HMIELENSKI, as Administratrix of the Estate of JAMES M. DEYOE, Deceased
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
O'Connor, O'Connor, Mayberger & First, P.C.By: Dennis First, Esquire
Honorable Eliot Spitzer, Attorney General
By: Taylor & AssociatesDavid Taylor, Esquire
September 23, 2002
See also (multicaptioned
The trial of this claim which seeks to recover money damages for the conscious
pain and suffering and the wrongful death of claimant's decedent at a highway
re-paving site on September 10, 1998 took place in Albany, New York on May 29,
2002. The trial was limited to causes of action sounding in common law
negligence and an alleged violation of section 200 of the Labor
At the trial no witnesses were called. The attorneys for the parties
stipulated to the receipt of exhibits "1" and "3" through "19" and after some
discussion further stipulated to the receipt of exhibit "2." The claimant
rested upon the Court receiving the exhibits in evidence. Defense counsel then
moved to dismiss the claim based on claimant's failure to prove a prima facie
case of negligence against the defendant and rested without calling any
witnesses. The court granted the separate requests of counsel to submit post
trial briefs and the trial was concluded.
The following facts are not disputed. Claimant's decedent (James M. Deyoe) was
a foreman employed by Callanan Industries which had been awarded a contract to
resurface a number of State owned highways in Dutchess, Putnam and Ulster
exhibit 1). At the time of this tragic accident on September 10,
1998 Callanan had completed most of the work required on State Route 9W in
Esopus, New York and its employees were reestablishing the shoulders of the
roadway. That process involved the use of an excavator which graded windrow
material (i.e., grass, weeds, twigs, rocks and asphalt previously removed from
the shoulder area) back to the outside edge of the newly paved shoulder surface.
After establishing a smooth grade any excess windrow material would be loaded
onto a dump truck and hauled away.
At the time of the accident Callanan employees had just returned from a lunch
break and claimant's decedent, the project foreman, was directing or spotting a
dump truck driven by Howard Eaton, a fellow employee of Callanan, which was
backing into position to receive the excess windrow material. The decedent was
walking backwards in the northbound lane near the center dividing line of the
two lane road directing the driver through the side view mirror mounted on the
passenger side of the vehicle when he apparently fell and was run over. The
final autopsy report received in evidence as Exhibit 14 listed the cause of
death as "blunt force injuries of head and brain."
The Court notes that in addition to Howard Eaton there were at least two
witnesses to the accident; Amy K. Kelly, a Callanan flagger and Adam Walencik, a
exhibit 3). As previously noted, neither Kelly nor Walencik were
called to testify at the trial.
In attempting to prove liability claimant chose to rely largely upon
photographs taken at the scene by an unidentified photographer. The photos are
stamped on the reverse side "Troop F ID Bureau, New York State Police Crystal
Run Road, Middletown, NY 10940" (
exhibits 5, 6 and 11). Claimant also relies upon the transcript of
an examination before trial of Richard M. Gaupman (exhibit 2) and upon an
uncertified DOT accident report (exhibit 3). Although Richard Gaupman was the
New York State Department of Transportation engineer in charge (EIC) of this
project he was absent from the site when the accident happened and did not
arrive there until more than an hour subsequent to its occurrence. Gaupman
therefore could testify only to his observation of the scene upon his arrival
and could offer no testimony regarding the manner in which the accident took
place or the actual condition of the roadway at the time of the
So too, although the parties stipulated to the receipt of certain black and
white photographs depicting the scene of the accident (exhibits 5, 6, and 11)
and to laser color printer copies of other photographs of the scene (exhibit 4)
these photos were offered not merely as an aid to understanding testimony or
other evidence but as having intrinsic probative value so long as they are what
they purport to be (New York Evidence Handbook, § 9.8 Identifying Real and
Demonstrative Evidence). Here claimant seeks to prove by the admission of such
photographs that the roadway on which the decedent fell contained debris of some
kind which claimant argues was a substantial factor in causing the decedent's
accident. While it is generally true that to be admissible photographic
evidence must be authenticated or identified by testimony of a witness with
knowledge that the photographs are a fair and accurate representation of the
scene of the accident (
Catanese v Quinn
, 29 AD2d 675) such testimony can be dispensed with upon
an admission prior to trial. The Court will treat the stipulation of counsel
made on the record as tantamount to an admission of the correctness or fairness
of the photographic representations pursuant to CPLR 3123 (see
, Fisch On
New York Evidence § 142 [2d ed., 1977]).
The same treatment is being afforded other documentary evidence such as the DOT
accident report and the statements given by Kelly and Walencik to the New York
State Police which would normally require authentication in order to be
considered admissible evidence.
The standard for determining whether the instant claimant has met her burden of
proving the defendant's liability under common law negligence or Labor Law
§ 200 was set forth by the Court of Appeals in
Comes v New York State Elec. & Gas Corp.
, 82 NY2d 876, 877 where the
Section 200 of the Labor Law is a codification of the common-law duty imposed
upon an owner or general contractor to provide construction site workers with a
safe place to work. An implicit precondition to this duty 'is that the party
charged with that responsibility have the authority to control the activity
bringing about the injury' (Russin v Picciano & Son, 54 NY2d 311,
317). Where the alleged defect or dangerous condition arises from the
contractor's methods and the owner exercises no supervisory control over the
operation, no liability attaches to the owner under the common law or under
Labor Law § 200 (Lombardi v Stout, 80 NY2d 290, 295).
In the instant case claimant has attempted to predicate the State's liability
upon the presence of two Department of Transportation (DOT) inspectors (Charles
J. Siter and Robert McKenna) whose duties allegedly included overseeing the
progress of the job and keeping track of quantities of materials used. Claimant
has, however, offered no proof that the DOT inspectors directed Callanan
employees, including claimant's decedent, with respect to the manner in which
the work was performed.
It is established that neither the existence of a State contract nor the
presence of its engineer or inspector at a work site establish sufficient
control to impose liability upon the State pursuant to Labor Law § 200 or
common law negligence (
Kalofonos v State of New York
, 115 Misc 2d 692, 699 affirmed
AD2d 75; Ross v Curtis-Palmer Hydro-Electric Co.
, 295 AD2d 723,
743 NYS2d 630). In Soshinsky v Cornell Univ.
, 268 AD2d 947, the Third
Department held that "an essential precondition to liability under either
common-law negligence or Labor Law § 200 is the authority to control the
activity bringing about the injury (see
, Rizzuto v Wenger Contr.
, 91 NY2d 343, 352; Comes v New York State Elec. & Gas Corp.
82 NY2d 876, 877). Notably, an owner or general contractor's retention of
general supervisory control, presence at the worksite or authority to enforce
general safety standards is insufficient to establish the necessary control"
Here, as in the recent case of
Sainato v City of Albany
, 285 AD2d 708, although the owner retained some
general, supervisory control to ensure that the contractor was performing the
work in a safe manner it did not exercise any direct control over the
contractor's employees or the manner in which the work was performed. Under
such circumstances the State cannot be held liable pursuant to Labor Law §
200 or under the common law (see
, Soshinsky v Cornell Univ.
; see also Blysma v County of Saratoga
, ____ AD2d
____, 744 NYS2d 564).
Claimant's attorney also argued in his post-trial brief that liability pursuant
to common law negligence and Labor Law § 200 may be imposed on the basis
that the State had notice of a dangerous condition, i.e., the presence of debris
on the roadway. The Court's review of the evidence, including the photographs
of the scene, do not support the claimant's assertion in this regard. While
some of the photographs show the presence of windrow material on or near the
shoulder of the roadway (e.g., exhibit 5) the eyewitnesses placed claimant's
decedent on the passenger side of the vehicle in the northbound lane near the
center line of the newly paved roadway immediately prior to the accident. The
photographic evidence corroborates that testimony and fails to disclose the
presence of any debris in the decedent's alleged path along the center line of
the road as described by the witnesses. In the recent case of
Williams v Hannaford Bros. Co.
, 274 AD2d 649, 650 the Appellate Division
held that "[t]o sustain liability in this type of accident, the cause of the
fall must be specific and definite, speculation and conjecture being simply
, Maiorano v Price Chopper Operating Co.
AD2d 698, 699; Leary v North Shore Univ. Hosp.
, 218 AD2d 686,
The claimant has failed to establish that the State exercised any control over
the manner in which the Callanan employees performed the work of "backing up"
the shoulders. Moreover, there is no proof that the claimant's decedent's
accident was caused by a dangerous condition at the work site; let alone one of
which the State was shown to have had notice. As claimant has not established
the defendant's liability by a preponderance of the evidence the claim must be
and hereby is dismissed.
The Clerk shall enter judgment in accordance with this decision.
Saratoga Springs, New York
HON. FRANCIS T. COLLINS
the Court of Claims
An additional cause of action based on section
241 (6) of the Labor Law was dismissed on motion by decision and order dated May