LEI v. CITY UNIVERSITY OF NEW YORK, #2002-016-112, Claim No. 99848
City University found 80% liable to a student in connection with an accident
involving a welding torch in a sculpture studio.
Footnote (claimant name)
CITY UNIVERSITY OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Barton, Barton & Plotkin, LLP
By: Sherri L. Plotkin, Michael Hurwitz and Gerald C. Barton, Esqs.
Eliot Spitzer, Attorney General
By: Grace Brannigan, AAG and Gail Pierce-Siponen, AAG
November 1, 2002
See also (multicaptioned
This is the decision following the trial on liability of the claim of Man-Kit
Lei. On March 4, 1998, Mr. Lei, a student at Brooklyn College, suffered burns
to his face and upper torso when he caught fire while working on a sculpture
with an oxy-acetylene torch.
By the spring of 1998, he was in a position to work independently and according
to claimant, the arrangement with his advisor Steven Keltner was that "I would
finish one project with him that semester, and...get my grade."
Keltner, who had a masters' degree in sculpture, had been working at Brooklyn
College for twenty years and had variously held positions as a laboratory
technician, instructor and adjunct professor. At the time of claimant's
accident, his title was senior laboratory technician. He described himself as
Lei's advisor for his independent course of study.
The college's Department of Art had a space, room 106, on the first floor of
Whitehead Hall that served as its metal studio or lab, as well as rooms set
aside for work in wood and clay
(cl exh 10A). The metal lab was about 300 or 400 square feet. It had four
tables with cabinets underneath containing shelves for holding metal. One of
the tables had a brick top with an exhaust hood. There were a number of metal
cabinets with metal shelves, and also some chairs, a sink, lockers and a metal
cabinet with an enameling kiln on top of it. Fueled by a mixture of two gases,
oxygen and acetylene, each welding torch (there were two) required a pair of
tanks - - a green one for oxygen and a black for acetylene. There was also an
arc welder which runs off electric current.
As to the more technical items, Keltner continued:
"There's a bending brake...a cutting shear... a [large and small ] diarchal
bender...a band saw...a drill press...an [arc] welder...there's various tools
attached to each of these table tops and various tools hidden within these table
By the beginning of the summer of 1997, claimant had already taken at least
three sculpture classes, two of them - - Sculpture I and II - - with Professor
Karen Giusti, head of the sculpture department. In that summer, he took his
first class with Keltner, a welding course given to10 or12 students. Also
sometime during the summer, claimant began an independent study supervised by
Keltner, the purpose of which was to design, create and finish a project in
metal. When Keltner was asked about the level of assistance he would provide
claimant, he observed that this was Lei's second independent course, describing
claimant then as "pretty much an accomplished welder."
In early 1998
, claimant was well along on his sculpture project. About the size of an
armchair, two and a half feet high, "Dream" as it came to be named, was made out
of a welded metal mesh. (See the photographs that are cl exh 10T and10U). In
mid-morning of March 4, 1998, claimant had gone to Whitehead Hall to work on his
At about 10:30 a.m., Lei walked into the metal lab, which was unlocked. When
he did so, he saw Keltner, who was on the phone in his office across the hall,
and waved to the advisor. Lei explained, that as a general rule:
"We can go in anytime and work as long as we are not doing any fire.
As long as we are not welding, we can go in the room and work." But he added,
"we have to get permission or at least let him know before we start using
...the oxy-acetylene torch." Claimant was ready to use his torch, so he
left the lab, went back across the hallway and told Keltner, who nodded okay.
Lei recalled that he was wearing "a t-shirt...a black turtleneck, denim jeans,
construction boots and an old dress shirt of mine...it's cotton..." along with a
baseball cap turned backwards, and a pair of goggles:
Q. And is it proper procedure that he sees the way you're dressed before
you do your torch work? A. Yes.
Q. And did he see the way you were dressed before you did your torch work? A.
Keltner, in his testimony, confirmed that he was aware of what Lei was
wearing on that March morning and had approved it.
Lei, standing at the table which was topped with fire bricks, began using the
torch on a "different piece to add on to. ..my project."
Claimant thought he had been using the torch for about 15 minutes and
All of a sudden, I feel a little warm right there on my stomach... I
looked down...and I realized I was on fire...I tried to pat it out with my left
hand. It didn't go out... I was running around the room looking for a place to
drop and roll, but...there [were] so many things surrounding me [that I
couldn't]... So I ran out to the hallway to get Steve to help me, and his first
reaction was he tried to pat it out with his hands. It didn't work. He ran back
into the studio ...to get a fire extinguisher and [put] the fire out...
Campus public safety officer Levi Washington, who had been
situated in the lobby of Whitehead Hall (the same floor as the metal lab), heard
screams, Keltner came and got the officer, who saw a "ball of flame" coming at
him - - a person on fire. Keltner testified that he first learned of Lei's
accident when he saw him out in the hallway in flames; the advisor was 20 feet
away, engaged on the phone. He recalled that claimant ran by his office doorway
and that his upper body was on fire. Keltner tried to put the fire out with his
hands, but the fire was too extensive for that so he got a fire extinguisher,
and put out the fire, although some embers were still smoldering, which he
patted out with his hands. The entire contents of the extinguisher had been
Lei was in the metal laboratory working not only academically independently,
but physically alone as well - - there was no one else in room 106 with him, no
other students, nor any members of the college staff. Keltner testified that
ordinarily he would simply drop in and out and see what was going on. At the
critical moment, the advisor was in his office across the hall, without a clear
sight line, some 40 feet away.
The metal lab had one door, and no glass viewing
Claimant had been wearing goggles. Leo DeBobes, a safety expert who visited
Whitehead Hall four months after the accident, tellingly observed, without
You have to bear in mind that a welder is working blind. He or she can't see
what's going on around them because they have to wear a tinted lens in order to
protect their eyes against keratitis and flash burns...he can't see
...sparks...flying up against him..
Claimant also put on the stand a second expert, August Manz, long involved in
the setting of welding safety standards and the holder of 30 patents in the
field of welding.
Both experts testified, supported by the attendant exhibits and
unchallenged by the defendant, that sparks and pieces of molten metal or slag
are an unavoidable and natural result of oxy-acetylene welding. Claimant was
not in the best position, especially with the tinted glasses, to see what was
happening to him, and there was no one there to watch for sparks and slag.
Moreover, Lei was not wearing a leather apron which would have shielded his body
from the sparks that landed on his shirt. In sum, claimant caught fire because
he was working alone without proper protective wear.
An entity is, of course, negligent when it fails to use the degree of care that
a reasonably prudent person would have under the circumstances obtaining. To
make a showing of negligence requires that the risk of injury be reasonably
and the conduct be unreasonable in proportion to that danger. PJI
At trial, the efforts to flesh out these basic concepts relied, to a significant
extent, upon a number of promulgated standards, including those issued by
- National Fire Protection Association, specifically, NFPA 51B,
Standard for Fire Prevention in Use of Cutting and Welding Processes,1994 ed.
(def exh A).
- American National Standards Institute, specifically ANSI
Z49.1, 1994, safety in welding, Cutting, and Allied Processes (cl exh
The defendant points to
Sawyer v Dreis & Krump Mfg. Co.
, 67 NY2d 328, 337, 502 NYS2d 696, 701
(1986), in which the Court of Appeals ruled that such standards (in this
case those from ANSI) may be considered by the trier of fact if it is first
found that the standards represent the "general custom or usage in the industry.
But even if...so found, the standards [are] not conclusive... but [are] to be
considered with all the other facts and circumstances of the case in determining
whether [defendant's] conduct was reasonable...[citations omitted]."
Not only do I credit the unchallenged testimony of claimant's experts that the
ANSI and NFPA standards represent the general custom or usage in this area, but
such has effectively been recognized by the State in its regulations promulgated
pursuant to the authority of two statutes: the New York State Uniform Fire
Prevention and Building Code Act, Article 18 of the Executive Law; and
§27-a of the Labor Law, entitled "Safety and health standards for public
employees," known as the public sector OSHA law.
Part 1250 of 9 NYCRR covers reference standards; a reference standard (RS) is
defined as a "specification, code, rule, guide or procedure...recognized and
accepted as authoritative." 9 NYCRR §1250.1(a). Section 1250.3 of Title 9
lists specific reference standards, and two of them (RS 77-1 and 77-2) are the
aforementioned ANSI and NFPA welding standards. The two standards have also
been adopted by the Commissioner of Labor as part of the implementation of the
public sector OSHA law. 12 NYCRR §800.3.
Even assuming a provision of the State's Official Compilation of Codes, Rules
and Regulations applies directly to a particular person in a particular place
and circumstance, a violation of a rule or regulation is only some evidence of
negligence which may be considered along with the case's other evidence. See
Both DeBobes and Manz testified that welding alone with an oxy-acetylene torch
good and accepted safety practices. Both the ANSI and NFPA standards contain
provisions for "Fire Watchers," namely, designated persons on the scene of
welding operations to detect and prevent the spread of fires (ANSI §6.2.2.;
Defendant relies substantially upon the certification for welders done by the
New York City Fire Department, which both Keltner
and claimant had qualified for. Karen Giusti did not receive such certification
until after Lei's accident. Keltner testified that the practices and procedures
that governed welding in the college's metal lab were those set forth in the
Fire Department material that accompanied the certificate of fitness the
Department would give to welders following an examination (the "Study Material,"
cl exh 4). Keltner said there were no other written rules or procedures for
The Fire Department's material is entitled "Study Material for the Certificate
of Fitness Examination for Torch Use of Flammable Gases (Cutting and Welding)."
It provides that "[t]rained fire guards should be present whenever cutting or
welding is being done. The fire guards are not allowed to do any other kind of
work while serving as fire guards. They must concentrate only on preventing
fires. They should be on alert to make sure that the sparks do not start a
at p.7). Keltner testified that the holder of such a certificate of
fitness can weld alone, but then added: "You can weld alone. However,
according to the New York City [Study Material]... it recommends that you have a
fire watch or...somebody that is just there for safety reasons in case something
The prescriptive term "should" is somewhat weaker than "shall." To that
effect, Mr. Manz observed that federal OSHA, when enacted in 1970, adopted the
ANSI and NFPA welding standards and they
"took all the shoulds and made them shalls at that time." The ANSI and NFPA
standards in effect in March of 1998 used "shall," not "should," but in one
respect were weaker than the NYFD's material: namely, they limit conditions to
when a fire watcher is required to instances where a large fire might develop or
where combustibles are within 35 feet or where floor or wall openings within 35
feet expose combustibles.
DeBobes testified, assisted by the photographs he took on his visit to the
[T]here's [a] wall opening. It appears as if a panel had been removed from the
wall and you can see wiring protruding from that slightly. The wall penetration
is significant because sparks may fly in all directions and could end up going
inside of - - of that wall. It's also significant because in those applications
where you do have floor, wall and ceiling openings within 35 feet of a welder,
that triggers the requirement to have a fire watch present in the room at all
DeBobes also noted a ceiling opening that in his view would
also trigger the requirements for a fire watch.
As to working without protective gear, both of claimant's experts testified
that to do so was violative of good and accepted safety standards.
ANSI standard 4.3.3 provides, "Durable flame-resistant aprons made of leather or
other suitable materials shall be used to protect the front of the body when
additional protection against sparks and radiant energy is needed." Manz, on
cross-examination, explained that it is the type of protective material over
which there is some discretion; no credible evidence was adduced that the phrase
"other suitable materials" includes the kind of street clothes Lei was wearing
that day. (Compare §4.3.3 with the explanatory material of E 4.3.3 in cl
Page 6 of the Study Material provides that "workers should wear flame resistant
gloves and aprons, skull caps, helmets or goggles, and safety shoes.
Clothing with pockets or cuffs should not be worn while working. Sparks or
pieces of hot metal might catch in the cuffs or pockets."
It was undisputed that welders using the college's metal lab were not required
to wear a leather apron or a canvas jacket over their street clothes, although
they were readily available in the lab (see the photo in cl exh 11F). Keltner
testified that a leather apron was required in arc welding, which as noted is
powered by electricity,
"because there are sparks in arc welding that you don't have in the
oxy-acetylene torch." Not only do sparks jump from an oxy-acetylene torch, but
molten slag metal, according to the expert testimony (and see the Forward to the
NFPA Standard, def exh A).
Keltner responded in the affirmative
when asked whether the policy at the time of claimant's accident was that "they
had to wear denim or denim like clothing that would not be flammable or catch
sparks." Lei recalled Keltner saying that as long as he wore 100% cotton when
welding, he was safe, because the texture was such that "when any spots land
on...our cotton clothes, it immediately goes out."
Keltner clearly came across as an individual who was serious about his work and
about the students he advised. He cared about Man-Kit Lei and Keltner was
described admiringly by the claimant as his mentor: "
He taught me a lot of things in terms of arts and life. He taught me a lot.
He's the one who introduced me to welding and using metal to make sculptures."
Keltner may have done more for Lei than teach him how to weld two pieces of
metal together: Officer Washington, who saw Keltner trying to smother Lei's
flames, testified that "I think he saved his life."
From what we heard, Keltner was not part of an operation that had an organized,
ongoing safety awareness. There was no safety training and no safety plan,
although there was, according to Keltner, a safety advisor with campus-wide
responsibilities, with whom Keltner said he sometimes consulted, but not
regarding the safety of the oxy-acetylene torch. Keltner, with little or no
guidance from above or training thereon, fixed upon the Fire Department
certification program, although as a welder and the individual in charge of the
lab, he should have been aware of the ANSI and NFPA standards. In any event, as
indicated above, the practices at the metal lab were at variance with the Fire
Department Study Material.
Manz and DeBobes testified that the knowledge needed for the Fire Department's
certificate does not reach the larger issues, as do the widely
accepted, and widely disseminated, ANSI and NFPA standards. The certificate
would seem to be analogous to a driver's license - - a necessary part of road
safety, but not the whole picture; more than driver error can cause a highway
The risks arising from a fire were so great
and the costs to avoid so minimal, especially since to this trier of fact, the
means of prevention were disjunctive - - a fire watcher would have seen that
sparks or molten slag were flying onto claimant's shirt front or
the leather apron would have prevented his torso from igniting. As to the
latter, leather aprons did not even have to be purchased; a number of them were
hanging in the metal lab (cl exh 10H).
The risk existed although the flame was small. Manz observed that the
standards for gas-produced flames cover everything from
the tiny pilot light on a stove to a flame used to test the nose cone on a
spacecraft. But he pointed out that irrespective of the size of the flame, the
temperatures are the same. Manz was an exceptionally credible witness, in part
because he did not try to plug in the facts here to the specific ANSI or NFPA
standards to achieve an automatic result. Instead, he allowed as to how one
must view ANSI and NFPA as "guidelines, not recipes and you've got to read them
in their entirety not just...one little individual piece at a time."
The defendant was negligently responsible for claimant's catching fire, but Mr.
Lei, albeit a student, must bear some of that responsibility. For one thing,
the procedures in the metal lab violated the Fire Department's Study Material,
the basis for Lei's certificate. We heard no testimony that claimant in any
fashion brought such to the attention of Keltner or anyone else in the sculpture
or art departments. Appendix A of NFPA 51B concludes "[t]herefore, the cutter
or welder, the supervisor, and management share full responsibility for the safe
use of cutting or welding equipment. The specific responsibilities of each are
cited in Sections 2-1, 2-2, and 2-3"(def exh A).
The latter section, §2-3 which applies to the welder, is however fairly
passive in emphasizing adherence to supervisory approval and the given
In addition, DeBobes made a distinction between a graduate and an
"Now, a graduate student who already has a specialized level of
training and has advanced training in their particular media, may be able to
work unsupervised, but an undergraduate, never." Claimant in March, 1998 was,
strictly speaking, a senior. On the other hand, at the time of the accident,
Lei was two months shy of his twenty-fourth birthday (having initially enrolled
in Brooklyn College in the fall of 1993 after a year at college in Buffalo), was
working independently and had spent considerable time in the metal lab, having
used the torch 50 to 100 times.
While both claimant and Keltner possessed the Fire Department's welding
certificate, and even were Lei considered to have been more of a graduate
student than an undergraduate, the safety responsibilities of the two were not
equivalent. For example, DeBobes explained that public sector OSHA requires
safety training, but that claimant as a student was not directly subject to
Defendant states in its post-trial brief that "claimant caught fire...and then
panicked and ran into the hallway. He did not make any attempt to use the fire
extinguisher in the metal lab nor did he stop, drop and roll as he had been
taught" (p.16). This argument is not persuasive. Fire is uniquely dangerous, a
reality that has been undisputed in all venues since the appearance of
Prometheus. That someone would not know quite what to do when they are engulfed
in flames - - that they might "panic" - - is hardly unexpected.
Lei testified that he could not find a place to "drop and roll" to smother the
flames, so he went out into the hallway looking for Keltner to help him. Even
were claimant's reactions and judgment unclouded by his being on fire, the
uncontradicted testimony as to what the metal lab looked like made dropping on
the floor difficult - - it was very cluttered (See,
, the photos that are cl exhs 10M, 10N, 11D).
From the time he caught fire until it was put out by Keltner, there is no
credible evidence that claimant could have reasonably been expected to have done
anything that would have resulted in the flames being extinguished any earlier
than they were.
There was no readily available water supply, the sink was small and useful only
for cleaning up. Pails of sand were standing next to the sink, but numerous
spent welding rods were stuck in them. A fire blanket was folded in a plastic
bag and tucked up in a shelf virtually out of sight. There was no manual fire
alarm for Lei to pull. As to the fire extinguishers, one of the two was
positioned so that it was not accessible. I further credit the testimony that
a fire extinguisher is best used by one person putting out a fire away from him
or her, and not for self-rescue.
event, for the purposes of culpability
under the facts at bar, the
individual once on fire, cannot reasonably be expected to save himself.
In view of the foregoing, I find the defendant to be eighty (80)% liable
for the accident
that Man-Kit Lei suffered on March 4, 1998 and the
injuries resulting therefrom. All motions not previously ruled upon are deemed
A trial on the matter of damages will
be scheduled by the Court.
LET INTERLOCUTORY JUDGMENT BE ENTERED
November 1, 2002
York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
Section 2-3 provides: "The cutter or welder
shall handle the equipment safely and use it so as not to endanger lives and
property, as follows: (a) Have approval by the supervisor before starting to cut
or weld. (b) Cut or weld only where conditions are safe. (c) Continue to cut or
weld only so long as conditions are unchanged from those under which approval
Testimony was elicited that the fire
extinguishers were CO2 extinguishers not suitable for this type of fire, but
that fact does not go to the issue at hand - - whether Lei could have done
anything to immediately put out or mitigate the ultimate effects of the fire.
In its post-trial brief, for the first time,
defendant maintains it "was not put on notice that the claimant...alleges that
this claim was, among other things, a premises liability case" (p.12). Even
assuming this argument were timely and otherwise properly asserted, it lacks