10. Affidavit of James P. O'Brien, Esq., in support of cross-motion and in
opposition to motion, sworn to July 15, 2002, and filed July 16, 2002, with
This Claim arose on June 23, 1998 at a State owned bridge where State Route 17
and Interstate 81 span the Chenango River in Binghamton, New York.
employer, Promo-Pro Ltd., had been
hired by the State to refurbish the bridge. Claimant, along with two of his
co-workers, James Kouros and Emmanuel Fotinos, were in the process of assembling
a suspended scaffold under the bridge when the scaffold collapsed, dropping them
to the river approximately 50 feet below. As of the date of the accident,
Claimant had only been employed by Promo-Pro Ltd. for approximately one week.
This Claim was served on the Attorney General's office on about June 20, 1998
by way of certified mail, return receipt requested, and filed with the Clerk of
the Court on July 22, 1998. The Claim alleges violations of Labor Law 200, 240
(1) and 241 (6). By way of this motion, Claimant seeks partial summary judgment
on the Labor Law 240 (1) cause of action. In support of this motion, Claimant
submits, inter alia, his own affidavit and selected portions of his
deposition transcript. Most notably, however, Claimant relies upon a decision
from the Third Department resulting from his co-worker's claim arising from this
same accident (Kouros v State of New York, 288 AD2d 566), as well as the
trial court's decision which it affirmed (Kouros v State of New York, Ct
Cl, June 22, 2000, Hanifin, J., Claim No. 98994, Motion Nos. M-60503 &
CM-60664). Not surprisingly, Claimant argues that the Third Department's
decision controls here, while the State argues that this case is distinguishable
from Kouros despite the fact that they arose from the same incident.
Despite the State's arguments to the contrary, the factual similarities between
Kouros and the case at bar are striking and significant. For instance,
in Kouros, the Appellate Division recited the following facts:
Claimant was provided with, and was wearing, a body harness to which two
five-foot lanyards were attached at the waist, and the lanyards were connected
to a safety line which was available and in place....Because of the presence of
the pier, however, the safety line was not continuous from one section of the
scaffold to the other, necessitating unhooking on one side of the pier and
rehooking on the other....
Claimant's undisputed testimony is that he unhooked the lanyards from the safety
line at the pier, crossed the pier and stepped on the scaffold which collapsed
before he could reattach his lanyards....
(Kouros, 288 AD2d at 566-567).
By way of comparison, Claimant here was also provided and was wearing a body
harness, two lanyards were attached to the body harness at his waist, and the
lanyards were connected to a safety line, although the safety line was not
continuous across the bridge because of the presence of several piers or beams.
As in Kouros, Claimant here was wearing his body harness while working
and started to leave for lunch and unhooked his lanyards to traverse a beam and
was in the process of switching the lanyard from one hand to the other when the
scaffold collapsed. (Claimant's Exhibit 5, pp 21-22).
Labor Law 240 (1) requires that safety devices be "constructed, placed and
operated as to give proper protection" to a worker. The statute has been
interpreted to impose absolute liability for a breach which has proximately
caused an injury. (Rocovich v Consolidated Edison Co., 78 NY2d 509).
Negligence, if any, of the injured worker is of no consequence. (Zimmer v
Chemung County Performing Arts, 65 NY2d 513, 1054). The State attempts to
distinguish the facts at bar from Kouros are unpersuasive. Claimant's
submissions establish prima facie entitlement to judgment as a matter of law on
the issue of liability pursuant to Labor Law 240 (1). (Gordon v Tishman
Constr. Corp., 264 AD2d 499, 501-502).
The State cross-moves for summary judgment based upon the recalcitrant worker,
sole proximate cause, and assumption of the risk arguments. More specifically,
as in Kouros, the State asserts that it has established the recalcitrant
worker defense as a matter of law or, at least, raised a question of fact
relative thereto warranting denial of Claimant's summary judgment motion. The
State attempts to argue that Claimant here made a deliberate decision to unhook
both lanyards simultaneously while traversing a beam as compared to the mere
negligence attributed to Mr. Kouros for essentially the same actions. The
State's arguments must fail for the same reasons outlined in Kouros based
upon the Appellate Division's conclusion that:
[w]here the evidence shows that claimant was wearing the body harness and was
attached to the safety line while performing his work, defendants have failed to
establish a deliberate refusal to use the equipment. Claimant, as a matter of
law, cannot be deemed to be a recalcitrant worker solely because he was not so
attached when the other safety device, i.e., the scaffold, collapsed. Even if
the disputed issue of fact were to be resolved against claimant, his failure to
have at least one lanyard attached to the static line at all times establishes
only that he was negligent in detaching both lanyards and in failing to reattach
to the safety line after crossing the pier and prior to the collapse of the
scaffold. A worker's contributory negligence, however, is not a defense to a
Labor Law § 240 (1) claim [citations omitted].
(Kouros, 288 AD2d at 567).
Based upon the Third Department's conclusions stated above, this Court finds
that Claimant cannot be deemed to be a recalcitrant worker solely because he was
not attached when the scaffold collapsed and that, at worst, his decision to
unhook both lanyards is the equivalent of comparative negligence which is not a
defense to liability under Labor Law 240 (1). Additionally, for these same
reasons, the State has failed to demonstrate that questions of fact exist
regarding whether Claimant's own conduct was the sole proximate cause of this
accident. Consequently, Claimant's motion for summary judgment on the issue of
liability under Labor Law 240 (1) is granted and the State's cross-motion is
The Court will contact the attorneys for purposes of scheduling a conference to
discuss a schedule for the completion of outstanding discovery, if any, and the
scheduling of a damages trial.
ENTER JUDGMENT ACCORDINGLY.