9. Deposition transcript of Joseph Fiorelli, taken May 3, 1999.
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. Claimant was
in the process of assembling a suspended scaffold under the bridge when the
scaffold collapsed, dropping him to the river approximately 50 feet below.
According to Claimant's papers, "[t]he scaffold was assembled by affixing 4' by
24' wood platforms on top of steel cables spanning the length of the bridge.
Claimant was standing in the middle of the suspended scaffold waiting to hand
wood to his co-workers to build the remaining scaffold. This pile of wood was
also in the middle of the scaffold. The width of the scaffold was approximately
24 feet." (Affirmation of Lawrence P. Biondi, Esq. dated June 21, 2002, ¶
3). Claimant was further than six feet from the edge of the scaffold at the
time of the accident. (Claimant's Exhibit 5, p 36).
This Claim was served on the Attorney General's office on about March 1, 2000
by personal service and filed with the Clerk of the Court on that same
The Claim alleges violations of Labor
Law 240 (1). 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 thereof which has
proximately caused an injury. (Rocovich v Consolidated Edison Co.
NY2d 509). Negligence, if any, of the injured worker is of no consequence.
(Zimmer v Chemung County Performing Arts
, 65 NY2d 513, 1054).
By way of background, this scaffold collapse also injured two of Claimant's
co-workers, James Kouros and Joseph Fiorelli. Mr. Kouros was granted summary
judgment on his Labor Law 240 (1) cause of action which was affirmed by the
Third Department. (Kouros v State of New York
, 288 AD2d 566, affg
Ct Cl, June 22, 2000, Hanifin, J., Claim No. 98994, Motion Nos. M-60503 &
CM-60664). Simultaneously with the filing of this instant Decision and Order,
this Court has granted summary judgment to Mr. Fiorelli. (Fiorelli v State
of New York
, Ct Cl, September __, 2002, Lebous, J., Claim No. 98669, Motion
Nos. M-65458, Cross-Motion No. CM-65465). In both Kouros
, the workers had been wearing their safety harnesses and were
attached to safety lines while performing their work, but started to leave for
lunch and were in the process of traversing a pier which necessitated the
unhooking of a lanyard from one safety line to another at the moment of the
The facts involving Mr. Fotinos are notably different. As such, the facts
presented here not only warrant detailed analysis in and of themselves, but also
in comparison to the facts giving rise to the Kouros
decision. At the
time of the collapse, Mr. Fotinos was in the middle of the scaffold still in the
process of working by preparing to hand wood to another worker to be used in
constructing the next portion of the scaffold. (Claimant's Exhibit 5, p 27).
Most importantly, however, Claimant had not unhooked his safety harness in order
to traverse a pier as did Mr. Kouros and Mr. Fiorelli, but acknowledged in his
deposition that he had never hooked his safety harness and lanyards to a safety
line while performing work in the first instance. The State has conceded that
at the time of the collapse Claimant was wearing his full body safety harness
with two lanyards attached,
that Claimant had not connected those lanyards to the available safety lines.
(Affidavit of James P. O'Brien, Esq. sworn to July 9, 2002, ¶ 25).
Claimant's purported reasons for failing to attach his safety harness and
lanyards to a safety line while working are the parties primary focus on these
motions. For its part, the State contends that it has established the
applicability of the recalcitrant worker defense or, at the least, has raised
questions of fact relative to Claimant's failure to attach to safety lines,
thereby warranting denial of Claimant's summary judgment motion.
The first reason described by Claimant for failing to attach his safety harness
and lanyards to a static safety line is the alleged physical impossibility of a
worker to do so when positioned in the middle of the platform. Needless to say
that these parties have opposing views of the possibility of a worker connecting
to a safety line while positioned in the middle of the platform. Claimant
alleges in his papers that it was physically impossible to tie-off while in the
middle of the scaffold, because of the width of the scaffold (24 feet) as
compared to the length of the lanyards (five feet
(Claimant's Exhibit 5, p 29). The
State argues that it was physically possible to do so meaning that Claimant's
decision not to tie-off must be viewed as a deliberate refusal to do so, thereby
barring his recovery under the recalcitrant worker
However, it is well-settled that the
function of the court on a summary judgment motion is not to resolve material
issues of fact, but instead merely to ascertain whether any such issues exist.
(Sillman v Twentieth Century-Fox Film Corp
., 3 NY2d 395, 404). If such
issues exist, the motion for summary judgment must be denied. In this Court's
view, the parties have clearly raised a question of fact relative to the
physical possibility of a worker, wearing a safety harness with lanyards,
connecting to safety lines while positioned in the middle of the platform. That
having been said, however, the Court notes that a similar issue was raised in
and did not prevent an award of summary judgment to claimant in
that case. As such, in this Court's view, a further comparison of the facts of
these cases as well as the Third Department's treatment thereof is warranted.
In Kouros, and for that matter Fiorelli as well, the State
attempted to raise questions of fact regarding the possibility of staying
connected to a safety line while traversing a pier, whereas here the State
argues questions of fact exist about attaching to a safety line while performing
work positioned in the middle of the platform. In Kouros, the Third
Department identified this issue of fact, but determined that even if the
disputed question of fact were resolved against Claimant (e.g., that staying
connected to a safety line while traversing a pier was indeed possible),
[h]is failure to have at least one lanyard attached to the static line at all
time 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).
Claimant here urges this Court to follow the same logic, arguing that even if
Mr. Fotinos "[w]as able to have a safety line secured at all times, [a]ccording
the [T]hird Department this merely establishes that he was negligent."
(Affirmation of Lawrence P. Biondi, ¶ 8). In this Court's view, however,
the fact that Mr. Kouros had demonstrated his prior compliance with the safety
rule by attaching to a safety line while performing work was an integral
part of the Kouros determination. The same cannot be said of Mr.
Fotinos. Rather, Mr. Fotinos had admitted that he did not attach to a safety
line while performing his work (setting aside for a moment his reasons for not
doing so). For this reason, this Court cannot rely, as could the Third
Department in Kouros, on Claimant's act of wearing a safety harness and
attaching to the available safety lines while performing work to refute the
recalcitrant worker defense as a matter of law. More specifically, the Third
Department stated "[w]e conclude that where 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." (Kouros, 288 AD2d at 567; emphasis added). As such,
based upon the foregoing, this Court finds that questions of fact exist relative
to Mr. Fotinos' ability to attach his safety harness and lanyards to safety
lines while he was working in the middle of the platform and the applicability
of the recalcitrant worker defense.
The second issue in contention relates to the substance of the official
rule and Claimant's knowledge and/or
understanding thereof. Claimant described his understanding of the rule as
follows: "[t]he rule was that within six feet of the edge you had to wear one
[a safety harness]. But in the middle there was no rule, they told us we didn't
need to wear one." (Claimant's Exhibit 5, p 30). In short, Claimant's version
of the rule was that a worker was only required to tie-off while working within
six feet from the scaffold's edge. Claimant indicated that this rule was
explained to him by his boss, identified as "Nick". (Id
counsel also raised the issue of whether Claimant's hearing disability adversely
impacted his ability to understand the rule or instructions relative
The State contends that the substantive tie-off rule required every worker to
tie-off while working at a height over six feet regardless of proximity to the
platform's edge. The State further argues that the substance of the tie-off
rule and this Claimant's understanding thereof were determined in Kouros
and cannot now be disputed.
The State also
relies upon the proof submitted in connection with Kouros
, the testimony from Mr. Kouros and Mr. Fiorelli, the Affidavit
of David Demick, the deposition testimony of Michael Ryan, and Claimant's
documented attendance at a 1997 safety meeting.
In this Court's view, the explanation of the tie-off rule and the references to
"co-workers" contained in Kouros
should not automatically be applied to
Claimant in this case in light of Claimant's unrebutted contention that his
boss, identified only as "Nick", explained a different rule to him. (Claimant's
Exhibit 5, p 30). The State has not submitted anything from Claimant's boss in
contradiction thereof. Moreover, there is no proof in evidentiary form that
this or any safety rule was communicated to Claimant in a manner that he could
understand given his hearing disability. As such, even if the substance of the
official tie-off rule is as described by the State, there remains a question of
fact as to Claimant's understanding of that
In other words, how can this Court find
from this record that Claimant deliberately
refused to use a safety
device when he avers that he received different instructions as to the rule for
using those devices. In his deposition, Claimant is consistent in his
description of the tie-off rule as he understood it and his actions were
consistent with that understanding. Whether Claimant's understanding - or
misunderstanding as the case may be - of the safety rule was due to improper
instructions, his hearing disability, or otherwise, it certainly creates
questions of fact on whether his refusal to hook up was a deliberate refusal to
use safety devices available, visible and in place at his
As such, this Court finds
additional questions of fact exist relative to the substance of the official
tie-off rule, Claimant's understanding of that rule, and the role, if any, of
Claimant's hearing disability in relation thereto.
In sum, upon reviewing these opposing motions for summary judgment, accepting
the non-moving party's evidence as true, and granting them every favorable
inference, this Court finds questions of fact as noted above, which in turn
warrants denial of the party's respective motions for summary judgment.
(Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046,
Claimant also seeks costs, sanctions and attorney's fees against the State for
moving to dismiss his claim. Claimant has not set forth any facts which would
warrant the imposition of such relief and, as such, Claimant's request is
denied. (Court of Claims Act 27; 22 NYCRR 130-1.1).
Based upon the foregoing, Claimant's motion for summary judgment, Motion No.
M-65416, is DENIED, and the State's cross-motion for summary judgment,
Cross-Motion No. CM-65464 is also DENIED.
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 liability trial.