New York State Court of Claims

New York State Court of Claims

FERRA v. THE STATE OF NEW YORK, #2003-016-006 , Claim No. 92463


Synopsis



Case Information

UID:
2003-016-006
Claimant(s):
JOSETTE FERRA, as Administratrix of the Estate of John Ferra and JOSETTE FERRA, Individually As agreed at the trial hereon, the caption has been amended to reflect that Josette Ferra has been appointed the Administratrix of the Estate of John Ferra.
Claimant short name:
FERRA
Footnote (claimant name) :
As agreed at the trial hereon, the caption has been amended to reflect that Josette Ferra has been appointed the Administratrix of the Estate of John Ferra.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
92463
Motion number(s):

Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Law Offices of Annamarie Fortunato, Esq.
By: Annamarie Fortunato, Esq.Ronald Gill, Esq., of counsel
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Cohen, Kuhn & AssociatesBy: Sung Hee Koh, Esq.
Third-party defendant's attorney:

Signature date:
January 28, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This decision follows the liability trial of the claim of the Estate of John Ferra for injuries Mr. Ferra, an ironworker, suffered on June 30, 1995 when unloading a flatbed truck. Mr. Ferra's death in March of 2000 was not a result of such injury. The administratrix of the estate is Josette Ferra, John Ferra's wife, who also maintains a derivative action. References herein to "claimant" in the singular and to "Ferra" will mean Mr. Ferra.

Claimant was working on a job to repair and renovate
the Bruckner Expressway in the Bronx, which involved replacing pieces of iron that were rotting away and then reinforcing the structure. The project was performed under a contract between the State of New York and Kiska Construction Company; Ferra was employed by a subcontractor of Kiska, Iron Bridge Company. Friday, June 30 was the end of claimant's first week on the job and he had been removing rivets from beneath an elevated portion of the Expressway.
At about 1 p.m. that day, a few of the 20 or so workers on the project were asked to unload a steel beam from a flatbed truck. The "beam" was actually two angled pieces, shaped like a "T," which from above looked like a cross (cl exh 1). The combined beam was about 8 feet long and just fit within the length of the flatbed truck when the tailgate was closed. The beam was the only structural piece of steel on the truck.
We heard widely varying estimates of the beam's weight. Ferra in his March 5, 1997 deposition said it weighed 1,800 pounds; two witnesses at trial had it at about 1,000 pounds and a third witness thought the beam's weight was 600 pounds.[1]
Ferra had climbed onto the flatbed of the truck to assist with the unloading of the steel. He stated in his deposition testimony
that the accident was caused because the floor of the truck was slippery and contained some debris:
We just got up on the truck, started sliding...the piece...[it slid] probably like a foot...Well, then my foot slipped a little bit and then got caught, threw me off balance. My foot was caught in debris. It pushed me off balance and the beam was on top of me, on top of my ankle.

The scope of this trial had been narrowed by the Order filed February 5, 1998 with the result that only §241.6 of the Labor Law remained at issue. Subdivision 6 of §241 requires contractors and owners "to provide reasonable and adequate protection and safety to the persons employed... [in all] areas in which construction, excavation or demolition work is performed." This duty is non-delegable: liability will be imposed even in the absence of control or supervision of the jobsite.
Allen v Cloutier Construction Corp., 44 NY2d 290, 405 NYS2d 630 (1978); Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 670 NYS2d 816 (1998). On that basis, the State may be liable, but only if it can be predicated on the violation of a specific rule promulgated by the Commissioner of Labor. Ross v Curtis-Palmer Hydro-Electric Corporation, 81 NY2d 494, 601 NYS2d 49 (1993).
To that end, claimant points to two provisions of what is commonly known as Rule 23 of the Industrial Code, entitled, "Protection in Construction, Demolition and Excavation Operations":


(d) Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.

(e) Tripping and other hazards.

(1) Passageways. All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping. Sharp projections which could cut or puncture any person shall be removed or covered.


(2) Working areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.


[12 NYCRR §23-1.7 (d & e)].

Claimant is thus attempting to prove that the floor of the truck had grease on it or that there was debris there. In addition to the 1997 deposition of the claimant, at trial, we heard from:
Thomas Kudrako, an ironworker employed at the project who worked for Iron Bridge;

Emilio Arostegui, the "labor foreman" on the site employed by Kiska, the General Contractor, who was the driver of the pickup truck; and

William Healey, one of the workers attempting to unload the beam off the truck.

The testimony of all four was in agreement that the last task in the early afternoon that Friday was to unload the bound-together pieces of steel from the flatbed truck. Nor did any witness dispute that claimant was up on the flatbed truck when the beam was being unloaded.
Beyond that however, there were any number of disagreements about the testimony, and claimant's deposition testimony had material inconsistencies.
In his deposition, Ferra said that he joined a "raising gang" of five to unload the beam and that two of the men were up on the flatbed truck with him. Kudrako testified that he, Ferra and a third worker were up on the back of the truck, with three or four workers on the ground. Healey recalled that Ferra and probably Kudrako were on the back of the truck.

The testimony of the truck driver, Arostegui, was more detailed and vivid than that of the others, although his trial testimony differed from his deposition testimony as to how he first came to observe Ferra. In any case, according to Arostegui, Ferra was the only worker on the back of the truck. On the stand, the following exchange with the driver took place:

Q. At some point...you stated that you observed Mr. Ferra on the truck bed, correct? A. Yes, I did.
...

Q. Did you, as a foreman at the job site, did you inquire what he was doing on the truck bed at that time? A. Yes, I did.
...

Q. You did. What did you say to him? A. I honked the horn of the truck and he looked in the truck and I just said, "What are you doing?" ...He didn't answer me.

In a December 2001 deposition, this is how Arostegui recalled first seeing claimant:
After I started to pull away, I stopped so that the workers could place wood on the ground to protect the stiffeners [the beam]. As I stopped, I then saw John Ferra jump onto the truck. I was surprised and didn't know what he was doing. I looked in my rear view mirror and saw John Ferra...using a pry bar to move the stiffeners.
The most notable variance occurred in the witnesses' recollection of how the steel was unloaded. Ferra said the steel was raised three feet off the truck bed by skids so as to be slid off the truck and grabbed by the two people on the ground. Such was to be accomplished without the use of any equipment or tool. Kudrako's testimony was similar as to the steel being removed manually and that the truck driver did not have to move his vehicle. Kudrako did add that there were slabs of four by fours on the ground, but made no mention of anything on the truck bed under the steel.

Again, Arostegui, the driver and job-site foreman, had the clearest and most credible recollection, and he described the process as follows:

Q. Do you know how they were unloading them?

A. We were tying a choker cable around them which would be tied to a column and the truck would proceed slowly and basically they would slide off onto the ground.
Healey also recollected that a choker and a concrete column were put to use, and that the truck was probably moved a little at some point. Given that the beam was just shorter than the length of the flatbed with the tailgate closed and that the tailgate when lowered added only 18-20 inches to its length, the process did not take long.
Moreover, when, completely on the bed of the truck, the beam was stable. As Kudrako explained
: "Well, the T section was stabilizing the piece from rolling either way. As soon as it got off the tailgate, the piece rolled and it rolled onto John's ankle." Healey concurred:
A. When the end bracket [came] off the truck, that's when it rolled.

Q. Okay, why would the vertical stiffner [the steel] roll once the end bracket is off the truck?

A. Because it was shaped like a cross or a "T"... [t]he end bracket had it balanced.

As to what, if anything, was laying on the truck bed, Ferra maintained there were
metal bolts and scraps of wood up to a half a foot long on bed of the truck. But elsewhere in the deposition, when given sufficient opportunity to respond that there were wood pieces as well, claimant did not do so:
Q: Do you know what caused your foot to slip? A... Then I happened to look down and it looked like there was something wet like grease or oil on there...


Q. Were there any pieces of carpet? Were there any pieces of rubber matting? Was there anything else on that flatbed? A. No.

Kudrako recalled the presence of a
"a few dark spots... on the bed of the truck that appeared to be either grease or oil that was there for a while." Then when asked about anything else, he answered that there were "a few old nuts and bolts up towards the front of the truck," but made no mention of any wood. On cross-examination, Kudrako responded that the truck bed was corrugated with a spacing of 2 inches, raised 1/4 to 3/8 of an inch, and that there "were just a few" bolts toward the front, which could have been in the grooves.
Arostegui did not remember any grease spots on the bed of the truck. As to debris, the driver said that he had swept the truck bed clean with a broom that morning at 9 a.m.
For his part, Healey disclaimed any knowledge of slick spots or wood chips on the flatbed, had never seen any slick spots or debris on the truck prior to the accident and explained that given the purposes of the truck - - for hauling - - there was no reason to ever use grease or oil. Arostegui had noted that grease or oil was only used when cutting steel beams.
***
The burden is on claimant to prove his case by the fair preponderance of the credible evidence, and he has failed to meet that burden. To this trier of fact, when the beam came off the end of the truck, it rolled into Ferra and injured him.
Claimant offered no credible evidence to prove that even were there grease or debris on the truck floor which caused him to slip or trip, such was the proximate cause of his contact with the steel beam and resultant injury. (See PJI 2:216A; Rizzuto, supra). In any event nonetheless, I conclude it to be less likely than not that there was any debris or grease in Ferra's way. As indicated earlier, Ferra's deposition was not wholly consistent, and I credit Healey and Arostegui, two straightforward and believable witnesses, who firmly articulated their testimony that the truck bed was free of any debris or slippery substance.
It thus becomes unnecessary to reach the other §241.6 issue reserved in the February 5, 1998 Order for factual determination at trial, that is, with respect to the distance of the truck from the construction site (and the readiness of the steel beam for use in the Bruckner project).

In view of the foregoing, the claim of the Estate of John Ferra and of Josette Ferra (no. 92463) is
dismissed. Any motions not previously ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.

January 28, 2003
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1] Perhaps the wide differences could be attributed to the weight of the individual pieces as against the combined weight, although consider Thomas Kudrako's response when that reasoning was probed: Q. Do you know the approximate weight of this particular angle iron? A. I'd say about six hundred pounds. Q. Together? A. Yes.