New York State Court of Claims

New York State Court of Claims

MARCHINEK v. THE STATE OF NEW YORK, #2003-016-029, Claim No. 102737


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Lippman, Krasnow & Kelton, LLPBy: David T. Verschell, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ricardo Montano, AAG
Third-party defendant's attorney:

Signature date:
April 7, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision on the liability portion of the claim of George D. Marchinek, allegedly arising from his injury caused while working on a construction site. Mr. Marchinek was an employee of Bi-County Paving Corporation, and an experienced construction laborer with 17 years of experience, two
with Bi-County. Claimant was working pursuant to a contract his employer had entered into with the State to refurbish 14 bridges or overpasses in Suffolk County (cl exh 2).
At each bridge, the top layer of concrete was removed, exposing the supporting steel
reinforcing bars, or rebars, as they are known. Over time, the steel had rusted. The rust would be sandblasted off and then concrete would be poured. On June 28, 1999, Marchinek was assigned to one of the 14 sites - - Moriches Road, which was an overpass across Route 27 (cl exh 1, p. 1; this was site no. 6).
Claimant had reported to the Moriches Road job at 7:30 in the morning. His assignment that day was to use a
"sandblaster to take off all the imperfections, rust and to clean-up the rebar that's been exposed to the air [on the deck of the bridge]." There was no sandblaster at the Moriches Road site when Marchinek came to work, so claimant, as part of a small crew, went to another project location, loaded one onto a pickup truck, drove back to the Moriches Road overpass and backed the truck up as close to the work area as possible.
Claimant's unchallenged testimony was that it took
"four or five of us" to load the sandblaster onto the truck and then to unload it - - and that was when it was empty. The sandblaster is a "large tub, about 5 feet high. It's cast iron and it's on wheels, like those garbage pails that you have where you can go and tip them over."
Claimant was sandblasting for the rest of the morning; the workers broke at noon. Everyone else raced to their cars to drive out for lunch. Marchinek was in no hurry; he had brought his lunch and intended to eat in his car.

There were three or four
inspectors from the State Department of Transportation (DOT) assigned to the entire project. While walking toward his vehicle, Marchinek's foreman and one of the inspectors got up on a piece of equipment used to level off concrete - - a Bidwell machine. They had wanted to move the Bidwell, but they could not do so without having the sandblaster removed from the deck. Marchinek was the only one around - - the operating engineer, who claimant said should have been operating the Bidwell, was off at lunch - - "[s]o they asked me if I could go and move the sandblaster off the deck."
Besides the weight of the sandblaster, Marchinek explained the difficulty of maneuvering it:
Well there's joints in a bridge where there's expansion joints between concrete slabs and at the end of the area we were doing, we met an existing deck [an existing portion of the roadway] and so there was a joint there with about a 6 inch rise.
Moreover, right before the lunch break, Marchinek had fully loaded the sandblaster with two more bags of sand. The sandblaster holds four to six such bags, or 400 to 600 pounds of sand.
Claimant recalled that his response to the request was, "I'm not going to be able to get it up over the joint by myself. I need help." As it happened, a truck driver pulled up in his flatbed truck and the foreman said, "give George a hand. So the guy came over and he tried to help me do it." What happened next was his accident, which Marchinek described with some precision:
As we got to the joint I leaned it back, I had it balanced and ... he wanted to go and lift on the axle and as he went to lift, he only lifted his right hand up and when I jerked back his left side and my right side the wheel stayed on the deck. My left hand side[1] of the wheel came up onto the existing roadway and the thing twisted. He pushed on it and it came down on me, onto my right leg.

The foreman and inspector were on the Bidwell, at about the midpoint of the bridge, close enough to help claimant up.
Marchinek had worked previously at the Moriches Road bridge with heavy equipment. At those times he testified, they used ramps to get over each expansion joint, and ramps ran from the deck to the existing roadway.
Sheets of plywood would be supported with four by four's. When they were on a deck for some period of time, according to claimant, the wood was nailed together. None of these ramps were in place on June 28, 1999: "[w]e had ripped everything down because they were going to be pouring the deck [with concrete]."
The only
other witness at trial was another DOT inspector on this project, Jeffrey Dionisio, - - not the individual on the Bidwell. Mr. Dionisio's testimony consisted essentially of explaining his responsibilities, which included his authority and that of the engineer-in-charge (a DOT employee) over the contractor. Dionisio left unchallenged claimant's narrative. He did, however, state that he had looked through certain records (apparently the inspectors' daily reports [cl exh 1]) and could find no reference to claimant's injury of June 28, 1999. With that noted, both Mr. Marchinek's credible testimony, together with his workers' compensation report of the incident (cl exh 3), lead to the conclusion that there was such an accident and that it occurred the way claimant said it had.
Section 241.6 of the Labor Law imposes liability on an owner of a construction site, irrespective of its level of supervision, for the negligent failure to "provide reasonable and adequate protection and safety" to the workers on the job.
Allen v Cloutier Construction Corp., 44 NY2d 290, 405 NYS2d 630 (1978). However, in order to establish liability, there must be a violation of the regulations promulgated under §241.6, which violation must be of a specific requirement and not merely of a general safety standard. Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 601 NYS2d 49 (1993).
The failure here to use ramps finds a sufficiently specific predicate for §241.6 liability under Rule 23 of the Labor Commissioner:
Stairways, ramps or runways shall be provided as the means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided. 12 NYCRR §23-1.7(f).

All runways and ramps shall be substantially constructed and securely braced and supported...Runways and ramps constructed for the use of wheelbarrows, power buggies, hand carts or hand trucks shall be ... substantially supported and braced to prevent excessive spring or deflection. 12 NYCRR §23-1.22(b)(1 & 3).

Defendant violated these provisions when Marchinek was directed to move the heavy and unwieldy sandblaster out of the way of the Bidwell without the use of a ramp over the expansion joints, as had
previously been done; such was a failure to use reasonable care which was the proximate cause of claimant's accident. Akins v Baker, 247 AD2d 562, 669 NYS2d 63 (2d Dept 1998)[2]; PJI 2:216A.
It is therefore unnecessary to reach the cause of action based upon Labor Law §200, the codification of the common law duty to maintain a safe construction site; §200 requires a showing of control to hold an owner negligent.
Rizzuto v L.A. Wenger Contracting Co., Inc., 91 NY2d 343, 670 NYS2d 816 (1998).
No evidence was adduced to show that claimant bore any responsibility for his injury. Even if he could have refused to move the sandblaster with impunity and if this ability to refuse to perform the directed task would somehow denote comparative negligence on his part, Marchinek credibly, and without contradiction, explained, that from his experience, such was not a practical alternative. To refuse a direction from his foremen would have entailed a good chance of his not working again on the project, work that was to continue for an additional few months.

While there was testimony that could well implicate negligent acts or omissions by Marchinek's employer, for lawsuits, like this one, which were commenced on or after September 10, 1996, an employer is not liable for contribution, unless the worker suffered a "grave injury," a narrowly drawn concept not obtaining here.[3] Such was not the case prior to September 10, 1996, even if the employer could not, as a matter of law, be a defendant in the case - - because, for example, it could not be sued directly by its employee for a work-related injury or could not be a defendant in the Court of Claims. Brown v State of New York, 268 AD2d 548, 702 NYS2d 617 (2d Dept 2000); DiCamillo v County of Nassau, 293 AD2d 563, 741 NYS2d 253 (2d Dept 2002).
In view of the foregoing, the defendant State of New York is
fully liable for the June 28, 1999 accident to George D. Marchinek and any injuries resulting therefrom. Motions not previously ruled upon are hereby denied.
A trial on the matter of damages will be scheduled by the Court.

April 7, 2003
New York, New York

Judge of the Court of Claims

[1] The trial transcript (page 27, line 14) has the phrase as "My land hand side"; the audiotape of the trial indicates that what claimant said was "My left hand side."
[2] Defendant cited O'Hare v City of New York, 280 AD2d 458, 720 NYS2d 523 (2d Dept 2001), which involved an injury caused by planking that split lengthwise; but if offered for the suggestion that a condition at a work site without planking, but that should have had planking, is outside the ambit of §23-1.7(f) and §23-1.22(b), the citation thereof does not persuade.
[3] See the Omnibus Workers' Compensation Reform Act of 1996 (chapter 635) which amended, inter alia, the CPLR, the General Obligations Law and the Workers' Compensation Law. On the effective date of Chapter 635, see Majewski v Broadalbin-Perth Central School District, 91 NY2d 577, 673 NYS2d 966 (1998); as to "grave injury", see Workers' Compensation Law §11 and Castro v United Container Machinery Group, Inc., 96 NY2d 398, 736 NYS2d 287 (2001).