New York State Court of Claims

New York State Court of Claims

SCHUTT v. THE STATE OF NEW YORK, #2003-019-003, Claim No. 105405


The State found that the absence of any specific protection of aerial basket control levers, particularly in relation to the manner in which Claimant was required to use the aerial basket, was unreasonable and inadequate under the circumstances and constituted a violation of Labor Law 241 (6) and Industrial Code 23-9.6 (b) (1) which was a proximate cause of Claimant's injury. Liability apportioned 65% to the State and 35% to Claimant.

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:
THE ROTHSCHILD LAW FIRM, P.C.BY: Martin J. Rothschild, Esq., of counsel
Defendant's attorney:
BY: Mlynarski & Cawley, P.C.Theodore J. Mlynarski, Jr., Esq., of counsel
Third-party defendant's attorney:

Signature date:
March 31, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, W. James Schutt, alleges he was injured while working as a laborer on a State Highway construction project as a result of a violation by the State of New York (hereinafter "State") of Labor Law § 241 (6) - more specifically a violation of section 23-9.6 (b) (1) of the Commissioner of Labor (hereinafter "Industrial Code").[1] Additionally, Industrial Code sections 23-9.6 (e) (3) and (e) (8) were also issues at trial as will be discussed in further detail below. The trial of this Claim held in the Binghamton District on October 30, 2002 was bifurcated. Consequently, this Decision addresses the issue of liability only.

As the testimony at trial revealed, this Claim arose on January 10, 2001 at a State construction project located at the Appalachian-Campville bridge in the Town of Owego, New York. Claimant at that time was an employee of Tioga Construction (hereinafter "Tioga"), the general contractor for said project. On this date, Claimant's responsibility was to set and splice steel beams as part of this bridge reconstruction. The process was accomplished by steel beams being lifted and held into place by a crane. At the same time, an aerial basket was raised to position Claimant and his co-worker in such a way so they could bolt or pin the hoisted beam into place with the existing portions of the steel frame. The work took place approximately 80 feet above ground through the use of an aerial lift basket commonly referred to as a "Genie"[2]
. The Genie being used on this date was extended to its maximum of 80 feet. Claimant, with his co-worker, was preparing to bolt and splice steel beams together. Claimant placed his left hand on one of the control panel levers and was in the process of swinging the Genie basket underneath the beam in order to intentionally brace the basket's railing to the underside of the beam. Claimant testified that this is the process they had been instructed to use by their employer Tioga in order to stabilize the basket from swinging and swaying while extended at its 80 foot maximum. As Claimant neared the beam it suddenly surged upward causing a bolt or pin protruding from the under portion of one of the fixed steel beams to hit the basket's control panel. As a result, Claimant testified his left hand was pinned between the Genie's control panel and the beam. Said impact simultaneously damaged the Genie's control panel so that Claimant's attempts to use the same lever to lower the basket were to no avail. Claimant's left hand was trapped between the underside of the steel beam by the protruding bolts thereon and the control panel of the Genie. Claimant managed to pull his hand free, but he suffered serious injury to his left hand including wrist injuries and the partial amputation of his left thumb.

Claimant called as a witness his co-worker, Aaron Reinhardt, who at the time of the accident, was in the Genie with Claimant. Mr. Reinhardt testified that the Genie had been operated to its full extended position by Claimant and placed under the steel beam which they were fastening. Mr. Reinhardt explained that when the basket was wedged against the beam, the width of the basket was greater than the width of the beam. Consequently, Claimant was on one side of the beam operating the Genie while Mr. Reinhardt was on the opposite side of the beam, preparing to place bolts through the phalange and connect the beam to the other existing steel frame work. Mr. Reinhardt testified that there were numerous bolts and drift pins hanging down from the phalange of the steel beam.
The witness testified he had exited the basket to get onto the beam to continue the bolting process. The witness testified he attempted to get out of the basket very slowly to keep the Genie from bouncing. Once on the beam, the witness asked the Claimant to raise the basket and pin it against the beam. However, before doing so, Claimant asked the witness to get back in the basket. The witness complied and when he did so he heard the engine of the Genie rev. He then heard Claimant scream, "my hand is stuck". Reinhardt looked under the girder and saw that Claimant's hand was stuck between the controls and the steel beam. The witness testified that he was about to exit the basket and slide down the extension arm to the base of the Genie to use the hand controls located there, but other co-workers who had heard the screaming had already begun to lower the Genie by using the ground controls.

At trial, various photographs of the Genie aerial lift in question were received into evidence. (Cl.'s Exs. 1, 2 and 3; St. Ex. A). From a review of all of these photographs, it appears to the Court that the control panel of this aerial lift was fitted with protection bars around the control panel. However, in the way that the device was deliberately used by the Claimant and others on the construction site, it appears that when intentionally wedged against a steel beam the protective bars were of no use, particularly in relation to the bolts and drift pins hanging down several inches below the phalange of the beam. Consequently, while the equipment appears to have been safe for ordinary use, under these circumstances there was serious risk of injury to Claimant herein through the operation of the Genie as encouraged by the contractor and engaged in by Claimant.

It is well-settled that Labor Law 241 (6) requires that contractors and owners and their agents provide "reasonable and adequate protection and safety" by complying with specific rules of the Industrial Code. This duty is nondelegable which obviates a claimant's need to show that the owner or contractor exercised supervision and control over the work performed. (
Long v Forest-Fehlhaber, 55 NY2d 154). In order to establish a prima facie case under Labor Law 241 (6), claimant must initially establish that the owner or contractor violated a rule or regulation that sets forth a specific or concrete standard of conduct, as opposed to a general reiteration of common law principles. (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494). Additionally, the injured party must show that violation of the particular regulation alleged was a proximate cause of the accident. (Ares v State of New York, 80 NY2d 959). That having been said, however, the violation of such a safety regulation, does not establish negligence as a matter of law, but rather is merely some evidence of negligence for the fact-finder to consider along with any other relevant evidence. (Allen v Cloutier Constr. Corp., 44 NY2d 290; Long, 55 NY2d at 159; Rizzuto v Wenger Contr. Co., 91 NY2d 343, 349; Daniels v Potsdam Cent. School Dist., 256 AD2d 897). As such, comparative negligence is a defense to a Labor Law 241 (6) cause of action. (Keleher v First Presbyt. Church of Lockport, 158 AD2d 946, lv dismissed 75 NY2d 947). In this case, Claimant sought at trial to prove that his injuries were proximately caused by the State's violation of 12 NYCRR 23-9.6 (b) (1) ("Aerial basket safeguards"); while the State raised in defense the issue of the applicability of 12 NYCRR 23-9.6 (e) (3) ("Aerial basket operation"). This Court had also previously found a question of fact relative to the applicability of 23-9.6 (e) (8) ("Aerial basket operation"). (Schutt v State of New York, Ct Cl, September 27, 2002, Lebous, J., Claim No. 105405, Motion Nos. M-65690, CM-65721, p 15 [UID No. 2002-019-568]).
Point I
Industrial Code 23-9.6 (b) (1)
Industrial Code 23-9.6 (b) (1) states "[w]here aerial basket controls are so located that they may come into contact with obstructions, such controls shall be protected by guarding or equivalent protection shall be provided."

It is undisputed that there is a safety rail present around the control panel of this Genie. However, Claimant argues that Labor Law 241 (6) requires that "equipment" at the work site "must be reasonable and adequate under the particular circumstances". (
Rizzuto v Wenger Contr. Co., 91 NY2d 343, supra). Claimant alleges that the use of the basket in the method advocated by Tioga was not reasonable and adequate under the particular circumstances in view of the incredibly delicate procedure that had to be performed as described hereinabove. Claimant contends that the levers themselves were not protected by any guarding or equivalent protection. The Court agrees. While this Genie is apparently safe when used for its intended purpose as an aerial lift it becomes unsafe when misused as a wedge to be jammed under and against steel beams - as in the case at hand. When used under these circumstances the railing does not provide sufficient protection of the levers themselves. The Court finds that the absence of any specific protection of the control levers, particularly in relation to the manner in which Claimant was required to use this aerial basket, was unreasonable and inadequate under the circumstances and constituted a violation of Industrial Code 23-9.6 (b) (1) which was a proximate cause of Claimant's injury.

Point IIIndustrial Code 23-9.6 (e) (8)
The Court has previously raised the possible relevance of Industrial Code 23-9.6 (e) (8) which states, in pertinent part, as follows: "[p]ersons shall enter or leave an aerial basket only when such basket is resting on the ground or grade level or cradled in the traveling position." Claimant argues that Reinhardt was forced to leave the aerial basket in violation of this provision "because Tioga mandated a single basket method for bolting and pinning." (Claimant's Post Trial Memorandum, p 7). However, a violation of this provision is contingent upon accepting the fact that Reinhardt's exit from the basket caused it to bounce and crash into the bolts. However, this Court finds that it is not possible to reconcile Claimant's testimony with Reinhardt's testimony with respect to the sequence of events. While both individuals were able to relate a chronology of events as they recalled them, they both conceded that during this short time the beam was blocking their view of each other, leaving them both guessing as to what actually caused the Genie to bounce. As such, this Court cannot put these events into a chronological order with any certainty with respect to what action caused the Genie to surge upwards. Consequently, the Court cannot find by a preponderance of the evidence whether the basket hit the bolts: (1) as a result of Reinhardt's movements; (2) the Claimant's own operation of the basket in attempting to wedge it against the beam; or (3) simply due to the alleged inherent tendency of a Genie to sway when extended to its full capacity. Accordingly, the Court cannot find that a violation of Industrial Code 23-9.6 (e) (8) was a proximate cause of this incident.
Point III
Industrial Code 23-9.6 (e) (3)
The State raises the issue of the applicability of Industrial Code provision 23-9.6 (e) (3). Industrial Code provision 23-9.6 (e) (3) states that "[b]efore the basket is moved, the operator shall observe the location of all obstructions and any other hazards which may be in the vicinity. The operator shall always face the direction in which the basket is moving or is about to move." In other words, the State has raised the issue of Claimant's comparative negligence with respect to his operation of the Genie.

It is well-settled that comparative negligence is a defense to a Labor Law 241 (6) cause of action. (
Keleher, 158 AD2d 946, lv dismissed 75 NY2d 947). Claimant contends that under no circumstances can he be held responsible for operating equipment supplied without adequate guarding and protection in a manner (e.g., the single basket method) mandated by Tioga. The Court disagrees. Claimant is responsible for being aware of his surroundings as he moved the Genie and deliberately jammed it against the beam (Neumire v Kraft Foods, 291 AD2d 784, lv denied 98 NY2d 613); a clear violation of the above-referenced Industrial Code provision. In other words, Claimant should have seen that the protruding bolts were precariously close and ominously aligned with the control levers. Accordingly, the Court finds that Claimant bears a fair amount of responsibility for his own injuries.

Based on the foregoing, it is the Court's opinion liability should be apportioned 65% to the State and 35% to the Claimant for any injuries suffered by the Claimant as a result of this accident.

The Court will set this matter down for trial on the issue of damages as soon as practicable.


March 31, 2003
Binghamton, New York

Judge of the Court of Claims

By prior Decision and Order, this Court granted the State's motion for summary judgment with respect to the negligence cause of action, Labor Law 200, 240 (1), and various provisions of the Industrial Code under Labor Law 241 (6). (Schutt v State of New York, Ct Cl, September 27, 2002, Lebous, J., Claim No. 105405, Motion Nos. M-65690, CM-65721 [UID No. 2002-019-568]). Consequently, the narrow issue before the Court on this trial was Claimant's cause of action under Labor Law 241 (6) and Industrial Code 23-9.6 (b) (1); (e) (3) and (e) (8). Unreported Decisions from the Court of Claims are available via the internet at
Unless otherwise indicated, all quotations are from the Court's trial notes.