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.
W. JAMES SCHUTT
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
THE ROTHSCHILD LAW FIRM, P.C.BY: Martin J. Rothschild, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Mlynarski & Cawley, P.C.Theodore J. Mlynarski, Jr., Esq., of counsel
March 31, 2003
See also (multicaptioned
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
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
. 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
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
, 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.,
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,
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]).
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
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
Point IIIndustrial Code 23-9.6 (e)
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.
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. (
, 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,
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
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
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 http://www.nyscourtofclaims.state.ny.us/decision.htm
Unless otherwise indicated, all quotations are from the Court's trial