New York State Court of Claims

New York State Court of Claims

MORTON v. THE STATE OF NEW YORK, #2003-028-002, Claim No. 96522


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:
BY: Marvin Salenger, Esq. and Michael F. Schwartz, Esq.
Defendant's attorney:
BY: Ricardo Montano, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 9, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this Claim involving a trench collapse was bifurcated and the decision herein addresses solely the issue of liability. Claimant[1]
seeks damages pursuant to Labor Law §241(6), his central contention being that the failure to shore or brace the trench in which he was directed to work violated provisions of the Industrial Code and that such violations were the proximate cause of his injuries[2].
Claimant was employed by New York Water Service Company (NY Water), a private company which provides water service to portions of Nassau County. On April 3, 1997, the date Claimant was injured, NY Water was repairing an underground water main, which was located beneath Carmen Mill Road in Massapequa, Nassau County[3]
. NY Water did not possess a Highway Work Permit for the repairs made on April 3, 1997, nor did NY Water notify the State Department of Transportation (DOT) before commencing the repairs on that date.
On April 3, 1997, Claimant was a member of a four person work crew, headed by the working foreman, Michael Kane (Kane), a 25 year employee of NY Water. Kane testified that as the working foreman he was responsible for directing the work and the crew. On the day in question, Kane observed the work being performed and witnessed the collapse of one bank of the excavation site onto Claimant's leg.

When the crew arrived at the Carmen Mill Road site, water was "coming up pretty good"[4]
through the asphalt. Consequently, the crew notified customers, shut off water and then made test holes to ascertain where to dig to access the water main. The crew used a backhoe to excavate "mostly sand and mix" to reach the water main. Kane described a water main as generally being four feet beneath the road surface and he stated that he had no reason to believe the Carmen Mill Road water main was closer than that to the road surface. In order to make the necessary repairs to the 12-inch water main it was necessary for the crew to dig beneath the water main. Kane testified that he did not instruct the crew to brace or shore the excavation. On cross-examination, he testified that he made no measurements of the excavation and made the decision not to brace or shore the excavation based upon his experience. Claimant, who held no position of authority on the work site, was required to enter the excavation to clean around the main and apply the repair clamp. Kane stated that Claimant performed his duties according to the instructions he was given.
Kane testified that he was generally aware of some requirements for shoring excavations and when confronted with his deposition transcript, acknowledged the specific requirement that excavations deeper than five feet must be shored. When pressed as to the depth of the at-issue excavation, Kane, who did not enter the excavation, approximated the depth at five feet - more or less.

Claimant, a laborer with six years experience on the job, testified that he followed all the instructions he was given on April 3, 1997. Claimant explained that his duties required him to enter the excavated area, which he accomplished by sliding into the hole or trench. Once in the excavation, Claimant cleared dirt from beneath the water main to create enough space to both clean the water main using a "chain scraper" and to apply the repair clamp. While using the chain scraper, it was necessary for Claimant to straddle the water main and lean forward, bringing his chest within three feet of the water main. Claimant, who testified he was 5' 10" tall, said that while standing in the hole "my head was below the roadway surface" and I "could barely touch the top of the road surface with my hand." On cross-examination, Claimant conceded that he had no generalized knowledge of the "New York State safety rules" which required shoring or bracing. Claimant did not request shoring and bracing on April 3, 1997 and to his knowledge such equipment was not available at the Carmen Mill Road site. During his tenure with NY Water, Claimant had been on only one prior job - installing an oil tank - where a "box type" shoring was used. Claimant testified he was injured on April 3, 1997 when one wall of the excavation collapsed, pinning his leg to the water main.

In order to establish a cause of action under Labor Law §241(6), Claimant must allege and prove the Defendant violated a rule or regulation of the New York Industrial Code, which sets forth a specific standard of conduct, as opposed to a general reiteration of common law principles (
Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494). Moreover, the violation of that specific standard must be shown to be a proximate cause of the accident. (Ares v State of New York, 80 NY2d 959).
Claimant has identified Industrial Code regulations12 NYCRR § 23-4.1(b); § 23-4.2(a); §23-4.2(g) and § 23-4.4(a) to establish his claim under Labor Law §241(6) each of which this Court has held to contain specific guidelines (
see, Morton v State of New York, supra) which, if applicable, could establish a claim pursuant to Labor Law § 241(6). The Court will focus on the at-issue regulations which require, in sum and substance, that excavations which are five feet in depth, or greater, be protected either by banked or sloped sides (see, § 23-4.2[a]) or "sheeting, shoring and bracing" (§ 23-4.4[a]).
The record evidence establishes, and the Court finds, that the excavation on Carmen Mill Road was neither protected by sloped or banked sides nor appropriate sheeting, shoring or bracing. However, Claimant has failed to establish that the soil composition was such that would require appropriate safety measures for an excavation less than five feet deep (
see, Monsegur v Modern Comfort Technology, 289 AD2d 307). Thus, the critical inquiry, as it was on the summary judgment application is the depth of the excavation. In this regard, the Court credits the testimony of the Claimant as to the depth of the excavation and finds it to be more than five feet deep. The Court is persuaded by Claimant's reference to the depth of the hole relative to Claimant's stated height. The testimony of Kane, although equivocal, is not inconsistent with the Court's finding given his testimony regarding the usual depth of a water main (four feet), the size of the water main (12 inches) and the need to excavate beneath the main to effectuate the repairs.
In light of the foregoing, the Court finds that 12 NYCRR
§ 23-4.2(a) and § 23-4.4(a) were violated when the requirements for safeguarding excavations from collapse were not followed. On the instant facts, it necessarily follows that § 23-4.1(b) was also violated by the absence of banking or shoring. The Court further finds that the foregoing violations of the Industrial Code were a proximate cause of Claimant's accident, and as such a violation of the Defendant's nondelegable duty under Labor Law §241(6) (see, Celestine v City of New York, 59 NY2d 938, aff'g on opn. at 86 AD2d 592).[5]
Claimant entered the unguarded
excavation at the direction of his working foreman. There was no testimony that Claimant's actions while performing his required work contributed to the collapse which injured him. Moreover, Claimant candidly testified that he lacked knowledge of the applicable safety standards. Thus, the Defendant, although afforded an opportunity at trial, failed to establish by a preponderance of the credible evidence that any comparative negligence was attributable to the Claimant.
Accordingly, the Court finds the Defendant was negligent and 100% liable for the injuries sustained by the Claimant on April 3, 1997.

All motions made at the time of trial, not heretofore determined, are deemed denied.

The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for a trial on the issue of damages as soon as practicable.

Let interlocutory judgment be entered accordingly.

The parties shall appear at a conference to be held on May 7, 2003 at 12:30 p.m. in Chambers, State Office Building, Veterans Memorial Highway, Hauppauge, New York.

April 9, 2003
Albany, New York

Judge of the Court of Claims

[1] The Claim of Debra Morton is derivative, and unless otherwise specified all references to Claimant shall refer to her husband, Alan Morton.
[2] In Morton v State of New York, Ct Cl, Sise, J., October 22, 2002, Claim No. 96522, Motion No. M-65545 and CM-65714, the Court dismissed the common law negligence and Labor Law § 200 causes of action asserted by Claimants and denied Claimants' motion for summary judgment finding questions of fact as to the depth and the soil composition of the at-issue excavation. In light of those findings, the question of Claimant's comparative negligence was not reached on the motion.
[3] The parties stipulated on the record that Carmen Mill Road was part of the New York State highway system and a State controlled roadway pursuant to Highway Law § 341-29(1).
[4] Unless otherwise noted, all quotations are from the Court's notes or the audiotapes of the proceedings.
[5] The Court does not reach the applicability of 23-4.2(g) to the instant Claim in light of its finding Defendant liable for the stated violations of the Industrial Code.