SCHINKEL v. THE STATE OF NEW YORK, #2004-016-029 , Claim No. 102944
ANDREW SCHINKEL and LAURA SCHINKEL
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Brody, O'Connor & O'Connor, Esqs.By: Scott A. Brody, Esq.
Eliot Spitzer, Attorney General
By: Wade, Clark & Mulcahy, Esqs., Of CounselBy: Robert J. Cosgrove, Esq.
May 25, 2004
See also (multicaptioned
This is the decision following the liability trial of the claim arising from
the injury of Andrew Schinkel while working at a construction site on June 9,
2000. Mr. Schinkel's wife, Laura, is also a claimant, but since Mrs. Schinkel's
cause of action derives from her husband's, references herein to "Schinkel" and
to "claimant" will mean Andrew Schinkel, and the singular "claimant" will refer
to both claimants in describing their position on a particular issue or the use
of a case as precedent.
In early June of 2000, Schinkel was an electrician employed by Johnson Electric
Company on a contract (Project 258-188) entered into by the State of New York
for reconstruction along exits 36 through 40 of the Long Island Expressway (LIE)
in Nassau County. Johnson Electric was the subcontractor retained to do all the
lighting and traffic signal work; the general contractor was
Posillico/Scalamandre (cl exh 4).
Johnson Electric's responsibilities included temporary lighting that was needed
for construction. On June 9, claimant together with journeyman electrician
Richard Kanusch and foreman Craig Robbins, all employed by Johnson Electric,
were working as a crew at the Roslyn Road Bridge and the LIE. Schinkel was
injured when his finger got caught between a light pole and a stack of steel
girders, severing its tip (cl exhs 2 & 3).
Claimant's causes of action are grounded upon Labor Law §241.6, as well as
§200 (see below). Section 241.6 creates a non-delegable duty on the part
of the owner of a construction work site (
Allen v Cloutier Construction Corp.
, 44 NY2d 290, 405 NYS2d 630 (1978) to
provide "reasonable and adequate protection and safety" for workers, but the
provision is implicated only when based upon the violation of a concrete safety
standard set by regulation of the Commissioner of Labor (Ross v Curtis-Palmer
, 81 NY2d 494, 601 NYS2d 49 (1993)).
cites two regulations as predicates to its §241.6 cause of action:
- 12 NYCCR 23-8, a subpart entitled "Mobile Cranes, Tower Cranes and
Derricks," specifically relying upon 23-8.2(c)(3), which relates to load
hoisting using a mobile crane; and
- 12 NYCRR 23-1.7(e), which is entitled "Tripping and other hazards."
Hoisting the Lighting Pole
At around 2:45 in the afternoon, claimant and Mr. Kanusch were in the process
of removing a temporary light pole, which was located on a median adjacent to
the entrance ramp to the eastbound LIE. Kanusch described the basic process in
his deposition testimony of April 3, 2003
We have a line truck with a boom on it, and the boom is a cable. We attach
the cable to the top of the pole secured. We unloosen the bolts on the bottom
of the pole to free it from where it's connected and then we lift it up and we
swing it over and we set it down wherever we need to put it.
compared his role with that of Schinkel: Kanusch operated the boom truck;
"was to unbolt the bottom of the pole from wherever it was
mounted and to steady the [lighting pole] as I lift it."
Kanusch explained that a nylon sling comes off the line from the boom
"[T]he cable is metal and then we put a connection on it, it goes to
[the] nylon sling so you don't scratch and damage the pole" and then the sling
is tightened around the pole. According to Kanusch, the sling is attached to
the lighting pole early on in this maneuver, "[b]asically the first thing before
the bolts are unloosened" - - in this case by Schinkel.
After the pole was lifted, the two men "moved it to the right about six or
eight feet . . . to clear the base [
the concrete barrier], and then we went to shut it down for storage." The pole
was set down on top of a 30-foot-long steel I-beam, part of a stack of about six
Schinkel testified on cross-examination that the pole
was at rest:
Q. And when the pole was on the girders, it was stationary, right?
Q. If it wasn't stationary, you wouldn't have started to work, right?
Continuing with Mr. Kanusch's recollection:
Q. After the pole was laid down flat what did Mr. Schinkel do?
A. I believe the pole started to roll and he just reached out to keep the
pole from banging into the steel, and that's when I believe he caught his finger
between the pole and the steel.
Kanusch saw claimant's hand get pinched:
" After the pole was set down and we were releasing the load to take the lines
out, the pole started to roll and he instinctively went to grab [it] . . . "
Section 23-8.2 applies to mobile cranes like those functioning off a truck used
at construction sites.
Claimant relies upon paragraph (c)(3) of this section which in its entirety
Loads lifted by mobile cranes shall be raised vertically so as to avoid
swinging during hoisting except when such operations are permitted by the
capacity chart. A tag or restraint line shall be used when rotation or swinging
of any load being hoisted by a mobile crane may create a hazard.
On its face, this regulation does not apply to the credible evidence presented
in this case.
Schinkel testified at one point that the lighting pole was leaning against the
steel girders, but to this trier of fact, the pole was placed on top of the
stack and had come to rest. Claimant cites Smith v Hovnanian Company,
, 218 AD2d 68, 71, 633 NYS2d 888, 890 (3d Dept 1995), with facts
("Plaintiff was injured when he was pinned between a wall and the load of
sheetrock that was being unloaded from the truck with the extension boom . . .
it must have been the movement of the load of sheetrock that caused plaintiff to
be pinned to the wall . . . the sheetrock was moving horizontally, as a result
of swinging or rotation caused by the extension boom") and analysis ("The
regulation was clearly designed to protect workers from the hazards created by
the horizontal movement of a load caused by a mobile crane") that do not obtain
Penta v Related Companies, L.P.
, 286 AD2d 674, 730 NYS2d 140 (2d Dept
2001), affirming the finding that §23-8.2(c)(3) did not comprehend a
situation in which plaintiff was struck by
the hook on a crane when the
hook swung free after a coworker released a load of wood delivered to a floor of
a building under construction, since it was undisputed that the crane was not
hoisting a load at the time of the accident. Compare Stang v Garbellano
262 AD2d 853, 692 NYS2d 229 (3d Dept 1999), in which a sign being pushed into
place would not have become detached from a mobile crane and fallen on
plaintiff's arm had a tag line been used.The Working Area
Claimant next argues that §23-1.7(e)(2) was violated because the small
triangular median area was so cluttered with debris that there was no way to
lower the light pole such that it would lie flat on the ground. The provision
reads as follows:
(e) Tripping and other hazards
. . . (2) Working areas
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
A number of photographs were introduced into evidence that witnesses identified
as fairly representing how the median area looked when Mr. Schinkel was injured
(cl exhs 1C through 1G; exh 1J; and exhibits 1L through 1N). While at least one
picture shows a messy area with material that does not apparently have any
future purpose (see cl exh 1N)
, in general, what is sitting on the median are items that are to be used,
although not as part of the task claimant was involved in that day: orange
traffic cones (see, e.g.
, cl exhs 1C and 1F); white sandbags used to hold
down traffic control devices which are mounted or affixed to white hurdle-like
frames (see, e.g.
, cl exh 1D); and girders for bridge rehabilitation at
the site (see, e.g.,
cl exhs 1E, 1J and 1M).
language of 1.7(e) of Rule 23 does not comprehend the adequacy of this work
space. Claimant, as noted, only cites paragraph (2) of subdivision (e).
Immediately preceding it, paragraph (1) provides: "Passageways
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."
Read together, it is clear that the focus of subdivision (e) of §23-1.7 is
tripping and cuts or punctures from sharp projections or
Claimant cites the following cases, which offer insufficient support for his
position that the cramped Roslyn Road working area, caused or exacerbated by the
kinds of things in the median, implicates §23-1.7(e):
Laboda v VJV Development Corp.
, 296 AD2d 441, 745 NYS2d 67 (2d
Dept 2002); and Faulkner v Allied Manor Road Company
, 306 AD2d 224, 760
NYS2d 853 (1st Dept 2003). Laboda
is distinguishable as involving a trip
and fall over bricks which the Second Department described as "strewn in front
of the house he was constructing . . . " In the second case, the triable issue
in the First Department's vacating the grant of summary judgment to the
defendant was whether Mr. Faulkner tripped over old roofing material while he
was installing new roofing.
In Smith v Hovnanian, supra
, which claimant cites in support of
his position on the mobile crane load-hoisting provision of Rule 23, the Third
Department strongly suggests that if a cause of action exists based upon a
constricted work area, claimant must look beyond §241.6 of the Labor Law:
"that the area where the sheetrock was to be unloaded was so cluttered with
debris that there was no safe place to unload the sheetrock . . . is, in our
view, sufficient to state a cause of action based upon a violation of the
common-law safe place to work requirement (see
, Labor Law §200). . .
" 218 AD2d at 72, 633 NYS2d at 890. Labor Law
Liability under §200 of the Labor Law attaches only to a defendant who
exercises control or supervision over the job site. In
Rizzuto v L.A. Wenger Contracting Co., Inc.
, 91 NY2d 343, 352, 670 NYS2d
816, 821 (1998), the Court of Appeals enunciated the standard as whether such
defendant has "the authority to control the activity bringing about the injury
to enable it to avoid or correct an unsafe condition" (emphasis and citations
In our case, the State of New York had an engineer in charge, Bruce Ogurek, who
testified that while he visited the Roslyn Road location daily, he did not
supervise or control any work performed by the employees of Johnson Electric
(including specifically that done on June 9, 2000). The State had hired outside
consultant firms to do inspections, entities that for these purposes were agents
of the defendant; their employees reported to Mr. Ogurek.
Ogurek and the consultants had the task of monitoring the progress of the work
to ensure that it complied with the contract specifications; they did not
oversee the methods used to achieve the contractually mandated result. They
also bore responsibility for safety violations; only Mr. Ogurek had the ultimate
authority to stop work or shut down a site. In any event, either Ogurek or the
consultants would first call the violation to the attention of the contractor.
As to the placement of permanent lighting by Johnson Electric,
Ogurek, who was straightforward, matter-of-fact - - and credible - - testified
that the State's direction of the work was to "make sure it's being installed in
the place shown on the plans." With regard to temporary lighting, the State's
engineer explained that "the way the spec is written, it just requires the
contractor to maintain a certain level of lighting. I believe it's 90%. How he
does that is, is pretty much up to him."
Ogurek stated that
he was never made aware of any safety problems with respect to the job site.
Schinkel had recalled that, "[w]e had been working on the other side of the
expressway and the foreman told us to, to come to this site because this had to
be done." Claimant testified that he had done this task five or six times
before (he was not clear whether this included other jobs), always with the
light pole flat on the ground and without problem.
In sum, the requisite level of control or supervision on the part of the
defendant does not obtain here. See also
Comes v New York State Electric and Gas Corporation
, 82 NY2d 876, 609
NYS2d 168 (1993).
* * *
In view of the foregoing, claimants have failed to meet their burden that the
defendant State of New York is liable for Andrew Schinkel's injury of June 9,
2000, and claim no. 102944 is therefore dismissed. Any motion not previously
ruled upon is hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
May 25, 2004
New York ,
HON. ALAN C. MARIN
Judge of the Court of Claims
See General Business Law §481.3.