LOCKWOOD v. THE STATE OF NEW YORK, #2004-019-548, Claim No. 101827, Motion No.
State's motion for summary judgment with respect to Labor Law 200 and Labor Law
240 (1) is granted.
IN THE MATTER OF THE CLAIM OF GILBERT E. LOCKWOOD
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C.BY: Harry J. Forrest, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Phelan, Burke & Scolamiero, LLPTerese Burke Wolff, Esq., of counsel
June 15, 2004
See also (multicaptioned
The State of New York (hereinafter "State") moves for summary judgment pursuant
to CPLR 3212 dismissing claimant's common-law negligence and Labor Law 200 and
240 (1) causes of action. Claimant opposes the motion. The State does not move
against claimant's Labor Law 241 (6) cause of action.
This claim arose on October 2, 1996, at approximately 3:30 p.m., at a State
bridge rehabilitation project on Route 17 near the Towns of Colchester and Cooks
Falls, Delaware County, New York (hereinafter "Project"). At the time of this
incident claimant was an employee of Lancaster Development (hereinafter
"Lancaster"), the general contractor for said Project. As part of said Project,
claimant was responsible for chipping away old concrete from a bridge using a
jackhammer. In order to complete this task, claimant and a co-worker, Kevin
Sandell, had personally erected a scaffold standing approximately 30 feet high
and placed it on cobble rocks. (State's Exhibit E, pp 27-28). Also, apparently
two of the scaffold's feet were placed in the creek bed (State's Exhibit E, pp
27-28), despite the installation of concrete slabs on which to place the
scaffold. (State's Exhibit F, p 73). Further, claimant described wedging flat
rocks under the scaffold's feet in order to stabilize the scaffold. (State's
Exhibit E, pp 37-38). Nevertheless, claimant stated during his deposition that
ultimately the movement of the scaffold was nothing out of the ordinary.
(State's Exhibit E, pp 40-41). The scaffold had a safety railing around the
perimeter of the top level. This accident occurred "[w]hen the jackhammer that
[claimant] was using fell from the scaffold where he was working. As claimant
attempted to prevent the jackhammer from falling by grabbing its air hose, he
injured his neck, shoulder, arm and back." (Matter of Lockwood v State of
New York, 267 AD2d 832, 832; see also Claimant's Affidavit, ¶
4). It is undisputed that claimant did not fall from the scaffolding or fall
onto the scaffold itself.
This claim was filed on January 24, 2000.
The State filed a Verified Answer on March 1, 2000. By way of this motion, the
State seeks summary judgment on the causes of action based upon common-law
negligence and Labor Law 200 and 240 (1), although the State does not address
claimant's cause of action based upon Labor Law 241 (6).
I. Labor Law 200 and common-law negligence
Labor Law 200 is "[a] codification of the common-law duty of an owner or
contractor to exercise reasonable care to provide workers with a safe place to
work [citations omitted]." (Miller v Wilmorite, Inc., 231 AD2d 843,
843). However, it is well-settled that "[g]eneral supervisory authority at the
work site for the purpose of overseeing the progress of the work and inspecting
the work product has been found insufficient to establish a cause of action
under Labor Law § 200 [citations omitted]." (Riccio v Shaker Pine,
262 AD2d 746, 748, lv denied 93 NY2d 1042).
The State contends that claimant's own deposition testimony establishes that
the State did not provide him with any materials or equipment on this Project or
provide any instructions on what to do or how to do it relative either to the
scaffold, equipment, or the work itself. The court agrees that claimant
specifically testified during his deposition that he received no instructions
regarding how or where to erect the scaffold, the operation of his equipment, or
how to conduct his work, from any State employee. (State's Exhibit E, pp 19-20,
28-29, 38-39). In this court's view, the State's reliance on claimant's own
deposition testimony is sufficient to satisfy the State's initial burden of
establishing that it lacked supervision or control. As such, the burden shifted
to claimant to come forward and lay bare his proof on this issue.
In opposition, claimant emphasizes that two State workers were present at the
work site, namely one David Bump and Dave Baskerville. Mr. Bump was an
inspector on said Project whose function was to insure that the contractor was
performing the job properly. (State's Ex F, pp 9-10). Mr. Baskerville was the
inspector for the bridge portion of the Project whose duties included marking
the areas of concrete to be removed. (State's Ex E, p 21, & Ex F, pp 14
& 52). Claimant avers that Mr. Baskerville commented that the scaffold was
shaky and that claimant was "crazy" for working on such a shaky scaffold.
(Claimant's Affidavit, ¶ 6). Mr. Bump was deposed and the transcript
thereof is annexed to the parties' papers, but no affidavit or deposition from
Mr. Baskerville is submitted by either party.
The State characterizes claimant's representations regarding Mr. Baskerville's
statements as hearsay and argues they should be inadmissible on a motion for
summary judgment. Although hearsay may be used to oppose a summary judgment
motion, "[s]uch evidence is insufficient to warrant denial of summary judgment
where it is the only evidence" submitted in opposition. (Narvaez v
NYRAC, 290 AD2d 400, 400-401). Here, there is no explanation for the
failure to submit Mr. Baskerville's alleged statement in admissible form.
(Shapiro v Butler, 273 AD2d 657). Nevertheless, even assuming,
arguendo, that the court were to accept the truth of Mr. Baskerville's
statement attributed to him by claimant, in this court's view, such a statement
is not tantamount to proof of the actual supervision and control necessary to a
proper Labor Law 200 claim. The court finds although State representatives may
have instructed Lancaster employees, such as claimant, on what to do, there is
no evidence that any State representative instructed him on how or where to
erect the scaffold or how to operate and/or maneuver his equipment or perform
his job. In short, claimant has failed to come forward with any proof in
admissible form establishing the State controlled or supervised the work which
was performed. Accordingly, the State's motion for summary judgment with
respect to Labor Law 200 and the negligence causes of action is granted.
II. Labor Law 240 (1)
The State's motion addresses the two facets of claimant's theory of liability,
namely the shaky scaffold and the failure to secure the jackhammer.
(Lockwood, 267 AD2d at 832). It is well-settled that Labor Law 240 (1)
was enacted "[i]n recognition of the exceptionally dangerous conditions posed by
elevation differentials at work sites...for workers laboring under unique
gravity-related hazards [citation omitted]." (Misseritti v Mark IV Constr.
Co., 86 NY2d 487, 491, rearg. denied 87 NY2d 969). Moreover, it is
an accepted tenet that "[t]he extraordinary protections of Labor Law § 240
(1) extend only to a narrow class of special hazards, and do 'not encompass
any and all perils that may be connected in some tangential way with the
effects of gravity' (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494,
501 [emphasis in original])." (Nieves v Five Boro Air Conditioning &
Refrig. Corp., 93 NY2d 914, 915-916).
With respect to the scaffold, the State urges this court to conclude that the
scaffold, even if conceded to be shaky, performed its core objective of
preventing claimant from falling. (Narducci v Manhasset Bay Assocs., 96
NY2d 259). In opposition, claimant concedes that he did not fall from or onto
the scaffold, but asserts that the rocking of the scaffold caused the jackhammer
to slip out of his hands and thus was defective. (Claimant's Affidavit, ¶
The Court of Appeals statements regarding the purpose of the safety device
under the statute, in similar circumstances, was well stated in Ross v
Curtis-Palmer Hydro-Elec. Co. as follows:
[i]n other words, Labor Law § 240 (1) was designed to prevent those types
of accidents in which the scaffold, hoist, stay, ladder or other protective
device proved inadequate to shield the injured worker from harm directly
flowing from the application of the force of gravity to an object or person.
The right of recovery afforded by the statute does not extend to other types of
harm, even if the harm in question was caused by an inadequate, malfunctioning
or defectively designed scaffold, stay or hoist.
The facts in this case provide a good illustration of the distinction. If
plaintiff's allegations are accurate, the platform with which plaintiff was
provided could well be found deficient or even unsafe, since it was placed in a
way that required its occupant to work in a strained and contorted position.
Nevertheless, however unsafe the makeshift "scaffold" may have been in that
respect, it cannot be said that the device did not serve the core objective of
Labor Law § 240 (1)—preventing plaintiff from falling down the shaft.
In that regard, the device did not malfunction and was not defective in its
design. Thus, as was noted by the dissenter in the Court below, plaintiff's
injuries allegedly flowed from a deficiency in the device that was "wholly
unrelated to the hazard which brought about its need in the first instance" (180
AD2d, at 394 [Mercure, J., dissenting in part]). Accordingly, contrary to the
views of the Appellate Division majority, plaintiff cannot rely on Labor Law
§ 240 (1) as a basis for recovery.
(Ross, 81 NY2d at 501; emphasis in original).
Likewise here, claimant was provided with a safety device, the scaffold, that
served its core objective of preventing him from falling. (Narducci, 96
NY2d at 269). As such, this court finds that the scaffold here served its
intended purpose of protecting claimant from falling and may not form the basis
for 240 (1) liability.
The court next turns to claimant's second basis for liability under Labor Law
240 (1), namely "[t]he absence of any means to secure or tie off the jackhammer
to prevent it from falling." (Lockwood, 267 AD2d at 832). In other
words, claimant attempts to categorize his accident as a "falling object" case.
Claimant argues that his jackhammer constitutes a "falling object" because his
injury resulted from the operation of gravity on the jackhammer which pulled him
down due to the absence of a suitable safety device to secure the jackhammer.
The State argues that the facts of this case do not qualify as a falling object
case since the jackhammer was not an object being hoisted or secured.
The court agrees that this case does not fall within the so-called "falling
object" cases because claimant was never hit by a falling object and the
jackhammer itself was not a material being hoisted or a load that required
securing for the purposes of the job at the time. (Narducci, 96 NY2d at
268). It is well-settled that in a falling object case, the "[p]laintiff must
show that the object fell, while being hoisted or secured, because of the
absence or inadequacy of a safety device of the kind enumerated in the statute."
(Narducci, 96 NY2d at 268; [emphasis in original]). In other words, the
jackhammer cannot be said to have fallen "because of" the absence or inadequacy
of a safety device. (Id.). Rather, the risk here - that claimant might
drop his jackhammer and reach to grab it would have "[e]xisted regardless of
whether plaintiff was standing on a scaffold or elevated site [citations
omitted]." (Schwab v A.J. Martini, Inc., 288 AD2d 654, 655). As such,
this court finds that even if claimant's injuries were caused by the failure to
secure or tie off the jackhammer to prevent it from falling, said injuries were
not the result of the special type of elevation-related occupational hazards
that fall within Labor Law 240 (1). (Sutfin v Ithaca Coll., 240 AD2d
989; Bailey v Lafayette Paper, 289 AD2d 645).
Additionally, the court notes that it finds Sasso v NYMED, Inc., 238
AD2d 799, distinguishable on the facts. In Sasso, plaintiff was standing
on a scaffold attempting to install a 50-pound piece of sheetrock above his
head when it started to fall and he reached out to grab it injuring his
back. The Third Department found that the sheetrock qualified as material that
was being hoisted or secured and should have been secured with a safety device
pursuant to Labor Law 240 (1). Here, the jackhammer was not material being
hoisted or secured nor was the jackhammer at a different level than claimant.
In sum, the court finds that claimant was harmed by the usual and ordinary
hazards on a construction site and not the extraordinary elevation risks covered
by Labor Law 240 (1). (Gordon v Eastern Ry. Supply, 82 NY2d 555).
Finally, the court again notes the State has not moved to dismiss claimant's
cause of action based upon Labor Law 241 (6) and, as such, this court makes no
finding relative to the viability of claimant's Labor Law 241 (6) cause of
action. Consequently, claimant's cause of action based upon Labor Law 241 (6)
remains for trial absent further motion practice.
Accordingly, for the reasons stated above, it is ORDERED that the State's
Motion for Summary Judgment, Motion No. M-68350, is GRANTED relative to Labor
Law 200 and 240 (1) in accordance with the foregoing. As such, only claimant's
Labor Law 241 (6) cause of action which was not the subject of this motion,
remains for trial. Inasmuch as claimant previously filed a Note of Issue the
court will schedule a preliminary conference for the purpose of scheduling a
trial on the remaining issue.
June 15, 2004
HON. FERRIS D. LEBOUS
Judge of the Court of Claims
The court has considered the following papers in connection with this
Claim, filed January 24, 2000.
Notice of Motion No. M-68350, dated and filed April 21, 2004.
Affidavit of Kevin P. Burke, Esq., in support of motion, sworn to April 21,
2004, with attached exhibits.
Memorandum of Law, in support of motion, dated April 21, 2004.
Amended Notice of Motion No. M-68350, dated April 27, 2004, and filed April 29,
Affirmation of Harry J. Forrest, Esq., in opposition to motion, dated May 19,
2004, and filed May 24, 2004, with attached exhibits.
Affidavit of Gilbert E. Lockwood, in opposition to motion, sworn to May 15,
2004, and filed May 24, 2004.
Memorandum of Law, in opposition to motion, dated May 19, 2004.
Reply Affidavit of Terese Burke Wolff, Esq., in support of motion, sworn to
June 1, 2004, and filed June 2, 2004.
Reply Memorandum of Law, in support of motion, dated May 28, 2004.
The Third Department reversed the trial
court's denial of claimant's motion for permission to file a late claim.
(Matter of Lockwood v State of New York
, 267 AD2d 832, reversing
, Ct Cl, dated March 22, 1999 and filed March 31, 1999, Hanifin,
J., Claim No. none, Motion No. M-58333).