New York State Court of Claims

New York State Court of Claims

TOMS v. THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, #2004-029-378, Claim No. 100978


Synopsis


Case Information

UID:
2004-029-378
Claimant(s):
ANDREW TOMS and KATHLEEN TOMS
Claimant short name:
TOMS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100978
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant's attorney:
Worby Groner Edelman LLPBy: Howard Frederick, Esq.
Defendant's attorney:
Boeggeman, George, Hodges & Corde, P.C.By: Stephen Slater, Esq.
Third-party defendant's attorney:

Signature date:
April 22, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Andrew Toms (hereinafter claimant) was injured on August 5, 1998 when he fell through an uncovered opening in a caisson supporting the Tappan Zee Bridge, which carries the New York State Thruway over the Hudson River. At the time, he was engaged in inspecting the bridge pursuant to a contract between the Thruway Authority and his employer, Clough, Harbor & Associates, LLP (hereinafter Clough Harbor). Although claimant brought this action against both the Thruway Authority and the State of New York, the State was not involved in the subject events and all references herein to defendant are to the Thruway Authority. Consequently, the claim against the State of New York is dismissed.

Claimant testified that he became employed as an engineer with Clough Harbor in 1987 and achieved his professional engineer's license in New York in 1988. He had various duties with the firm over the years, including bridge inspections, and in 1998 he was a Senior Structural Engineer whose role it was to supervise biennial Federally-mandated bridge inspections, including the 1998 inspection of the Tappan Zee Bridge.

Claimant advised that on August 5
th of that year, he was instructed by a colleague in his firm's Albany office to begin inspecting the bridge's caissons. He described the caissons as a series of interconnecting, multi-leveled chambers, part of the bridge's support system, that are connected via ladders in hatchways. There are main caissons and side chambers, which are accessed from the main caissons via doorways. The purpose of the inspections is to examine the concrete which forms the caissons for signs of deterioration.
On the date in question, claimant was brought to the caisson he was to inspect (number 171) by a Thruway Authority tugboat. He was told there was a light for the inside rooms and a telephone, although he found that the telephone was not working. This was claimant's first time in caisson 171, or in any of the Tappan Zee Bridge's caissons. He had an assistant with him, Anthony Fernandez, and they brought what claimant described as standard inspection tools: a gas meter, sounding hammers, and various measuring tools including calipers. The men also had two-way radios. From the tugboat, the men entered a small hut which encloses the opening in the floor and the ladder used to descend into the caisson. The plan was for claimant to inspect and for Fernandez to record claimant's observations, which would be conveyed via the radios.

Claimant lifted the access hatch, descended to the caisson's lowest level and started the inspection. When his gas meter indicated a high carbon monoxide level[1]
, claimant ascended partially and completed the inspection of the upper level of the main chamber. He then decided to inspect some of the side chambers. Apparently, various delays had occurred occasioned by events unrelated to the inspection and claimant was concerned about completing the inspection on time. He approached an opening to one of the side chambers, which was dark, and tried to find a light switch. While on his hands and knees in the side chamber, feeling for a light switch, he lost his balance while trying to brace himself on the floor and fell through a ladder well that led to another chamber below. Asked if he had a flashlight with him, claimant thought that he did but that the batteries had died.
Claimant testified that he had been provided with a BIN (bridge inspection number) folder that contained the previous biennial inspection report (which was not done by Clough Harbor) and some of the bridge plans. He indicated that it was important to know what safety flags were contained in the prior report with respect to conditions that presented a danger to either the public or to workers or inspectors on the bridge. According to claimant, there were no safety flags in the prior report and there should have been a safety flag highlighting the uncovered opening in the floor.

Anthony Fernandez essentially confirmed claimant's testimony, in particular that there was no protection over the opening into which claimant fell.

Harlan Fair, a professional engineer, testified on behalf of the claimant. He examined two photographs taken in Tappan Zee Bridge caissons (not the caisson where claimant was injured). One photograph (Exhibit 4) shows an opening in the floor, open on two sides (the other two sides are against walls) with a ladder affixed to one of the walls descending into the opening. The other (Exhibit 5) shows a similar opening with a metal railing across one of the two open sides and chains that can be affixed across the other open side. He referred to these openings in the floors as hatchways. Fair's opinion was that such an opening should be protected by either a railing with a swinging gate or by a surface-level covering that could be removed to enter the hatchway. Fair testified that standards require that the open side of a railing such as is shown in Exhibit 5 be protected by a swinging gate rather than by the chain shown in the photograph, although there was no specific reference or citation to any such standard.

Fair also testified that an area containing a ladder opening should have an overhead light that may be turned on before entering the space or as one enters the space. He opined that if the particular chamber did not have lighting, then the doorway to that chamber should be protected by a barrier. Fair acknowledged on cross-examination that a working flashlight was part of a standard inspection kit that should be provided by the worker's employer but he maintained that the flashlight was intended to be an ancillary source of light, not the main source. He admitted that inspection of large bridges was something with which he was not familiar and that he had never testified in a case involving inspection of a bridge caisson.

Stephen Grabowski, who has been employed by the Thruway Authority since 1988, was a Division Bridge Engineer at the time of claimant's accident and responsible for the maintenance of the Tappan Zee Bridge and some smaller bridges. He indicated that the Tappan Zee's biennial inspection begun in the spring of 1998 was the first one performed by Clough Harbor. The inspection covered the entire bridge, end to end, including the substructure and the superstructure, and was performed entirely by Clough Harbor personnel, with the role of the Thruway Authority being limited to providing tugboat transportation to the caissons and closing lanes when needed for inspection of roadway areas. He stated: "everything else they were on their own."[2]

Grabowski testified that the Tappan Zee Bridge contains eight caissons, which are similar but not identical. Only the "main access area" of each caisson is lighted – the shed area which provides entry to the caisson, down to the first and second levels. The light switch, which turns on all the lights in the caisson, is located in the entry shed. Grabowski indicated that providing supplemental lighting to inspect the more remote areas of the caissons (the side chambers) was the responsibility of the inspectors.

According to Grabowski, the floor openings in the frequently accessed main areas are protected by railings but the openings in the side chambers, which maintenance workers do not enter, are not. He noted that the main chambers house sump pumps at the bottom and maintenance workers inspect there approximately once a month. The side chambers serve no function other than to support the bridge and there is no reason for anyone to enter the side chambers except during the biennial inspections.

The duty the law imposes on property owners is to act with reasonable care in maintaining its property "in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (
Basso v Miller, 40 NY2d 233, 241, quoting Smith v Arbaugh's Rest., 469 F2d 97, 100; see also Preston v State of New York, 59 NY2d 997). Claimant's position is that the uncovered opening through which claimant fell and the lack of lighting in the area resulted from defendant's breach of the duty of reasonable care.
Defendant, on the other hand, argues that the area where claimant was injured was an area which was never entered other than once every other year by a professional engineer engaged in inspecting the bridge. Defendant argues that it was reasonable to assume that such an engineer would be properly equipped and notes that the Department of Transportation's 1997 Bridge Inspection Manual (Exhibit G) requires that bridge inspection teams have "proper tools available at the site" including "flashlights [and] lead or drop light (including 110 VAC power source)" (
id., H.3). Defendant relies on such decisions as Steiner v Benroal Realty Assoc. (290 AD2d 551), Marin v San Martin Rest. (287 AD2d 441) and Ercole v Academy Fence Co. (256 AD2d 305) for the proposition that a property owner is not responsible if a worker confronts an obviously dangerous condition but nevertheless elects to proceed in an unsafe manner.
The essential issue herein revolves around questions that are central to negligence law: what was the risk of injury (in terms of both likelihood and potential severity) and what would have been the burden involved in preventing such risk? Here, although the potential severity of an injury resulting from falling from one level to another was great, the likelihood of an injury was extremely small. Claimant did not dispute defendant's contention that the side chambers of the caissons were never entered, except on the biennial inspections by professional engineers, nor did claimant call into question defendant's assumption that any inspectors would bring their own lighting, as professional standards required. No evidence was produced as to construction standards in effect at the time the Tappan Zee Bridge was constructed, or at any time. Further, there was no evidence that the caissons on the Tappan Zee Bridge, including the side chambers, were any different from those on any other bridge or that they violated any applicable standard in any way. Although, in an attempt to address the question of constructive notice (which was not in issue), claimant pointed out that "the lack of lighting in nearly all of the caisson chambers, and the absence of ladderway guards – were present in the structure from the construction of the bridge 50 years ago" (Claimant's Memorandum of Law, 5-6). The Court finds that the passage of that 50-year period without any similar incident[3]
would seem to indicate that the decision not to equip the side chambers with lights was not unreasonable.
Moreover, the proof at this trial indicated that the cause of claimant's injury was two poor decisions on his part: first in undertaking the inspection without proper equipment (the proper lighting that the men should have brought with them) and then in crawling on the floor into the dark chamber and attempting to find a light switch (a switch that did not exist). In fact, claimant himself testified that had the main chamber lights not been operational, it would have been foolish to proceed in that area and he would not have done so. While sympathetic to claimant's injuries, the Court finds that an experienced inspector would not have entered the chamber with no light whatsoever. Thus, there is no basis, in the record before this court, supporting the conclusion that claimant's actions were reasonably foreseeable and the court finds that the sole proximate cause of claimant's fall was his own failure to exercise due care whether due to perceived time pressure or not.

To conclude, the court finds that claimant failed to establish a lack of due care on the part of defendant and, to the contrary, the sole proximate cause of the incident was claimant's own negligent conduct. The claim must be dismissed and the Clerk of the Court is directed to enter judgment to that effect.


April 22, 2004
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims





[1]Claimant indicated that the meter was subsequently discovered to be malfunctioning.
[2]Otherwise unattributed quotations are from the untranscribed trial tape recording.
[3] Claimant produced no proof of any similar prior accidents.