New York State Court of Claims

New York State Court of Claims

GORSKI v. THE STATE OF NEW YORK, #2006-013-516, Claim No. 98527


Case Information

1 1.The caption has been amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
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Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
November 16, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

George Gorski, an employee of Nory Construction Co. (Nory), was injured in a fall while working on a State highway project entailing the renovation of the travel surface of a bridge spanning the R-S Railroad near Buell Road in Monroe County on June 28, 1996. The amended claim alleges that the Defendant, as owner of the bridge and roadway, violated Labor Law §§240 and 241(6), as well as §200, alleging common law negligence. The trial of this decision deals solely with the issue of liability.
Claimant, a naturalized citizen who has resided in the United States for over 40 years, was a mason, learning this trade as a young man in his native Germany. He emigrated to this country in 1961 and applied his training in his own business, as well as with several other construction companies in the Rochester area. At the time of this accident he had been in the employ of Nory since early June of 1996. Nory was engaged to pour and finish the concrete deck on the bridge on Route 390 over the railroad tracks and Claimant was assigned as a “finisher.”
The bridge on which the work was being performed was elevated some 20 to 30 feet over the railroad. The concrete was pumped up to the work site from the trucks parked below. In turn the concrete was fed into a Bidwell machine which would pass over the area receiving the material. The area had been prepared by removal of the pre-existing deck, a thorough cleaning, placement of new rebars throughout and removal of any other debris that may have collected in the area prior to the pour. As described in the record, after the concrete was poured onto the bed of the bridge, a Bidwell, which may be characterized as a concrete distribution machine, evenly spread the concrete as it moved on two three-foot-high walls over the area where the material was being poured. Finishers, such as Claimant, would then follow the machine, walking along a temporary walkway made of plywood, which was to be fastened by nails to the framework, with braces affixed at spaces from the inside wall to the plywood walkway (Claimant’s Exhibit 4). According to Claimant, as he moved along the walkway, stepping over or around the braces, he had to lean over the three-foot-high wall to smooth or feather in the edges of the concrete adjacent to the walls that the machine sat on, since the Bidwell was not able to finish stepping over or around the braces.
Claimant, who was wearing high rubber boots rolled down to above his ankles, in describing the manner that he performed the work, stated that as he walked behind and in close proximity to the Bidwell, he would move his left foot behind and past his right foot in a sideways direction and step where plywood should have been placed. However, on June 28, 1996, as he was moving his left foot sideways and behind his right foot, he placed his left foot down and it allegedly went into a hole instead of landing on the expected plywood flooring. He felt himself dropping down and falling, stating that his foot dropped five to six inches down the hole and, to keep from falling further, he then threw himself forward against the wall that he had been leaning over and bounced back against a concrete wall. He testified that he then pulled his foot out of the hole, that his left knee and shin hurt and that his shin was bleeding. Once he extricated his foot, he looked down and saw what he described as a hole in the plywood, which he estimated to be about 16 to 18 inches wide. He then spotted a loose piece of plywood lying around in the vicinity and kicked it over, using it to cover the hole or gap in the plywood flooring.
According to Claimant, several people saw the incident and inquired if he was okay, including one Karla McGill, an inspector employed by Om Popili, one of two consulting contractors hired by the Defendant. Ms. McGill asked whether he was all right and he responded affirmatively. Claimant continued to work for the rest of the morning, but at the noon break he felt discomfort in his shin, removed the boot he was wearing and observed that his shin was bleeding a little. He did not report the injury to anyone and finished the day without incident. At home that evening he examined his leg and shin more closely and saw the cut/abrasion, and also experienced elbow, arm and left-leg pain. This incident took place on a Friday, June 28, and on the next workday (Monday, July 1), his foreman asked how he was doing. Claimant related that he had some pain but was looking forward to the upcoming July 4th break when he would be able rest up. He worked on that Monday, as well as the next two days, in spite of pain in his hands and down the side of his left leg.
Claimant returned to work following the July 4th holiday and described his days as fine in the morning, but by noon each day he felt pain in his left leg, which he was able to lessen by stopping and squatting for a few seconds and then standing up. This permitted him to continue to work on the site for the next week or so. In the second week following the holiday, the pain became so intense that after he spoke with his boss, he had to leave the job to see a doctor. After that visit his doctor told him not to return to work because of his left leg. He apparently remained off work for a period of time, and when he was medically cleared to return to work, it was with certain limitations. Thereafter he was told by his employer that his services were no longer needed.
Claimant acknowledged that during his previous education, training and experience over the years, he knew that it was imperative to be aware of dangerous conditions. He indicated that such awareness became instinctive over the years. He stated that he had been on this job for about four weeks and had not received any safety programs. Any written materials regarding safety were in the office, but were not distributed and he did not recall receiving them, if there had been any. When shown Exhibit N, Nory’s Accident Control Program, he stated that while he could read English, his comprehension was poor and he had to have someone explain it to him. He added that he was unaware of his employer’s policy as it pertained to an instance when an employee was injured. He acknowledged that if he observed a dangerous condition on the work site he would remedy it. He further stated that when he previously worked on a project for LeChase Construction he had received some safety training because OSHA authorities apparently were on that work site giving instructions to the workers.
Prior to commencing work on the day of his accident, he testified that he spent some time inspecting the area where he was to work, but did not walk on the wooden walkway, focusing instead on the area known as the “basket” where the rebar was set up for the pour. Debris was removed from this area by him and put on the plywood walkway, which he stated was not cleaned and averred that there was always some debris on it. He also said that he did not see any State inspectors on the walkway before the pour began, and that included the aforementioned inspector, Karla McGill. He also acknowledged that prior to commencing work that day he had not inspected the walkway and he was not observing the walkway as he performed his work prior to the fall. As noted earlier, after he placed the loose piece of plywood over the hole that he had stepped in, he continued to work and did not report what happened or that he had covered the hole.
He again stated that he did not report his accident on the day that it happened assuming that someone from Nory was going to report it, even though no one had told him that that would be done.
He admitted that not only did he work the entire day of the accident but that he had no trouble completing his assigned tasks, and continued to work each day up to a point in the second week after the July 4th holiday. He filed a report of the accident for the first time on July 17, 1996, which was the same day he had been to see his doctor who told him not to continue working. Claimant explained that he did not trip over anything before he fell and, even though there purportedly was debris on the walkway, it did not cause or contribute to his accident.
James R. Budd, an employee of the Defendant and the Engineer-in-Charge (EIC) of this project, was responsible for overseeing the construction and inspection of the work on the highways and bridges involved. He acknowledged that Ms. McGill was employed by Om Popili, one of the consulting contractors for the project, and that she had been assigned to the work on the bridges. He stated that this project involved the rehabilitation of five bridges as well as the roadway of Route 390. The bridge work consisted of, among other things, the replacement of steel and the pouring (of concrete) of the bridge deck and then opening up the new lanes to traffic. It was done “under traffic,” which he explained meant that traffic was allowed through the site so that half the bridge was done at a time. McGill was given the task of overseeing the removal of the old bridge and the erection and construction of the new one.
The field inspectors filed daily reports which Budd then reviewed. These reports included the location of the work on that day, the work classifications of the workers performing the work, the name of the contractor or subcontractor they worked for, and any communication the inspectors had with the public, contractors or subcontractors. Also included in these reports were calculations that would be needed to pay the appropriate parties for the work performed on that day. Budd also held tailgate meetings with these inspectors to discuss safety issues and any safety bulletins he received, either from Albany or from the Defendant’s regional office. If the inspectors observed or learned of an unsafe condition on the site they would contact the foreman and s/he was to then correct the condition to make it safe. The inspectors also were to note this on their daily reports if they considered it a major issue. Generally, if only a minor correction was required, it might not be reported. Should there be an injury to someone on the site that had to be reported, and if it was a severe injury, then 911 was to be notified immediately and Budd was also to receive contemporaneous notification.
Budd was not aware of this accident when it allegedly occurred and first became aware of it only when he was notified to attend a deposition. He identified Exhibit M as an Inspector’s Daily Report, dated June 28,1996, prepared by Ms. McGill. The last page of the report, called a Concrete Placement Check List, is completed by the inspector before the pour commences. It contains a check list that is completed before the pour commences and is signed and dated by the inspector, in this instance Karla McGill. Budd went on to affirm that he was never notified that Claimant had been injured on this job.
Budd testified that when he first meets with contractors he tells them that they are to report to him any unusual circumstances relating to the job and any injuries to workers. He also stated that he was never sure that they complied. He testified that a plywood walkway would generally be nailed down to the bridge and he believed it to be two feet wide. He confirmed that an inspector is to check that all debris is removed from the deck area where the rebar is set up. Whatever debris that is gathered is then removed from the work site and not left on any portion of the work site. Ms. McGill had the responsibility to supervise the pour, watch as to how it was finished, and see that the concrete was covered as it was cured.
Ms. McGill testified that in 1996 she was employed by Om Popili, a consulting engineering company, as a Level II inspector. She had been at the project site involved in this matter since April of that year and she was assigned to the field, where she was responsible for inspecting the work done on the site to ensure that it met State requirements as set forth in the plans. She was required to report to the contractors’ foremen anything she felt was unsafe or endangered the workers and request a resolution. If it was not done or was done but was still unsatisfactory, she then took it to her supervisor to seek a further resolution. If it was a serious problem, she had the authority to stop work completely until it was resolved. She also was required to file a Daily Report with the Chief Inspector which included the work done that day, the number of workers and, if she approved, the work that had to be paid for that particular day. In addition, she would include the necessary pertinent data in the event a worker was injured.
Ms. McGill acknowledged that she generated Exhibit M, containing the check list that she included in her Daily Report for June 28, 1996. She explained that it was for the pour of the deck on that day and was completed before work commenced. She noted that the list also included checks she had made the day before and included the inspection she made of the walkway on the morning of the pour. She recalled that the deck on which Claimant worked was safe and that there was no debris on it when she performed her inspection that day. She went on to testify that she recalled seeing Claimant on that day after the pour began, at around 10:00 a.m., and saw him stumble at one point. Both she and Claimant were on the walkway and no further than five to ten feet apart and he was bending over, finishing the edge of the concrete. As he stood up to move, he stumbled, caught himself and, when she asked if he was all right, he indicated that he was okay.
Since she was following him, she walked over to the area where he had stumbled, but saw nothing that would have caused him to stumble. She stated that she did not see any hole in the plywood where he stumbled and did not observe any loose plywood either. She went on to say that she was present when the walkway was initially installed approximately two weeks before the alleged accident. According to McGill, Claimant never told her that day that his foot had gone into a hole, nor did she hear him tell anyone else that day that he had stepped in a hole on the walkway. She recalled that he continued to work for approximately the next two weeks, but he alternated between the bridge that she was on and another bridge, and that when he was on her bridge she observed that he had no problem with the work. She only learned of his injury when he came to the site and told her that he was upset because he had been laid off and that Nory was denying him disability and that he was going to sue them. She saw him again later that year at a Christmas party given by her company and she observed him doing what she described as ballroom dancing. She stated that when she spoke with him at that party he again stated that he was going to sue Nory.
On cross-examination she clarified her previous testimony that, in doing her checklist, she checked some of the items the day before by explaining that before a pour she checks the area both the night before, and again the day of, the actual work and the checklist is completed before the pour. She described her process of inspection as being both visual, as well as physical. She explained that she sees to it that the walkway is clear of debris and looks for things that do not seem right. If she observed something that appeared to be loose or flimsy she would touch, grab, or shake it to test it. She went on to say that she also would kick something or jump up and down on something to test its stability and strength. While she testified that Claimant worked the entire day the day of the incident, she acknowledged that in a statement she signed on February 27, 2001,
she stated that she was not sure if he worked the full day. When confronted with this inconsistency she replied that to the best of her recollection he had worked the entire day on June 28. She also disagreed with another portion of the written statement where it stated that she saw that Claimant “stumbled, tripped and went down,” stating that he did not fall completely down (Trial Transcript, p. 210). Ms. McGill stated that she was not sure if that was meant to imply that Claimant went completely down or caught himself before he fell, as she stated in her direct testimony. In addition, she reiterated that she did not see what he stumbled on, just as she had written in the statement and as she testified on direct. She acknowledged that Claimant was a good worker but she was observing him that day because she was not familiar with his work.
Defendant raises several jurisdictional issues in its post-trial memorandum, which were raised and preserved in its answer, pursuant to Court of Claims Act §11(b), which in turn implicates §10(3) of the Act. Its argument is two-fold: (1) the Claimant failed to sufficiently describe the location (place) where he was injured; and (2) Claimant failed to meet his burden by a fair preponderance of the credible evidence at trial since he did not sufficiently describe the place where the accident occurred. To the extent that these applications can be treated as post-trial motions to dismiss, they are denied. I find that the Defendant has not been prejudiced in any manner by the alleged failure of specificity since, when it received the Notice of Claim (sic)
on September 19, 1996, it could have easily looked back at its records for the date the alleged injury occurred to locate the Claimant’s location and work assignment for that day. In addition, Defendant did not at any time during the trial offer any evidence that it was unable to properly prepare and, to the contrary, it presented a thorough and vigorous defense. In light of that, and fully acknowledging the cited language of the Court of Appeals in Lepkowski v State of New York (1 NY3d 201 [2003]), I find that on this record the Defendant was fully able to prepare and mount a defense and that the Notice of Claim (sic), the Claim and the Amended Claim adequately described the location of the accident to permit a thorough investigation.
At the close of Claimant’s case, as well as at the end of the trial, Defendant moved to dismiss Claimant’s cause of action alleging a violation of §240 of the Labor Law. I reserved on those motions, but after reviewing the record and considering arguments of counsel in their respective post-trial memoranda, I grant Defendant’s motion and dismiss that cause of action. There is no convincing proof before me in fact or in law to support such a claim.

The amended claim also asserts a cause of action pursuant to §241(6) of the Labor Law alleging that Defendant violated 12 NYCRR 23-1.7 (b) (1); 12 NYCRR 23-1.7(d) and 12 NYCRR 23-2.2(b) of the New York State Building Code. I will address each regulation seriatim, since each implicates an alleged duty owed to Claimant by the Defendant.
12 NYCRR 23-1.7 (b) (1) states:
(b) Falling hazards. (1) Hazardous openings.

(i) Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Part (rule).

(ii) Where free access into such an opening is required by work in progress, a barrier or safety railing constructed and installed in compliance with this Part (rule) shall guard such opening and the means of free access to the opening shall be a substantial gate. Such gate shall swing in a direction away from the opening and shall be kept latched except for entry and exit.

(iii) Where employees are required to work close to the edge of such an opening, such employees shall be protected as follows:

(a) Two-inch planking, full size, or material of equivalent strength installed not more than one floor or 15 feet, whichever is less, beneath the opening; or

(b) An approved life net installed not more than five feet beneath the opening; or

(c) An approved safety belt with attached lifeline which is properly se-cured to a substantial fixed anchorage.

It is Defendant’s contention that, since the alleged hole into which Claimant fell was only six inches deep, it is therefore outside of the parameters adopted by the Fourth Department in Luckern v Lyonsdale Energy Ltd. Partnership (281 AD2d, 884 [2001]), and thus the cited regulation above is not applicable. However, that is not precisely what Claimant testified to at trial. It will be recalled that he stated that his foot and ankle dropped only some six inches down into the hole before he pushed himself back to prevent going any further into the hole. It appears to me that this argument revolves around the purported depth of the hole, which Claimant suggests was perhaps thirty feet to the railroad below, contrasted with the depth that Claimant allegedly descended before he was able to catch himself.
Regardless, a careful reading of this section leads me to the conclusion that it is not applicable to this case. It is my opinion that this particular section is designed to protect workers who are required to work in and around an area designed to be open such as an elevator shaft or door opening to a deck of some design that is elevated a significant distance above the ground. This conclusion is further buttressed by the fact that 12 NYCRR 23-1.7 (b) (2) (i) and (ii) specifically address construction on bridges or highway overpasses. These provisions, however, offer little support to Claimant, since 12 NYCRR 23-1.7 (b) (2) (ii) provides that safety harnesses or belts need not be supplied where, as here, a platform was provided, thus negating the necessity of a belt or harness. Since these regulations addressing bridges and overpasses are seemingly inapplicable, Claimant obviously did not rely upon them, and focused his arguments elsewhere.
Likewise, 12 NYCRR 23-1.7 (d) does not apply, given the proof in this matter. That
particular subsection reads as follows:
(d) Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.

The record and proof before me is devoid of any evidence that the surface upon which Claimant was required to work on the day of his accident was slippery, wet or covered with a foreign substance that would have caused him to fall. In point of fact his testimony fails to even imply that his injury was caused by a slippery condition since he reiterated several times, both on direct as well as on cross-examination, that he stepped into a hole. Consequently, I find as a matter of law that 12 NYCRR 23-1.7 (d) is inapplicable to the case at bar.
Finally Claimant alleges that Defendant violated 12 NYCRR 23-2.2, Concrete Work, specifically paragraph (b) thereof which reads:
(b) Inspection. Designated persons shall continuously inspect the stability of all forms, shores and reshores including all braces and other supports during the placing of concrete. Any unsafe condition shall be remedied immediately.

Claimant offered testimony that the piece of plywood on the walkway that he was stepping onto was defective, in essence arguing that it was inherently defective since there was a hole in it. Defendant produced a witness, Karla McGill, who testified that not only had the walkway been inspected at the end of the day before the pour, but also that morning before the pour began. Still further she testified that during her inspection she would test the surface to ensure it was fastened by jumping up and down as she traversed the area. She also stated that if there was a problem she would see that it was rectified. Moreover, Claimant stated that the cause of his injury was a defective piece of plywood, not a form, shore, reshore or brace, the types of supports which this regulation addresses.
I therefore am compelled to conclude that Claimant has failed to sustain his burden of proving by a fair preponderance of the credible evidence that Defendant breached any duty imposed upon it under § 241(6) of the Labor Law or any of the subsections of 12 NYCRR 23-1.7 or 23-2.2 as alleged in the amended claim.
Finally, Claimant’s cause of action pursuant to Labor Law § 200 must also be dismissed. I am not persuaded on the proof before me that the Defendant either exercised supervision or control over the Claimant. Claimant made it clear by his own testimony that his work was directed by his employer. If there was a concern regarding that work, the Defendant’s inspectors would deal directly with Claimant’s employer, who was responsible to rectify the problem. Claimant testified that during the time he worked at this site he never received any direction or order from the Defendant. In addition, Claimant has failed to prove that the Defendant either created or had notice of the alleged dangerous condition. In fact, his testimony regarding the hole in the section of plywood he stepped upon was offset by the credible testimony of Ms. McGill who made a thorough inspection of the walkway the evening before and the day of the accident and found nothing untoward and nothing approximating a hole in the plywood walkway.
What is clear is that Claimant did “stumble” and that Ms. McGill observed that occurrence while she was behind and following him. Had the accident occurred as Claimant asserts and as he testified, the manner in which he claimed to have extricated himself would, in my opinion, hardly have been considered a stumble. Even if the Claimant had pushed or placed a piece of plywood over the hole, this would have created an elevation change that would have been easily observed by the inspector Karla McGill as she approached that area. I cannot find on this record that Claimant has presented by a fair preponderance of the credible evidence that he was injured in the manner described. Thus I find that there is insufficient credible evidence to support a finding of liability based upon Labor Law §200 or common law negligence. Indeed, it appears that Claimant acknowledged as much as he relied exclusively in his post-trial memorandum and reply memorandum on allegations pertaining to Labor Law § 241(6).
While Claimant presented a sympathetic and sincere claim, and his testimony was earnest, unfortunately the proof could not sustain a finding of liability on any of the pleaded causes of action. Accordingly, upon review of all the evidence and after due consideration of the testimony, the claim must be, and hereby is, dismissed.
All motions not heretofore decided are now denied.

November 16, 2006
Rochester, New York

Judge of the Court of Claims

  1. [2]Since Claimant had trouble understanding English and the questions being asked, the hole was described in various ways by him and led to some confusion. From the way he described it, it appears that the hole was created by a piece of plywood having broken off (Trial Transcript, p. 104).
[3]. This statement, while marked as an exhibit, was not received in evidence.
  1. [4] The proper denomination for the paper referred to is Notice of Intention to File a Claim.
  2. [5]Indeed, in his post-trial memoranda, Claimant does not assert or argue in support of a cause of action under Labor Law §240.