New York State Court of Claims

New York State Court of Claims

WYNNE v. THE STATE OF NEW YORK, #2007-029-032, Claim No. 110003, Motion No. M-73014


In a Labor Law claim arising out of an accident in which claimant was operating a truck at ground level when the surface gave way due to an underground storage tank, defendant was awarded summary judgment of dismissal of the section 240(1) and 241(6) claims, but there were issues of fact preventing summary dismissal of the section 200 and common-law negligence claims. AFFIRMED 53 AD 3d 656 Second Dept.

Appellate Result:
AFFIRMED 53 AD 3d 656 Second Dept.

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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
August 20, 2007
White Plains

Official citation:

Appellate results:
AFFIRMED 53 AD 3d 656 Second Dept.
See also (multicaptioned case)


Defendant moves for summary judgment [1] in regard to claimant’s claims pursuant to provisions of the New York State Labor Law and common law negligence. Claimant seeks damages for injuries allegedly incurred in a highway construction accident on October 25, 2002, at Exit 126 on Route 17 in Orange County.

Claimant was employed as a dump truck driver by defendant’s contractor, engaged in the reconstruction of the Route 94/Route 17 interchange in Orange County, specifically the construction of a new Exit 126 off ramp. His job was to drive loads of fill from one portion of the site to another. When the subject incident occurred, he was sitting in his loaded truck on a dirt road that was to become the new exit ramp, adjacent to southbound Route 17. As he sat in the truck, he suddenly felt the rear end of the truck drop and the front end rise and then fall and the truck then rolled to the left. Claimant’s head, shoulder and hip struck the inside of the truck’s frame and other parts of the cab’s interior. In claimant’s words, “[t]he ground opened up.” [2] When he got out of the truck and looked in the hole, it looked to him like an old septic tank.

Defendant’s alleged liability is predicated on Sections 200, 240(1), and 241(6) of the Labor Law. Section 200 is a codification of the common law duty of owners and contractors to provide a safe place to work (Lombardi v Stout, 80 NY2d 290 [1992]). “Thus, liability will be imposed upon an owner under Labor Law § 200 only where the plaintiff's injuries were sustained as the result of a dangerous condition at the work site, rather than as the result of the manner in which the work was performed, and then only if the owner exercised supervision and control over the work performed at the site or had actual or constructive notice of the unsafe condition causing the accident” (Giambalvo v Chemical Bank, 260 AD2d 432,433 [2d Dept 1999]).

Section 240(1) imposes absolute liability on owners and contractors for injuries sustained by workers arising from the failure to provide proper protection against elevation-related hazards; i.e., a worker falling from an elevated work site or materials falling on a worker from above. The statute specifies the type of protective devices that must be provided [3] and applies to activities that involve a “significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured” (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]).

Section 241(6) imposes liability for violations of certain provisions of the Industrial Code. [4] Liability thereunder requires that “the rule or regulation alleged to have been breached be a ‘ “specific, positive command’ ”, rather than a ‘ “reiteration of common-law standards’ ” which would merely incorporate into the State Industrial Code a general duty of care” (
Rizzuto v L.A. Wenger Contr. Co. (91 NY2d 343
, 349 [1998] quoting
Ross v Curtis-Palmer Hydro-Elec. Co.
, 81 NY2d 494 [1993]).

Based on the deposition testimony of claimant, the State engineer in charge of the project and a State design engineer, defendant moves for summary judgment, arguing (1) that this is not a case to which § 240(1) applies because claimant was not working at an elevation nor did any object fall on him, (2) that claimant has not identified any applicable portion of the Industrial Code that was violated, and (3) that claimant “has failed to produce any evidence that [it] created or had prior notice of the condition which was the proximate cause” of the subject incident. [5] The court finds that the first two contentions have merit but there are issues of fact that prevent summary dismissal of the claim insofar as it is based on common law negligence and § 200.

It is patent from the motion papers that claimant was neither working at an elevated work site nor was he struck by a falling object. He was operating a truck at ground level when the ground beneath him suddenly gave way. As defendant contends, the heightened standard of care provided by §240(1) applies only to hazards “related to the effects of gravity where protective devices are called for either because of a difference between the elevation level of the required work and a lower level or a difference between the elevation level where the worker is positioned and the higher level of the materials or load being hoisted or secured” (Rocovich, supra, 78 NY2d 509, 514).

In support of his contention that this accident is within the protections of § 240(1), claimant relies on two decisions both of which are readily distinguishable.

Bradford v State of New York (17 AD3d 995 [4th Dept 2005]) arose from the collapse of a partially-completed pedestrian bridge, 20 feet above the ground, that killed one worker and injured three others, all of whom were working on the bridge when it collapsed. The court rejected the State’s contention that the collapse of the work site itself, or the fact that it was intended to be a permanent structure, militated against liability pursuant to § 240(1). Beard v State of New York (25 AD3d 989 [3d Dept 2006]) involved a backhoe driver who was injured when a portion the bridge he was engaged in demolishing suddenly collapsed and fell 15 to 20 feet to the ground. The court rejected arguments similar to those rejected in Bradford, holding that the worker’s job required him to work on the remains of the bridge, which the court termed the functional equivalent of a scaffold, suspended above ground level as he assisted in its demolition, and that the collapse of the elevated work site constituted prima facie proof of a violation of the statute. [6] Both of these cases arose when workers fell from work sites that were elevated above ground level, in contrast to claimant herein, who was sitting in his truck at ground level when the truck fell through the ground.

Although not cited by claimant, the facts of Valensisi v Greens at Half Hollow, LLC (33 AD3d 693 [2d Dept 2006]) are closer to the facts of this case. Plaintiff there was working in a building near an opening in the floor covered by two plywood boards which had been cut to provide access to an underground tank which was part of the project. He fell through the opening, landing in the tank 20 feet below. The Second Department held that plaintiff’s work “exposed him to an elevation-related risk within the scope of Labor Law § 240(1)” (id., 695). A similar conclusion was reached in Alexandre v City of New York (300 AD2d 263 [2d Dept 2002]), where a worker who fell 10 to 12 feet into a trench while working on a project involving construction of a storm drain was held to have been engaged in an activity covered by § 240(1).

The distinction between Valensisi and Alexandre and the facts of this case is manifest. Both of those cases involved workers who were engaged in construction projects involving underground construction, and were injured after falling from one portion of the work site, at ground level, to another portion of the work site below. Thus, protection of the sort contemplated by § 240(1) was warranted. Here, all of the work was at ground level when an unforeseen event occurred and claimant’s truck fell into a hole that suddenly opened up, apparently the result of an underground tank, unrelated to the job, being unable to hold the truck’s weight. While this scenario may well implicate ordinary negligence in terms of the site preparation work done on the project, this job did not involve any subterranean work, nor did it expose claimant to any risk that the safety devices referenced in § 240(1) would protect against. Thus, § 240(1) is inapplicable.

As to § 241(6), claimant has identified four provisions of the Industrial Code that his expert, John P. Coniglio, [7] asserts are applicable to this case. The first regulation, § 23-1.3 (“Application”), is merely a general statement that the entirety of Part 23 of the Code (110 printed pages) applies to workers engaged in construction, demolition or excavation operations, something that is not in dispute. It contains no standards whatsoever, certainly no specific, positive commands of the type necessary to sustain liability under the statute (
Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343
, 349 [1998] .

Paragraph (a) of Section 23-1.5 (“General Responsibility of Employers”) is just what its title suggests – a general statement that workers are to be provided with “reasonable and adequate protection” for their lives, safety and health, and “safe working conditions, personal protective equipment and safe places to work.” It is perhaps a quintessential example of the type of general requirements that are the opposite of the specific, positive commands encompassed by § 241(6).

The remaining regulations identified by claimant’s experts contain specific, positive commands, but neither is applicable to the facts of this case. Section 23-1.7(b)(1) (“Hazardous Openings”) provides that “[e]very 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.” Here, there was no hazardous opening until after claimant’s truck broke through the surface of the ground, nor was there any way to protect against any danger that may have been posed by the latent weakness of the ground at this spot by installing a cover or railing. The regulation is manifestly inapplicable. Similarly, § 23-1.23(a) prescribes standards for construction of earth ramps and runways. This refers to ramps and runways built to provide access to and from construction sites. The fact that claimant was working on construction of a highway exit “ramp” is simply a coincidental use of the same word. The exit ramp involved here was being built with reference to highway construction standards, not those applicable to temporary access ramps of the type covered by the regulation.

Based on the foregoing, the court finds no basis for any application of either § 240(1) or § 241(6) to this case. However, claimant’s expert has submitted a fairly extensive analysis of the DOT documents he reviewed in connection with the preparation for this project, detailing the basis for his conclusion that the DOT’s pre-construction planning “lacked the full depth of investigative protocol needed to properly outline the underground hazards of the site . . . [that] should have been discovered and known, under proper investigation, but went unknown as the result of the negligent omission of proper subsurface investigation.” [8] The factual basis for these conclusions is detailed in the affidavit, centering around a pump house and a slaughterhouse formerly located on the property that should have raised the question of underground pipes and tanks associated with waste disposal. Defendant submitted no probative evidence addressing the issues raised in Coniglio’s affidavit. Counsel’s assertion that the qualified immunity afforded defendant in cases alleging negligent design or construction of highways [9] applies to this case is simply wrong. The State’s duties as a property owner, including its duties under the Labor Law, are the same as those imposed on private landowners (Preston v State of New York, (59 NY2d 997 [1983]). Based on the record before the court, it is far from clear that defendant’s alleged failure to appreciate the potential hazard posed by the prior use of the property was the result of a conscious planning decision as to how to address that hazard, as opposed to a negligent failure to properly assess the situation. While it may well turn out that some theory of qualified immunity applies here based on informed decisions of State engineers, such a determination must await trial. At this point, claimant need only show the existence of a material issue of fact. Claimant has clearly met this burden by presenting sufficient factual allegations that could support the conclusion that defendant had actual or constructive notice of the latent unsafe condition of the work site.

Accordingly, defendant’s motion for summary judgment is granted insofar as the claim is based on Labor Law §§ 240(1) and 241(6), and denied to the extent that the claim is based on common law negligence and Labor Law § 200.

August 20, 2007
White Plains, New York

Judge of the Court of Claims

[1].The court read and considered the Notice of Motion, Affirmation and Exhibits, Claimant’s Affirmation in Opposition and Exhibits and Defendant’s Reply Affirmation and Exhibit.
[2].Exhibit E to Notice of Motion, p 49.
[3].“Scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes” and similar devices.
[4].12 NYCRR Part 23, “Protection in Construction, Demolition and Excavation Operations.”
[5].Affirmation in Support, ¶ 54.
[6].Compare Caruana v Lexington Village Condominiums at Bay Shore (23 AD3d 509 [2d Dept 2005]), where a worker was injured when a balcony, from which he was discarding debris to a dumpster on the ground, collapsed. The court there rejected the contention that balcony was being used as a scaffold, since it was a “permanent appurtenance to the building” (id., 510).
[7].Mr. Coniglio identifies himself as a Certified Safety Professional and N.Y.S. Workplace Safety and Loss Prevention Consultant, with a Ph.D. in Safety Engineering.
[8].Coniglio Affidavit, p 13.
[9].See Weiss v Fote (7 NY2d 584 [1960]).