New York State Court of Claims

New York State Court of Claims

RUSSELL v. THE STATE OF NEW YORK, #2007-044-543, Claim No. 109729, Motion Nos. M-72765, CM-72905


Partial summary judgment granted on liability issue in Labor Law §240 (1) case. Claimant, while working on an existing bridge, stepped into a hole which was exposed when he removed debris (a sheet of plywood) from the bridge deck, as instructed by his supervisor. Due to the lack of required safety devices, claimant fell onto a platform constructed several feet below the deck level of the bridge, and suffered serious injuries.

Case Information

Claimant short name:
Footnote (claimant name) :

THE STATE OF NEW YORK1 1. The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
LIPSITZ GREEN SCIME CAMBRIA LLPBY: Teresa A. Bailey, Esq., of counsel
Defendant’s attorney:
BY: WALSH & WILKINS Christopher E. Wilkins, Esq., of counsel
Third-party defendant’s attorney:

Signature date:
July 5, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an employee of L.C. Whitford Corporation (Whitford), commenced this action to recover for personal injuries allegedly received while working on the reconstruction of the Fitches Bridge, which was owned and maintained by defendant State of New York (defendant). Defendant answered and asserted various affirmative defenses, and discovery was thereafter conducted. Claimant now moves for partial summary judgment on the issue of liability under Labor Law § 240 (1). Defendant cross-moves for summary judgment dismissing claimant’s cause of action under Labor Law § 240 (1). The facts of this action are not in dispute. As part of the overall reconstruction project, Whitford was required to remove the existing bridge deck (deck) by saw-cutting the concrete on the deck and removing the concrete slabs from their metal, “stay-in-place” pans.[2] At times, the entire metal pan would either be removed with the concrete slab or it would pull away from the deck causing a hole. When either of those situations occurred, Whitford employees would cover the opening in the deck with plywood. Claimant’s assigned task on the day of his accident was to clear debris, including plywood, from the deck. Unfortunately for claimant, as he removed a piece of plywood, he stepped into the opening beneath it and fell through the deck onto the platform approximately five to seven feet below.

Claimant argues that the plywood did not constitute a safety device because it was unmarked, and that he removed it without observing the hole in the deck. Claimant asserts that because there were no statutorily required safety devices, he fell through the deck and suffered serious injuries. Conversely, defendant contends that Labor Law § 240 (1) does not apply because claimant was working at surface level rather than at an elevated level, and that the wooden platform underneath the decking and the tie lanyard harness system were available and constituted acceptable safety devices in this situation.[3]

Labor Law § 240 (1) provides that

[a]ll contractors and owners . . . in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

It is well settled that Labor Law § 240 (1) was enacted to protect workers from gravity-related hazards by imposing absolute liability upon owners and their contractors who failed to provide or erect safety devices necessary to give the workers proper protection (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]; Rocovich v Consolidated Edison Co., 78 NY2d 509 [1991]; Bonilla v State of New York, AD3d , 2007 NY Slip Op 04061 [2d Dept, May 8, 2007]). The gravity-related hazards encompassed by the statute are those that exist because of either a difference between the elevation level of the required work and a lower level, or the difference between the elevation level of the materials and a lower level of the worker (Rocovich v Consolidated Edison Co., supra). “The hazard posed by working at an elevation [as in the present case] is that, in the absence of adequate safety devices . . . a worker might be injured in a fall” (Narducci v Manhasset Bay Assoc., 96 NY2d 259, 268 [2001]). In order to recover under Labor Law §240 (1), a claimant must establish a violation of the statute and that such violation was the proximate cause of his or her injuries (see Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; Zimmer v Chemung County Performing Arts, 65 NY2d 513 [1985]).[4]

Contrary to defendant’s argument, claimant was not working at surface level. At the time of his accident, claimant was working on the deck of an existing bridge which was elevated 40 feet above the riverbed, a height sufficient to require that a wooden platform be built below the bridge deck.[5] Claimant was in the process of clearing debris, specifically including the plywood, from the deck when he removed a sheet of plywood and stepped into the hole beneath it, falling to the platform below.[6] Clearly, claimant was engaged in a protected activity at an elevated work site, without benefit of any of the statutory safety devices, the absence of which was a significant factor in causing claimant’s injuries (see Beard v State of New York, 25 AD3d 989 [2006]).[7] Claimant, having established a violation of Labor Law § 240 (1), and having further established that such violation was a proximate cause of his damages, has met his burden on his motion for summary judgment (id.). Moreover, defendant has not provided any evidence which could create a question of fact as to the existence of safety devices for the job being performed by claimant, nor has defendant set forth any defense, such as claimant was either a recalcitrant worker (see Kouros v State of New York, 288 AD2d 566 [2001]) or was himself the sole proximate cause of his injuries (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 [2003]), either in opposition to the motion or in support of its cross motion. Accordingly, claimant’s motion for partial summary judgment on the issue of liability under Labor Law § 240 (1) is granted and defendant’s cross motion for dismissal is denied.

July 5, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion for partial summary judgment and defendant’s cross motion for dismissal:

(1) Notice of Motion filed on January 2, 2007; Affidavit of Teresa A. Bailey, Esq., sworn to on December 29, 2006, with Exhibits A through P.

(2) Memorandum of Law in support of claimant’s motion for partial summary judgment dated December 29, 2006.

(3) Notice of Cross Motion filed on February 2, 2007; Affidavit of Christopher E. Wilkins, Esq., sworn to on January 31, 2007, in opposition to the motion and in support of the cross motion, with annexed Exhibits A through F.

(4) Memorandum of Law in support of defendant’s cross motion dated January 31, 2007.

(5) Claimant’s Reply Memorandum of Law dated February 6, 2007.

(6) Affidavit of Teresa A. Bailey, Esq., sworn to on March 8, 2007, with annexed Exhibit A, in opposition to the cross motion.

(7) Supplemental Memorandum of Law in response to claimant’s Memorandum of Law dated March 9, 2007.

Filed papers: Claim filed on August 16, 2004; Answer filed on December 23, 2005.

[2]. As part of the demolition process, Whitford constructed a wooden platform under the deck. According to defendant, the platform was necessary in part to provide protection to the employees in case of a fall. A tie harness lanyard system was also established for employees working within six feet of the edge of the bridge deck.
[3]. Defendant also argues that because the Industrial Code (12 NYCRR) § 23-1.7 (b) (through Labor Law § 241 [6]) applies to protect workers from hazardous openings, it would be superfluous to apply Labor Law 240 (1). This argument is without merit, as the courts have held that sections 240 (1) and 241 (6) of the Labor Law and Industrial Code § 23-1.7 (b) are not mutually exclusive (see Olsen v James Miller Mar. Serv., Inc., 16 AD3d 169 [2005]; O'Connor v Lincoln Metrocenter Partners, 266 AD2d 60 [1999]).
[4]. The parties do not dispute that a bridge is a structure within the meaning of Labor Law § 240 (1) (see e.g. Bradford v State of New York, 17 AD3d 995 [2005]; Briggs v State of New York, Ct Cl, Feb. 24, 2004, Midey, Jr., J., Claim No. 107537, Motion No. M-67740, [UID #2004-009-14]).
[5]. Defendant’s reliance on Kimball v Fort Ticonderoga Assn. (167 AD2d 581 [1990], lv dismissed 77 NY2d 989 [1991]) to support its position that Labor Law § 240 (1) is not applicable because claimant was working at ground level is misplaced. Initially, Kimball concerned the plaintiff’s fall from ground level into an excavated trench, and is thus not analogous to the present situation. Moreover, the Appellate Division, Third Department has cautioned parties against relying on its Labor Law § 240 (1) cases, specifically including Kimball, which were decided prior to the Court of Appeals’ decisions in Ross v Curtis-Palmer Hydro-Elec. Co. (supra) and Rocovich v Consolidated Edison Co. (supra) (see e.g. LaJeunesse v Feinman, 218 AD2d 827 [1995]; Tooher v Willets Point Contr. Corp., 213 AD2d 856 [1995]; DeLong v State St. Assoc., 211 AD2d 891 [1995]).
[6]. The fact that claimant did not fall the entire distance from the bridge deck to the ground is of no moment as regards the applicability of this section of the Labor Law (see O'Connor v Lincoln Metrocenter Partners, supra; Becerra v City of New York, 261 AD2d 188, 190 [1999]).
[7]. While a tie harness lanyard system was available on site, it was specifically designed for use only when the worker was working within six feet of the side of the bridge deck – another indication that claimant was working at an elevated level. Obviously, the platform was not an adequate safety device in the performance of claimant’s job, as it did nothing to protect him from falling.