New York State Court of Claims

New York State Court of Claims

KEELING v. NEW YORK STATE THRUWAY AUTHORITY, #2008-010-008, Claim No. 109681


Claimant prevailed under Labor Law 240(1) and (2) due to defendant’s failure to provide safety equipment to bridge worker who fell from bridge.

Case Information

1 1.By Stipulation filed October 10, 2007, Marizia Keeling withdrew all claims associated with this incident. The caption has been amended accordingly.
Claimant short name:
Footnote (claimant name) :
By Stipulation filed October 10, 2007, Marizia Keeling withdrew all claims associated with this incident. The caption has been amended accordingly.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
SACKS AND SACKS, LLPBy: Joseph Carfora, Esq., Of Counsel
Defendant’s attorney:
Attorney General for the State of New York
By: Fabiani, Cohen and Hall, LLP, Of CounselThomas J. Hall, Esq.
Third-party defendant’s attorney:

Signature date:
May 9, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages pursuant to Labor Law §240, for injuries he sustained on July 21, 2004, when he was employed as a painter on the Tappan Zee Bridge and fell from a scaffold. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Pursuant to Contract No. TANY 01-86BP, dated January 29, 2002, L and L Painting Company (Painting Co.) entered into an agreement with the New York State Thruway Authority (Thruway Authority) to clean and paint the steel underneath the roadway of the bridge. A containment area, surrounded by cloth tarpaulins approximately 70 feet long by 45 to 50 feet wide, was set up to contain exposure to lead and dust fumes. Within the containment, there were three levels of scaffolds erected above a suspended steel deck. The lowest scaffold was 12 to 15 feet above the deck, the middle scaffold was at a distance of 20 to 25 feet, and the highest scaffold was approximately 35 to 40 feet above the deck. Each scaffold was approximately two feet wide by 15 to 20 feet long. The workers within the containment were sandblasting to remove the old paint before a new coat of paint was applied. Once the workers had completed their tasks, the containment and the scaffolds were shifted to the next section of the bridge to be addressed. Typically, a containment area would be in place for three to five days before moving to the next area.

Claimant argues that the scaffold from which he fell was elevated more than 20 feet and was not equipped with safety rails as required by Labor Law §240(2). Defendant argues that the scaffold in issue was not at a height of “more than 20 feet” and therefore not covered by Labor Law §240(2). Claimant also contends that defendant violated Labor Law §240(1) in its failure to provide fall protection in the form of rope grabbers and vertical safety lines to tie-onto as claimant ascended the steel beam en route to the scaffold. Defendant argues that an extension ladder was available to reach the scaffold, that vertical safety lines were in place and rope grabbers were on-site but claimant, as a recalcitrant worker, chose not to use the available safety protections or other safe means of accessing the scaffolding.

James Sellick testified that he has been a bridge painter for 22 years and that on the date of the accident he had been employed by the Painting Co. for approximately a year and a half, during the last three months of which he acted as the foreman for the sandblasting and painting project on the bridge. Sellick was the only foreman for the 20 to 25 painters. He had approximately 15 years experience as a foreman.

Sellick explained that there was a work platform under the bridge which consisted of decking suspended from vertical steel cables approximately 600 feet long. The steel cables were positioned vertically every 25 feet. These steel cables were not vertical safety lines (T:33).[2] Exhibit L depicts the cable looped around its anchor point with a clip to hold the cable in place. Sellick explained that the cable was anchored at one point and then there were three-quarter inch manila ropes, called straps, which were placed at various locations to hold the cable in line. The rope straps were subsequently replaced with steel straps.

Sellick explained that, to reach the scaffolds from the decking, he and other workers climbed up the steel beams depicted in exhibit M. He noted that some beams had lace work similar to a ladder. There were, however, no means to tie-off while climbing the beams because there were no vertical safety lines and a worker could not tie-off to the beam (T:46). He stated that climbing the beams was standard procedure on most job sites and Sellick did not feel it was a dangerous activity. As soon as a worker had ascended the steel beam and stepped onto the scaffold, he was required to tie-off to the horizontal safety line. Sellick explained that there were horizontal safety lines at the level of each scaffold. Workers wore a harness with double lanyards attached and were instructed to “tie-off,” i.e., clip their lanyards onto the horizontal safety lines whenever they were on a scaffold (T:39, 40). The double lanyard enabled a worker to remain clipped to a safety line from the first scaffold while walking to the second. Then, once the worker reached the second scaffold, a second lanyard could be attached and the first lanyard could be disconnected. When Sellick was asked if he knew whether claimant had tied-off before his accident, Sellick replied, “we wouldn’t be here if he was tied off” (T:97).

Sellick noted that vertical rope safety lines could have been provided for the workers to tie-onto with a rope grabber (Ex. N), a metal device with teeth that grip the vertical safety line, while ascending the beams en route to the scaffolding. The rope grabber stops a worker from falling when tension is applied. Sellick testified that rope grabbers were not given to workers on this project because there were no vertical safety lines and therefore there would be no reason to issue the devices (T:44). Indeed, this item did not appear on the list of personal protective equipment issued to claimant (Ex. A).

It was Sellick’s understanding that the maximum height at which a bridge painter may work without being tied-off was six feet (T:62). Sellick attended the mandatory safety meetings where fall protection was discussed. Sellick conceded that during his one and one half years on this job site as a bridge painter and then as a foreman, he was aware that vertical safety lines were absent and that it posed a risk of falling. Yet, despite his duty as a foreman to oversee the work conditions of his crew, he did not report the absence of vertical safety lines as a safety risk. Sellick felt that the safety issues were the responsibility of the Health and Safety Officer, Marc DeLeon. Sellick noted that it was his responsibility as foreman to “run the job” (T:88) and he did “what the company instructed [him] to do” (T:89). Sellick also conceded on cross-examination that he did not inspect the scaffolds and the rigging before the workers used them; rather, he delegated that task to an experienced bridge painter whom Sellick trusted, Joel Brito.

On July 21, 2004, Sellick became aware of claimant’s accident within five minutes of his fall (T:48). Sellick ran to the containment and found claimant on the steel deck 20 feet below the scaffold from which claimant had fallen (T:47). There were no safety rails or netting on the scaffolds (T:47). Nor were there any vertical safety lines in place. Sellick observed a broken rope strap at the location where claimant had been working (T:49). The rope had been attached to the cable upon which the scaffold rested and was used in the original rigging procedure. The rope should have been replaced with a steel strap. Sellick had not noticed the rope prior to claimant’s accident (T:50). When asked why the broken rope did not cause the entire scaffold to fall, Sellick explained that the scaffolding was anchored at other points. However, when a rope breaks, “usually there’s quite a bit of tension and it almost acts as a spring action” (id.).

Sellick was not aware of any accident investigation. He was never interviewed by the Health and Safety Officer, Marc DeLeon. Nor was he questioned by anyone from the New York State Department of Transportation or any other independent safety persons. Sellick never refused to be interviewed about the accident.[3] After claimant’s accident, on July 23, 2004, there was a “special” safety meeting which Sellick, as the foreman, was required to attend (Ex. R). A memorandum prepared by Frank Fierro, the Resident Engineer, regarding the special meeting was received in evidence (id.). The memorandum indicates that the meeting was held as a result of claimant’s accident and to review, and possibly enhance, the safety plan at the site. Sellick informed those in attendance that claimant’s accident was due to a broken rope (T:90-91). It was concluded at the meeting that a safety review of the site would be conducted and any necessary safety enhancements would be implemented.

Sellick testified that, as a result of the meeting, he was instructed to hang nylon vertical safety lines (T:53). Once the lines were fastened, rope grabbers were delivered to the site and distributed to the workers (T:54).

Defendant tried to discredit Sellick as a friend of claimant’s. Sellick testified that he knew claimant for approximately 18 years and worked with him on six jobs prior to the accident. Sellick described claimant as an experienced worker and a work friend. Sellick did not socialize with claimant outside of work and, until the trial, Sellick had not seen claimant since the accident. At the time of trial, Sellick had been employed at a job site with David Griffin for approximately four months.

David Griffin testified that he has been a bridge painter for 31 years and has been employed on projects on the Brooklyn, Manhattan, Williamsburg, Verrazano, Goethals and Tappan Zee bridges. Griffin testified that he had previously worked on bridges with motorized scaffolding which operated vertically like an elevator. He explained that with a motorized scaffold, a worker steps onto the scaffold and then ascends to the appropriate height. The Tappan Zee Bridge scaffolding was not motorized; rather there were levels of horizontal scaffolding suspended on cables set at fixed heights, which workers accessed by climbing steel beams. Griffin testified that he was employed at the Tappan Zee Bridge from the first day of the project and that since that time the workers all climbed the steel beams to reach the scaffolding.

Griffin had received safety instructions, which directed him to be tied-off at all times when on the scaffold. He did not receive any safety training regarding climbing the steel beams “[b]ecause there was nothing to tie onto” (T:108). Griffin testified that the workers were not provided with any fall protection while climbing the steel beams of 15 to 20 feet “or even higher” (T:147). On other jobs, Griffin explained that there were vertical safety lines to tie-onto when climbing the beams. On this site, however, there were no vertical safety lines. He stated that vertical safety lines are usually made of vinyl rope and require the use of rope grabbers. The rope grabbers allow a worker to move upward and have a stopper to prevent the worker from descending. If a worker used the lanyard to tie-onto the vertical cable, he could only move within the radius of his lanyard. That is why a safety line is free at the bottom and a stationary vertical cable cannot be used as a safety line. He explained that, at the scene, the vertical steel cables were stationary and used to hold up the decking.

Griffin testified that exhibit L depicts the steel cable supporting the decking. The cables were not capable of being used as safety lines because safety cables are not stationary; they are free at the bottom to allow for the workers’ movements. He also noted that a rope grabber is used only on rope and cannot be used on a steel cable because it will not grab the steel. A rope grabber would slide down a steel cable without the ability to stop a worker from falling.

During the one and one half years prior to claimant’s accident, Griffin never saw any nylon vertical safety lines or anyone using a rope grabber. He had observed the State inspectors and private inspectors climbing the steel beams and accessing the scaffolding in the same manner as the workers. Griffin did not complain about the absence of vertical safety lines. He conceded that climbing the beams without any protection was dangerous, but a common practice that “you kind of get used to it over the years” (T:149). He never used a ladder to reach a scaffold. Griffin testified that there were periodic safety meetings which he attended and the safety policy was to tie-off when you were on the scaffold (T:138). There were no safety rails or nets used with the scaffolds.

Griffin testified that, at the time of the accident, he was on the scaffold directly above claimant. Griffin estimated that claimant’s scaffold was at a height of 20 to 25 feet, “maybe even 30,” but likely between 20 and 30 (T:114). Griffin’s scaffold was at a height of approximately 40 feet and slightly behind claimant’s so that Griffin’s view of claimant’s scaffold was completely unobstructed (T:116). Griffin testified that he had finished his task and was looking around the containment to assess his next move to complete the sandblasting. Griffin observed that claimant had just climbed onto his scaffold and was holding his lanyard in his right hand, ready to tie-onto the horizontal safety line. As claimant stood up, a rope popped and the scaffold bounced, like a springboard, causing claimant to fall off the scaffold and down to the steel deck.

The preprinted diagram, upon which Griffin had made specific notations at his deposition, was received in evidence (Ex. P). It showed the horizontal safety lines and the location of the broken rope strap which purportedly caused claimant to fall approximately 25 to 30 feet from the scaffold. On cross-examination, Griffin conceded that the steel cables used to support the scaffolds are flexible and have varying degrees of bounce to them. However, when the rope strap broke, it was not a normal bounce. It was “a huge dip,” “a catapult” (T:161). Griffin testified that the rope strap that broke, causing claimant’s scaffold to tilt, should have been replaced with a steel cable by Brito (T:151). Griffin did not notice the rope strap prior to claimant’s accident.

Griffin watched claimant fall over backwards with his back bowed. He hit the blast hoses first and “his body kind of like just flailed and he hit the beam, and then he hit the floor” of the steel decking (T:118). Griffin was in shock. He slid down the beam and ran outside the containment to radio for assistance. Griffin then returned to the containment and observed the scaffold from which claimant had fallen. It was tilted sideways, similar to a 45-degree angle (T:159).

Generally, the foreman, Sellick, was not present in the containment when the blasting was being done (T:142). Griffin told everyone at the accident scene, including Sellick, about the events Griffin had witnessed. Neither DeLeon nor anyone else interviewed Griffin about claimant’s accident. When asked if he observed what had happened with the broken rope strap, Griffin stated that he last saw Freddy, the shop steward, with it but Griffin had no further information. Griffin testified that the rope snapped in half and that half of it remained dangling for everyone to see until it was removed by Freddy (T:157). Griffin did not know when Freddy removed it.

After the accident, Griffin, along with others employed by the Painting Co., spent approximately half a day installing vertical safety lines before any other work was done at the site. Griffin testified that exhibit Q depicts the vertical safety lines as they were installed after claimant’s accident and the ladder which was also on-site after claimant’s accident (T:155). The ladder was used to reach the decking and not the scaffolding (T:162).

Griffin has known claimant for approximately 12 years. On cross-examination, Griffin conceded that he was angry that claimant had been injured and Griffin would like to see claimant compensated for his injuries.

Claimant testified that he has been a bridge painter for 20 years and has worked on most of the big bridges in New York City. Prior to this accident, claimant had never been injured on the job and he had never been a litigant. Claimant began working on the Tappan Zee Bridge in October 2003. A typical day began at 7:00 a.m., with a 10:00 a.m. lunch break, and ended at 2:00 or 3:00 p.m. The containment area in which claimant worked was moved approximately every two days. Claimant climbed the steel beams to access the scaffolding as he had done at previous job sites. There were hundreds of steel cables in the containment area, including vertical cables supporting the deck. These, however, were not safety lines which claimant could tie-onto while ascending the steel beam en route to the scaffolding. Claimant explained that workers were not allowed to tie-onto any kind of rigging because it is unsafe and was not the practice in the trade. A worker can only tie-onto safety lines. Claimant further testified that prior to the accident there were no vertical safety lines or rope grabbers on site.[4] Claimant never complained about the lack of safety equipment available for gaining access to the scaffolding. Claimant was instructed to hook his lanyards to the horizontal safety lines as soon as he was on the scaffold. The safety lines were located above his head when he was standing on the scaffold.

On July 21, 2004, claimant put on his safety gear, climbed the beam, and, once he reached the scaffold, he tied-onto the horizontal safety line. Claimant testified that his scaffold was 35 to 40 feet above the steel decking (T:181). He had been sandblasting for approximately two hours when he encountered a problem with his sand hose. He climbed down to the next tier of scaffolds, which was at a height of approximately 25 feet (T:182). He continued to have electrical problems with his hose, so he climbed down the beam and left the containment area to get a roll of electrical tape, which he placed in his coveralls. At approximately 9:30 a.m., he returned to the containment and climbed back up the beam. As he stepped onto the scaffold and attempted to tie-onto the safety line, he was thrown off the scaffold and fell down onto the decking. Claimant did not see the rope break. Claimant was not cited for failing to follow safety instructions.

In contrast to claimant’s witnesses, defendant’s witnesses maintained that vertical safety lines and rope grabbers were available at the job site prior to claimant’s accident and that claimant could have accessed the scaffolding from an extension ladder. Defendant contends, however, that claimant chose not to use the available safety protection or the ladder.

Richard Falletta, who has been employed by the Thruway Authority for over 15 years, testified that, in July 2004, he was the Thruway Authority’s liaison engineer for the Tappan Zee Bridge project. He was responsible for generally overseeing the consulting engineering firm assigned to the project, Weidlinger Associates, to ensure their compliance with the contract provisions. The engineering firm also had its own engineer-in-charge of the project, Frank Fierro. The Painting Co. was the prime contractor performing the work on the bridge. Falletta was on-site usually twice a month for meetings (T:240), but he was only in the containment area “once every couple of months, maybe; if that” (T:314-15). While Falletta stated that he was only on the bridge every few months, he further stated that he had been in the containment area prior to the accident and had observed vertical and horizontal safety lines (T:245). He did not recall, however, if he had used the vertical safety lines at this site (T:277), and he admittedly had only a “general understanding” of the use of rope grabbers (T:277-79). He did not know whether the vertical safety lines were made of steel or rope or some other material (T:272-73).

Contrary to the other witnesses’ testimony that rope grabbers could not be used on a steel cable, Falletta testified that rope grabbers could be used on steel (T:279-80). He did concede that the cables used to support the decking could not be used as vertical safety lines. He did not remember the number of safety lines he had observed or where they were placed (T:291). He could not recall if there were vertical safety lines near claimant’s scaffold. When shown photographs taken one month after the accident, depicting another containment area which was purportedly similar to the location where claimant had fallen (Exs. K-M), Falletta could not identify any safety lines (T:273-76). While Falletta testified that he would have known if there were a lack of safety lines, he was not convincing.

Falletta agreed that exhibit A, the history of safety equipment provided to the workers, did not include rope grabbers (T:306). Falletta conceded that workers needed rope grabbers to use vertical safety lines and that therefore rope grabbers should have been issued. He acknowledged that if the workers were not given rope grabbers, it constituted a failure to provide safety equipment (T:271-72). Falletta further testified that if rope grabbers had not been provided at the site, he would have been made aware of that failure if it had been an ongoing problem (T:295). He explained that inspectors would not have climbed steel beams without safety lines, therefore, an absence of safety lines would have been brought to Falletta’s attention (T:310-11).

When asked how the workers reached the scaffolding, he stated that they used ladders. When asked if they used ladders to reach heights of 40 feet, he replied that there were extension ladders and he recalled seeing a ladder on the date of the accident (T:313-14). When further questioned about the use of the extension ladder to reach the scaffolds, Falletta responded, “I guess they had to climb the steel *** I’ve never observed them climbing it” (T:316). When asked if the vertical safety lines he had observed were available to tie-onto when climbing the steel beams, he responded that, “they were used for ascending generally” and he shrugged his shoulders reiterating that he had never witnessed anyone climbing the steel beams (T:319).

Falletta reached the accident scene within one hour of claimant’s fall and looked up at the scaffolding. He did not observe anything out of the ordinary or any scaffolds at a 45-degree angle. Nor did he observe any broken ropes or support cables. Everything appeared to be intact and functioning. He could not recall, when he looked up at the cables, if he could distinguish between vertical safety lines and the steel cables supporting the decking (T:312-13). Falletta did not speak to any workers at the scene regarding the accident. Falletta testified that it was not his specific duty to ascertain how the accident occurred. He was simply making observations for the purposes of filling out a report (T:264). After claimant’s accident, a special safety meeting was held on July 23, 2004 to ensure that any safety deficiencies would be addressed. Falletta’s testimony regarding the safety meeting was vague.

Celtic Consulting Group was hired by the Painting Co. to perform an independent investigation. It was conducted by Bill Campbell. Falletta never learned the findings of that investigation. Falletta was not aware of any deficiencies found to be related to claimant’s accident. Falletta did not know if any safety enhancements had been implemented after the accident.

Frank Fierro testified that, in July 2004, he was employed by Weidlinger Associates as the resident engineer for the Tappan Zee Bridge project. Weidlinger’s role was to inspect the quality and amount of work completed by the contractor and to provide progress payments for the work performed. Fierro was in his office daily, but he only visited the job site once a week or every other week and he had never been in this particular containment prior to the accident (T:323, 360-63). He did, however, observe vertical rope safety lines in other containment areas.

Fierro arrived at the accident scene at 9:50 a.m. to 9:55 a.m. He did not see a broken rope or any scaffolds at a 45-degree angle, or any visible signs of a failure which could have caused the accident. He testified that he observed vertical safety lines near claimant’s body, but did not know the location from which claimant had fallen (T:348). Fierro stated that exhibit Q accurately depicts the vertical safety lines present on the job site (T:329) and the ladder shown in the diagram was an extension ladder used to access the scaffolding (T:330). Fierro testified that he had used the ladder to reach the scaffolds (T:331). There were several vertical safety lines, made of a synthetic rope, in the vicinity of the ladder (id.). Fierro testified that workers were supposed to carry a rope grabber in order to tie-off to the vertical safety lines while accessing the scaffolds (T:332). Fierro stated that he had used the vertical safety lines on the bridge (T:341). He conceded that climbing up or down the steel beam en route to the scaffold without tying-off was faster than using the rope grabber (T:332). Fierro maintained that his steel inspector would not have climbed the steel beam without tying-off to vertical safety lines. Therefore, Fierro did not believe that vertical safety lines were unavailable for one and a half years prior to the accident because he “definitely” would have been advised of that situation (T:340-41).

There were no safety rails or netting used with the scaffolding. Rather, fall protection was provided by using lanyards to tie-off to the safety lines. Fierro conceded that safety rails or netting would have been safer than vertical safety lines and rope grabbers.

Fierro testified that he concluded that claimant’s fall was due to his failure to tie-off because there were no signs of claimant having tied-off, such as a snapped lanyard or a rope grabber against the rope (T:352). No safety deficiencies were ever reported to Fierro. He did not know if there were any changes made in the containment area after claimant’s accident.

Fierro did not know if claimant had a rope grabber. He conceded that vertical safety lines could not be used without a rope grabber. While Fierro stated that the vertical safety lines were two to four feet from the scaffold (T:368), Fierro could not point out a vertical safety line within two to four feet of the scaffold shown in exhibit L (T:369-70). Fierro explained that exhibit L depicts a steel cable and not a vertical safety line because safety lines are not made of steel (T:378). Fierro testified that exhibit 3 shows a vertical safety line in the center of the photo (T:379). Fierro did not know where or when the photo had been taken (T:380).

On cross-examination, Fierro conceded that he did not know how far claimant had fallen from the second level scaffold, but he estimated it was 15 feet (T:376). If told it was higher than that, Fierro would have disagreed (id.). There was no document establishing the height of the scaffolds (T:377).

Marc DeLeon testified that he has been employed by the Painting Co. as a Health and Safety Officer for approximately 13 years and has worked on numerous large bridges. In 2004, approximately six months prior to claimant’s accident, DeLeon was assigned to the Tappan Zee Bridge project. As the Health and Safety Officer, DeLeon was responsible for quality control and checking that the workers had the proper equipment and were proceeding safely. If the workers did not have the proper equipment, DeLeon would report it to the foreman. To perform his duties, DeLeon was required to access scaffolds in containment areas. He tied-onto the vertical rope safety lines with a rope grabber when he climbed the steel beams.[5] In other areas, he used a ladder if it was next to the scaffold. When DeLeon was on a scaffold, he tied-onto the horizontal safety lines with a lanyard (T:394).

DeLeon testified that, if there had been an absence of vertical safety lines for the workers to tie-onto when climbing the beam, DeLeon would have known because he climbed those beams himself (T:409). He also testified that rope grabbers were “very readily available” at the site (T:411).[6] While DeLeon conceded that rope grabbers were not indicated on the checklist of safety equipment provided to workers (Ex. A; T:423-24), he explained that not all safety equipment was listed. Additionally, neither the blast hoods nor the protective clothing was listed. DeLeon testified that he did not issue equipment to the workers, that was the responsibility of the foreman, Sellick. In any event, DeLeon stated that if other witnesses testified that they were not provided with rope grabbers, then they were all lying (T:424). DeLeon conducted weekly safety meetings where workers were advised to tie-off at all times.

The day before claimant’s accident, DeLeon was in the containment area where claimant’s accident occurred. Prior to claimant’s accident, DeLeon observed workers using the vertical safety lines and rope grabbers. He stated that the setup was consistent with what he had experienced in other containment areas during the six months on the project; the scaffolds were supported by horizontal cables and he did not observe any vertical cables supporting the scaffolds (T:389). He further testified that exhibit Q shows the scaffolding, the vertical and horizontal safety lines, and an access ladder (T:390). Exhibit Q was consistent with DeLeon’s observations during his six months at the job site (T:391). According to DeLeon, only the highest level scaffold had horizontal safety lines and that scaffold was approximately 45 feet above the decking (T:436). The two lower scaffolds were dependent upon the vertical safety lines which workers tied-onto before climbing the beam and then remained tied-on when on the lower scaffolds. There were no safety rails or netting used with the scaffolds.

DeLeon identified the looped cable in exhibit L as a safety line and the line shown in exhibit K as a nylon rope safety line. DeLeon testified that exhibit 3 shows a vertical safety line in the center of the photograph which was the safety line adjacent to the steel beam (T:392).

DeLeon was on-site the day of claimant’s accident and reached the location within 15 minutes of claimant’s fall. DeLeon did not observe any broken rigging, torn ropes, or scaffolding at a 45-degree angle. He was never made aware of any safety deficiencies at the site and did not know of any safety changes made after claimant’s accident.

DeLeon identified exhibits L through M as photographs of the containment area taken by an insurance agent one month after claimant’s accident. DeLeon stated that the containment area remained the same for a month after claimant’s accident and was not moved (T:426). He explained that the containment areas for blasting move every three to five days and that containment areas for painting can remain in place for months (T:427). The painters work behind the blasters and the blasters move to another location after three to five days (T:427). Therefore, the photograph shows the same containment area as the day of claimant’s accident; however the blasters were no longer in that containment area. The job site was closed after claimant’s accident for a day or more; however no one took any photographs of the accident scene until a month later (T:458-59).

William Campbell testified that he is the President of Celtic Consulting Service and an industrial hygienist who performs safety inspections. His job also includes the responsibility of accident investigation. Prior to July 2004 Campbell had been in the containment areas on the bridge and had observed horizontal safety lines for the top scaffolds and vertical safety lines for the lower scaffolds. Campbell never witnessed anyone using ladders to reach the scaffolds. He testified that inspectors would refuse to climb beams without any fall protection. Campbell, however, did not observe the specific containment area where claimant had worked. He disagreed with claimant’s witnesses who testified that they had accessed the scaffolds by climbing up the steel beams without any available safety lines (T:504). Campbell maintained that safety lines were available and, if they were absent, it would not have gone unnoticed.

In July 2004 Campbell was engaged as a safety consultant for the Painting Co. and he visited the job site approximately twice a month. He also reviewed the work of the Health and Safety Officer who was on-site everyday. Campbell was notified about claimant’s accident in the morning; however Campbell was several hours away and did not reach the scene until sometime between 3:00 p.m. and 4:00 p.m. Campbell testified that he did not feel it was necessary to go up to the scaffold from which claimant had fallen because everything was visible to Campbell from his position (T:552). Campbell observed the scaffold “about 20 feet above” the area where claimant had landed (T:492). Campbell did not observe anything wrong with the rigging; nor did he see a scaffold positioned at a 45-degree angle. He also testified that he did not notice a broken rope and, if he had, it would have been mentioned in his report. According to Campbell, there were vertical lifelines throughout the containment area and each scaffold, including the one from which claimant had fallen, had two to three vertical safety lines in close proximity. He did not, however, recall a rope grabber on the safety line.

Despite being an investigator and specifically responsible for the investigation of claimant’s accident, Campbell did not take any photographs to preserve the accident scene and he conceded that he could have purchased a disposable camera for this purpose. Campbell spoke to Sellick, thinking that he was the only one who knew what had occurred. Campbell assumed that Sellick had been in the containment area at the time of the accident because Sellick told Campbell how the accident happened (T:510) and, based upon information obtained from Sellick, Campbell concluded in his accident report that claimant had lost his balance (T:513). The report stated:
“Mr. Keeling was approximately 20 feet high while preparing to start abrasive blasting. He was returning from his morning break and did not attach his personal fall protection lanyard to the vertical lifeline that was within 2 feet of his person. Mr. Keeling lost his balance and fell. As he fell he hit a scaffold and the lateral box beam before landing on the platform 20 feet below.”

(Ex. T). On cross-examination, however, it was brought to Campbell’s attention that Sellick had not been present when the accident occurred.

Campbell testified that he spoke with a few workers who had been in the area, but they did not offer any information about the accident (T:496). When asked on cross-examination which workers Campbell had attempted to interview, he did not know their names or recall who they were. He conceded that it would have been important to note this fact and their names in his accident report, but he had failed to include that information. Campbell also forgot to sign his accident report; he attributed this to an oversight (Ex. T). Campbell also attempted to speak with claimant several days later, but he refused to speak about the accident (T:498). Campbell further stated that, while his report is dated July 24, 2004, that was the date he began his report; it was actually completed in August, after Campbell attempted to speak to claimant. Campbell had been doing these types of reports for 30 years (T:511).

Campbell returned to the scene two days after the accident to attend a special safety meeting. There was nothing in the minutes of the safety meeting indicating that claimant’s failure to tie-off was the cause of the accident (T:516-17; Ex. R). Campbell did not take any photographs of the scene two days after the accident because “[t]he containments move by the way” (T:563). However, when asked it the containment in issue had moved, Campbell did not know. He conceded that work had stopped at the site after the accident and he did not know if work had continued the next day. Nonetheless, he did not take any photographs on the day of the accident and he maintained that two days later was “[t]oo late for a photograph” (T:564).

When asked on cross-examination if claimant could have fallen 20 to 25 feet, Campbell replied, “[i]t’s approximately 20 feet” (T:519). Campbell was aware that the Building Code Department required scaffolds suspended “more than 20 feet” required a safety rail (T:523-24). Campbell maintained that the work on the bridge could not be performed if the scaffolds had a safety rail. According to Campbell, that is why another fall protection was utilized in the form of vertical safety lines (T:525-27). The vertical safety lines were made of rope. Campbell conceded that if the foreman did not give the workers rope grabbers, it was a failure of the safety procedures because without the rope grabbers, the vertical safety lines are useless. However, he later qualified his answer by stating that rope grabbers are not issued to the individuals, no more than scaffolds are, because they are not personal equipment. Rope grabbers are available at the site for anyone’s use. According to Campbell, rope grabbers usually remain on the ropes, but not on every line. He stated that a worker does not usually carry a rope grabber around all day, although some workers do. While he observed rope grabbers on the safety lines, he stated that not all safety lines had rope grabbers.

When shown exhibit L, Campbell was not sure whether the looped cable was a vertical safety line made of rope or a support cable made of steel. He stated that sometimes safety lines are looped because they are too long and are dragging on the floor. A looped safety line would require the use of two rope grabbers.
Labor Law § 240(1) imposes absolute liability on owners, contractors, and their agents for any breach of the statutory duty to provide or erect safety devices necessary to give proper protection to workers exposed to elevation-related hazards and which breach proximately causes a worker’s injury (see Valensisi v Greens at Half Hallow, LLC, 33 AD3d 693). Labor Law §240(2) provides that scaffolding at a height of “more than 20 feet” “shall have a safety rail.”

In this case, the parties presented vastly different versions of the cause of claimant’s accident and the safety protections present and available at that time. Thus, the determination of whether defendant is liable for claimant’s injuries rests heavily upon the Court’s assessment of the credibility of the witnesses (see Scariati v St. John’s Queens Hosp., 172 AD2d 817 [trier of fact was free to reject conflicting testimony regarding causation]). In a non-jury trial, evaluating the credibility of witnesses is a matter committed to the Court’s discretion (see Anastasio v Bartone, 22 AD3d 617) and the Court’s findings are entitled to some deference (see Vizzini v State of New York, 278 AD2d 562, 564) because it “had the advantage of observing the witnesses firsthand and was in a better position to assess the evidence and weigh credibility” (Newland v State of New York, 205 AD2d 1015, 1016).

Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence established that claimant ascended a steel beam, without the aid of a rope grabber and a vertical safety line to tie-onto, as he gained access to the scaffolding. There was no extension ladder available to claimant at that time and location. Claimant then stepped onto the scaffold, which was not equipped with safety rails, and attempted to tie-onto the horizontal safety line. Claimant, however, was unable to attach his lanyard because the scaffold bounced and catapulted claimant more than 20 feet to the decking below the scaffold.

The Court finds that the proximate cause of claimant’s fall from the scaffold was defendant’s failure to provide claimant with proper safety protection as mandated by Labor Law §240(1) and (2) (see Madalinski v Structure-Tone, Inc., 47 AD3d 687 [worker was injured when he turned on a high-pressure water hose and the pressure of the water caused him to fall from a scaffold; defendant held 100 % liable because scaffold had no rails or other protection to prevent claimant from falling]; Moniuszko v Chatham Green, Inc., 24 AD3d 638, 638-39 [although plaintiff had temporarily removed his safety harness, he was not a recalcitrant worker and even if plaintiff was partially at fault, a worker’s contributory negligence is not a defense to a Labor Law § 240[1] claim; the sole proximate cause of the accident was a broken hook which caused the scaffold to fall]; Gaffney v BFP 300 Madison II, LLC, 18 AD3d 403 [worker awarded summary judgment under 240(2) where scaffold elevated more than 20 feet lacked safety rails]).

Claimant was forthright and credible in his testimony and was an experienced worker with no prior history of falls. When weighed against the credibility and probative force of claimant’s evidence, the evidence presented by defendant was not persuasive. Indeed, the Court did not find defendant’s evidence convincing that, prior to claimant’s accident, there were rope grabbers available, vertical safety lines in place, and a 40-foot extension ladder for use to gain access to the scaffolding. Nor did the Court find persuasive defendant’s attempts to show that claimant’s own conduct was the sole proximate cause of his accident (cf. Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40; Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290; Salazar v United Rentals, Inc., 41 AD3d 684) or that claimant was a recalcitrant worker who had refused to use available safety devices despite defendant’s specific instructions on their use (see Podbielski v KMO-361 Realty Assoc., 294 AD2d 552, 554 [“the decedent’s failure to attach his safety harness to a safety line, by the use of a rope grab, does not avail the defendants of the so-called ‘recalcitrant worker defense,’ since the evidence established that the defendants did not provide the decedent with such rope grabs”]). Thus, the evidence established that it was not claimant’s failure to use the available safety protection which caused his fall; rather the cause of claimant’s accident was defendant’s failure to provide appropriate safety protection.

In sum, the Court finds defendant to be 100 percent liable for claimant’s fall due to its failure to provide adequate and appropriate fall protection (Labor Law §240[1]; [2]). The matter will be set down for a trial on the issue of damages as soon as practicable.


May 9, 2008
White Plains, New York

Judge of the Court of Claims

[2]. References to the trial transcript are preceded by the letter “T.” The witnesses used the terms “tie-off,” “tie-on,” and tie-onto” interchangeably.
[3]. On cross-examination, Sellick conceded that a few weeks prior to trial, an investigator telephoned Sellick and Sellick refused to speak with the investigator because he thought it was related to Sellick’s pending Workers’ Compensation case unrelated to claimant’s accident.
[4].Exhibit A is the list of safety equipment which claimant had received at the job site; it did not include a rope grabber. Claimant clarified any ambiguities of his deposition testimony regarding rope grabbers and vertical safety lines (T:218-226).
[5]. DeLeon testified that a rope grabber cannot be used on a steel cable (T:448).
[6]. The rope grabbers on the vertical safety lines were for the inspectors (T:444).