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
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).
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
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
). 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
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
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.
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
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
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
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
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
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.
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
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
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: