New York State Court of Claims

New York State Court of Claims

EWINS v. THE STATE OF NEW YORK, #2008-016-003, Claim No. 110094, Motion No. M- 74107


Synopsis



Case Information

UID:
2008-016-003
Claimant(s):
PERRY L. EWINS
Claimant short name:
EWINS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110094
Motion number(s):
M- 74107
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Kazmierczuk & McGrathby: Katherine M. McGrath, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney General
by: Harris Beach PLLCby: Brian A. Bender, Esq.
Third-party defendant’s attorney:

Signature date:
January 22, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Perry Ewins has brought suit against the State of New York, alleging that it bears responsibility for his accident at a construction site when he fell from a column supporting an overhead sign on the Grand Central Parkway in Queens County. Mr. Ewins, an ironworker, was employed by United Rentals, Inc. on a project the company was performing under contract with the State of New York.[1]

Claimant here moves for summary judgment on liability pursuant to §240.1 of the Labor Law; the motion is opposed by defendant. The facts in this Decision and Order are drawn from the depositions of claimant and Steven McCormack of United Rentals, the affidavit of a co-worker (Jon Ciranko), and photographs of the accident site (cl affirm exhs D, G, F and E). The information from these four sources is undisputed and viewed as a whole, is consistent as to the material facts of the case. This project was described by Mr. McCormack, branch manager and before that an operation manager for United Rentals,[2] as follows: “we had 52 sign structures to install, and several bridge mounts and other regulatory signs . . . [t]hroughout the whole length of the Grand Central Parkway.”[3] Ewins was working on the sign structure located on the eastbound Grand Central Parkway about a mile west of Exit 13S, which led, via the Van Wyck Expressway, south toward JFK Airport (see the photographs that are exhibit E, id.).

When completed, a large green sign would be mounted across the highway on a rectilinear, cage-like piece, known as a truss assembly - - about 30 feet above the surface of the road. The sign and supporting truss are held up by a vertical column on either side of the eastbound lanes of traffic. Each column consists of two vertical poles, about four feet apart, that are “tied together” with diagonal metal struts, or cross-bracing. (Id.).

Claimant was on the late shift, arriving at the yard for the Grand Central project at about 10 or 11 p.m. on September 29, 2004. The weather was clear and dry. At the yard, claimant helped load a truck with the equipment that was needed, and then drove or was driven to where he would be working, arriving at around midnight.

The job site was well lit with three or four sets of generator lights. The vertical columns were already in place, but not the truss assembly. The green sign had already been affixed by his crew to the truss. The truss (and sign) was lifted off a truck with a crane and set on top of the columns. The truss assembly, which contains posts that go inside the vertical columns, is then bolted down. This task required four ironworkers, two at the column on the shoulder of the road, and two workers on the median.

Ewins climbed to the top of the vertical column on the shoulder side of the highway by stepping on the cross braces. His hands would grab the next diagonal brace above; he could not grab the vertical columns: “No, they are round tubes and you couldn’t do that” (id., exh D, p. 71).

When claimant reached the top of the column he planted his feet and stood on a horizontal brace that he testified was big enough for two workers. Mr. Ciranko, who was claimant’s partner that night, observed that the level where the two men were installing the truss had no decking or platforms - - “it was open steel” (id., exh F, ¶4).

After bolting the truss assembly, Ciranko and Ewins began to climb down. Claimant recalled that he was halfway down and was holding onto the top most brace when his right foot slipped sideways - - the next thing he remembers is waking up with an ambulance on the scene. Ciranko, who had gone first, made it safely to the ground and saw that “Perry Ewins lost his footing while climbing down one of the diagonal beams” (id. ¶8).

As Ciranko stated in his affidavit,
The structure itself was difficult to climb because the steel itself was rounded and because there were no horizontal pieces of steel. The steel members were painted with a slippery galvanized coating. The pieces of steel were either vertical or steeply slanted. (Id., ¶3).
Moreover, as is evident from the photographs, these slanted or diagonal pieces are widely spaced.

Ewins had been wearing a safety harness, with a single lanyard attached, which was used by Ewins (and Ciranko) when functioning in a stationary position: claimant testified that he had tied his lanyard around the column when he stood on the horizontal brace working on the truss assembly.

Once the truss was bolted down, Ewins explained that, “[y]ou unhook the lanyard and then you just kind of step down with one foot and start walking down the braces.” The single lanyard claimant had used on the overhead truss could not be used to descend:
You are supposed to have lanyards where harnesses with a double lanyard on them for these applications, because you can hook yourself off, climb down, hook yourself with the second lanyard, unhook the first, climb down farther and repeat the procedure till you get down . . . With a single lanyard, that’s not possible. [4]

Ewins testified that he and his fellow ironworkers had asked the general foreman and the “safety man” for double lanyards a few times before his accident, not at this specific site, but at other job locations on the Grand Central project, on which he had been working for eight or nine months.
There were no ladders at Ewins’ job site that night. According to Mr. McCormack, ladders were available to crews working on the Grand Central project at the yard, which is where “equipment for a project” gets stored (id., exh G, p. 45). The yard was off the Grand Central Parkway, but across from LaGuardia Airport, about a half a mile from where Ewins was working.[5]

Ciranko’s affidavit stated that on prior occasions on this project, boom lifts were provided - - a truck with a boom that elevates a worker in a bucket (exh F, ¶3). McCormack concurred that United Rentals owned boom lift trucks. He did not know specifically if they were used on the Grand Central project, but did say that the company used them on another project in the area. The company not only owned the trucks, it rented them out to other firms.
***
Descending from the top of a column some 30-feet high, following the completion of a task at that level, involved an elevation-related risk within the contemplation of Labor Law §240.1. Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 601 NYS2d 49 (1993). Given such risk, the Labor Law requires proper protection for the worker.

The record here is not in dispute as to the facts. The harness and single lanyard that Ewins was wearing protected claimant for stationary work only. No ladder, boom lift or other method was provided or made available for claimant’s descent from the sign structure that spanned the eastbound Grand Central Parkway at a point before Exit 13S. Zimmer v Chemung County Performing Arts, Inc., 65 NY2d 513, 493 NYS2d 102 (1985); Ramos v the Port Authority of New York and New Jersey, 306 AD2d 147, 761 NYS2d 57 (1st Dept 2003). Proper protection was not provided, and such failure was the proximate cause of Perry Ewins’ fall and any injury resulting therefrom.

Having reviewed the submissions of the parties,[6] claimant’s motion (no. M-74107) for partial summary judgment on liability under Labor Law §240.1 is granted.



January 22, 2008
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1]. The State Department of Transportation contract number was D258954 (cl affirm, exhibit G, p. 13).
[2]. According to McCormack, by the time of his deposition on February 16, 2007, the corporate name of United Rentals had become Highway Technologies.

[3]. Claimant’s Affirmation, exhibit G, pp. 11 and 15.

[4]. The lanyards were kept in a compartment of a truck at the site. Claimant answered, “I suppose” to a question as to whether it would be possible to attach two single lanyards to his safety harness.
[5]. Ewins testified that he did not know if there were ladders available in the yard, but when asked if this type of job involved the use of a ladder, replied, “We never had them” (cl affirm, exh D, p. 87). Ciranko, in his affidavit, indicated that “[o]n prior occasions ladders were brought by truck to the sign structures so that we could easily reach our work elevation, or boom lifts were provided” (id., exh F, ¶3).

[6]. Claimant submitted: a Notice of Motion & Affirmation with exhibits A through G; and a Reply Affirmation. Defendant submitted an Attorney Affidavit in Opposition.