New York State Court of Claims

New York State Court of Claims

CHESNUT v. THE STATE OF NEW YORK, #2008-041-515, Claim No. 111056


Claimant and defendant each found fifty-percent (50%) responsible for injuries sustained by claimant when defendant’s employee at Department of Transportation garage provided an incorrect size and type of tire for rim to which it was to be mounted, and claimant failed to checK tire type and size, resulting in the tire exploding upon inflation.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
New York State Attorney GeneralBy: Saul Aronson, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 3, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Brian Chesnut (claimant) was injured on April 4, 2005 while mounting tires on tire rims at a New York State Department of Transportation facility (DOT facility) in Waterford, New York. At the time, claimant was an employee of a private entity, Warren Tire Company (Warren Tire), which had contracted with the defendant to do the tire-changing work.

Claimant would regularly report, most often on a Monday, to the DOT facility to perform this work. Over the course of 10 months, claimant reported to the DOT facility approximately 45 times, and although most often reporting on a Monday, actually reported on different days of the calendar week over the 10 month period. Predominantly working at the DOT facility one day per week, claimant would work until the tire-changing duties established for him by the defendant for each visit were complete, in some instances working only a portion of a day, and in others, having to return a second day in a given week to finish all of the assigned tire-changing duties.

A threshold legal question which must be resolved in order to determine this claim is whether claimant, under all of the facts and circumstances related to his work at the DOT facility, is concluded to be a special employee of the defendant.

In Thompson v Grumman Aerospace Corp. (78 NY2d 553, 557 [1991]), the Court of Appeals made clear that:
“[A] general employee of one employer may also be in the special employ of another, notwithstanding the general employer’s responsibility for payment of wages and for maintaining workers’ compensation and other employee benefits . . . A special employee is described as one who is transferred for a limited time of whatever duration to the service of another . . . General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer.”
“The issue of whether a person may be categorized as a special employee is generally a factual issue . . . Principal factors in determining whether a special relationship exists include the right to control, the method of payment, the furnishing of equipment, the right to discharge and the relative nature of the work . . . Within this context, however, it has been held that the key to the determination is who controls and directs the manner, details and ultimate result of the employee’s work” (Matter of Shoemaker v Manpower, Inc., 223 AD2d 787, 788 [3d Dept 1996], lv dismissed 88 NY2d 874 [1996]; see Ribeiro v Dynamic Painting Corp., 23 AD3d 795, 796 [3d Dept 2005], lv denied 6 NY3d 707 [2006]).

If claimant is determined to be a special employee of defendant, recovery under this claim is barred in that claimant’s exclusive remedy is provided by §§ 11 and 29 (6) of the New York State Workers’ Compensation Law.

Several factors must be considered to assess whether claimant, during his work at the DOT facility, remained an employee of Warren Tire, or, if during the period of work at the DOT facility he was a special employee of defendant.

Those factors suggesting claimant became a special employee of defendant during the periods of time he performed tire-changing duties at the DOT facility are limited, and essentially reduce to three. First, the work was always performed at the defendant’s work site. Second, once on site, the claimant performed only those tasks/job orders set out for him by an employee of the defendant. Finally, claimant primarily used defendant’s tools and parts in completing his assigned duties. However, more is needed to conclude, under the facts and circumstances of this claim, that during these periods of time, claimant became a special employee of defendant, particularly to overcome the presumption that claimant remained a general employee of Warren Tire during the course of his work at the DOT facility:
“[The] presumption of general employment that may be overcome only by a clear showing that the general employer has surrendered control over the worker and such control, in turn, has been assumed by the special employer” (Szymanski v Aramark Facility Servs., 297 AD2d 829, 830 [3d Dept 2002], lv denied 99 NY2d 503 [2002]).
Defendant has not demonstrated, and certainly has not clearly shown, that Warren Tire surrendered control over claimant and that such control was assumed by defendant. The facts demonstrate that claimant’s general employment remained, at all times, with Warren Tire. At all relevant times, claimant remained on the Warren Tire payroll, was paid by Warren Tire and received attendant employment benefits from Warren Tire. His assignment to the DOT facility, although generally on a Monday, involved different days of the calendar week, and was subject to his availability, dependent upon, in certain instances, the need for Warren Tire to have him remain and perform work at his usual job location. At all times, claimant wore a Warren Tire uniform, was never given a New York State ID card and, while at the DOT facility, did not participate in the breaks or lunch periods of other defendant employees. There was neither testimony nor documentary proof that anyone considered claimant to be anything other than a Warren Tire employee — no contract or writing transferring him to the employ of the defendant or delineating him as an employee of the defendant, no supervision of his work by the defendant or reporting of claimant to a supervisor employed by defendant. When injured in an earlier incident, it was claimant’s Warren Tire supervisor, Drew Armitage, who tended to claimant and assisted him in obtaining medical treatment. Claimant, primarily using tools provided by defendant, nevertheless brought and utilized other tools provided by Warren Tire. Finally, without contravention, claimant and his immediate supervisor, Drew Armitage, both testified that at all times during his work at the DOT facility, Mr. Armitage remained claimant’s immediate supervisor. Defendant neither disputed this testimony nor produced any proof that defendant considered the claimant to be its employee during the period of time he worked at the DOT facility, or that, in any way, he was supervised by the defendant while there.

The claimant’s circumstances here are vastly different from those described in Thompson (78 NY2d at 555-556) in which a special employment relationship was found:
“The uncontroverted record supports Grumman’s assertion that from the time Thompson was assigned to work exclusively at its plant until his accident one year later, Grumman exerted comprehensive control over every facet of his work . . . He reported daily to a Grumman supervisor, Dan Schmidt, who assigned, supervised, instructed, oversaw, monitored and directed his work duties on a daily basis. Thompson acknowledged Schmidt as his ‘supervisor’.”
Further, the Thompson court noted (78 NY2d at 557):
“That is true here where, combined with other indicia of special employment, the uncontroverted record documents an employer’s comprehensive and exclusive daily control over and direction of the special employee’s work duties for almost a full year with the corresponding complete absence of any supervision or control of his work duties by the originating general employer.”
Claimant’s situation here is far removed from the total and comprehensive employment supervision Grumman exercised over Thompson.

Having found no special employment relationship existed, the Court must determine what, if any, negligence of defendant proximately caused claimant’s injuries and, if found, to what degree.

“To establish negligence, [claimant] must demonstrate the existence of a duty to exercise reasonable care owed by defendant, a breach of that duty and resulting injury to [claimant]” (Hidden Meadows Dev. Co. v Parmelee's Forest Prods., 289 AD2d 642, 643 [3d Dept 2001]).

The circumstances which led to claimant being injured on April 4, 2005 are simple, direct and not in dispute by the parties. While mounting tires to tire rims at the DOT facility that day, claimant was provided two tires of incorrect size and type by an employee of defendant, Adam Auerbach. Mr. Auerbach, having a background in automotive technology, was an inventory clerk at the DOT facility, possessed exclusive control over the tire inventory and was the defendant employee responsible for providing Mr. Chesnut, the tire technician, with the tires to be changed on those days the claimant reported to the DOT facility. Failing to notice that he had been provided with the wrong size and type of tires, claimant mounted and inflated one without incident, but during the course of inflating the second tire, it exploded, injuring claimant. All parties agree that an employee of the defendant designated to provide tires to the claimant provided claimant with the wrong tires and that claimant failed to notice the error prior to mounting them to their rims.

That the tires were of the wrong size and type was readily apparent, with visible tire-size markings easily read on the tire sidewalls. The sidewall markings of the old and new tires are shown in Exhibits 5 and 6, respectively, clearly indicating that they are of different size and type (in that one is marked “tubeless” and the other is not). Neither party disputed these facts.

Where the parties parted company was in the assignment of blame for failing to notice that the wrong size and type of tires were provided to claimant. Through the testimony of competing expert witnesses, neither of whom the Court found at all compelling or persuasive, each side’s expert sought to completely absolve his principal of any blame for the accident. Indeed, each expert’s slavish adherence to entirely assigning responsibility and blame to the other party, even in the face of outlandish scenarios posed by the Court in one instance, substantially lessened the credibility of both.

Further, the claimant testified, in certain instances, disingenuously and incredibly, principally related to his ability to recognize and understand the significance of markings on the sidewalls of truck tires. Despite years of working with tires, despite changing thousands of tires (without incident), despite working specifically with truck tires at the DOT facility for the better part of a year changing approximately one thousand tires (without incident), claimant would have the Court believe he did not understand the markings on the sidewall of a truck tire, which indicated a tire’s size. Claimant’s testimony on this point, to state it plainly, is not to be believed. Claimant also sought to absolve himself of any responsibility to match a correct size and type of tire (tubed or tubeless) to the appropriate rim upon which it is to be mounted, going so far as to say it was his obligation only to examine the rim, but not to examine the tire which he was mounting on that rim. Such testimony is neither persuasive nor credible.

The parties devoted, non-germanely in the Court’s estimation, a great deal of attention to a specific OSHA regulation, 29 CFR 1910.177, entitled “Servicing multi-piece and single piece rim wheels.” The Occupational Safety and Health Act “was designed to require the employer to provide a safe work place for all persons working on the premises” (Clarkson Const. Co. v Occupational Safety and Health Review Commission, 531 F2d 451, 457 [10th Cir 1976]). Generally speaking, OSHA regulations are promulgated by the United States Department of Labor, and are designed to require that employers provide their employees with safe working environments, through the establishment and maintenance of safe working areas, provide safe and appropriate equipment to employees to do their work and provide appropriate training to employees to safely do the work at hand.

In this matter, such obligations would fall to Warren Tire to provide these things for its employee, the claimant. The Court finds the defendant’s attempts to utilize the obligations imposed upon Warren Tire as a means of absolving itself, entirely, of any negligence of its employee, Auerbach, and as a further means to entirely shift the responsibility for the accident to the claimant, the party putatively to be protected under the OSHA regulation in question, unavailing.

That the OSHA regulation in question may have obligated Warren Tire to properly train and assure that its employees are capable of assessing and matching tires of a correct size and type to specific types of rims (single or multi part), does not forever and completely insulate the defendant from its employees’ acts of negligence. In providing claimant with tires of an incorrect size and type, defendant’s employee Auerbach acted negligently. It is no more complex than that. In failing to observe or determine that he was provided tires of an incorrect size and type, claimant’s actions directly contributed to his being injured. It is as simple as that.

It is clear to the Court that the size differential between the correct and incorrect tires (2½ inches) and the difference in type of tires (tubed versus tubeless) would have been readily apparent to both defendant’s employee Auerbach and the claimant, especially given their training, experience and familiarity with tires, had either simply observed the markings clearly visible on the sidewalls of the replacement tires provided by Auerbach to claimant. To say that one of the individuals is more culpable than the other, particularly given the obviousness of the sidewall markings, would be an exercise in arbitrariness. Accordingly, each party is found to be 50% liable for the injuries sustained by claimant.

Further proceedings to determine damages will be scheduled.

All motions not previously decided are hereby denied.

Let interlocutory judgment be entered.

November 3, 2008
Albany, New York

Judge of the Court of Claims