New York State Court of Claims

New York State Court of Claims
PUTNAM v. THE STATE OF NEW YORK, # 2009-009-210, Claim No. 102853

Synopsis

Defendant was found 50% liable for the wrongful death of claimant's decedent, based upon its failure to timely implement a confined space entry program at Buttermilk Falls State Park.

Case information

UID: 2009-009-210
Claimant(s): JANIS H. PUTNAM, Individually and as Administratrix of the Estate of THOMAS PUTNAM
Claimant short name: PUTNAM
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 102853
Motion number(s):
Cross-motion number(s):
Judge: NICHOLAS V. MIDEY JR.
Claimant's attorney: BOTTAR & LEONE, PLLC
BY: Edward S. Leone, Esq.,
Of Counsel.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General
BY: Christopher Wiles, Esq., and
Bonnie G. Levy, Esq.,
Assistant Attorneys General
Of Counsel.
Third-party defendant's attorney:
Signature date: January 4, 2010
City: Syracuse
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

In this claim, Janis H. Putnam, individually and as the Administratrix of the Estate of Thomas Putnam, seeks damages against the State based upon allegations of negligence which caused the wrongful death of her husband, Thomas Putnam. In addition to the claim for wrongful death, Janis Putnam also seeks damages for the conscious pain and suffering and personal injuries suffered by her husband prior to his death, as well as the damages derivatively suffered as a result of her husband's wrongful death.

Claimant's decedent, Thomas Putnam, died on August 4, 1998. Janis H. Putnam was granted General and Limited Letters of Administration upon his estate by the Tompkins County Surrogate's Court on December 9, 1998. A motion seeking leave for permission to file a late claim was granted by this Court in a Decision and Order dated December 12, 2001.(1) The trial of this claim was bifurcated, and this decision addresses solely the issue of liability.

The basic facts leading to the death of Thomas Putnam are not disputed, and can be summarized as follows: in August 1998 Thomas Putnam was employed by the Southern Cayuga Lake Intermunicipal Water Commission (hereinafter referred to as "Bolton Point"). Prior to 1995, claimant's(2) duties at Bolton Point included, among other things, the reading of water meters. After 1995, claimant performed meter reading only when two people were required to do such a reading, or when a regular meter reader was on vacation.

On August 4, 1998, claimant went to Buttermilk Falls State Park (Buttermilk), in connection with his employment, to work on a remote water meter which apparently had been damaged. The employee who regularly read this meter was on vacation at the time. A short time after arriving at the park, claimant spoke with Dwight Austin, a Senior State Engineer at Buttermilk who was working on a project involving water lines at the park. They discussed the meter located in an underground vault, and claimant asked Mr. Austin if he could take a look at the vault, to which Mr. Austin agreed.(3)

Claimant moved his van to the area of the subject vault, and positioned it to protect him from other vehicles which might be entering the park. Mr. Austin observed claimant remove the manhole cover to the vault, and then saw him enter and descend into the vault by utilizing an attached metal ladder. Claimant did not have any safety equipment with him at the time. Claimant disappeared from Mr. Austin's sight for a few seconds, and then Mr. Austin heard him gasp and saw him reach for the ladder. Mr. Austin immediately ran to summon help at the park office, directed 911 to be called, and asked if they had oxygen available. He then ran towards lifeguards at a nearby swimming hole in hopes that they would have oxygen bottles.

There was no tripod or any other retrieval equipment at the site. Two people attempted to descend into the pit to rescue claimant, but were unable to do so because of inadequate oxygen levels. Ultimately, Ithaca Fire and Rescue arrived, and it took them approximately three minutes to extricate claimant from the vault. Claimant was unconscious at the time, was transported to a nearby hospital, and died later that day. There is no dispute that claimant succumbed as a result of low oxygen content within the vault.

John Coniglio, a Certified Safety Professional, was qualified as an expert and testified on behalf of the claimant. Mr. Coniglio provided extensive testimony regarding applicable standards of care, and specifically referred to provisions of the Code of Federal Regulations (CFR), set forth at Title 29 1910.146. This section establishes practices and procedures to protect against the hazards of entry into "permit-required confined spaces". Furthermore, these regulations define a "host employer"(4) as the location owner or responsible party who has control of the "confined space", and a "contractor" who is defined as the employee of another employer who undertakes tasks within a confined space located on the host employer's property. Based on these definitions and the facts of this claim, Mr. Coniglio considered the State of New York to be the "host employer" and Bolton Point to be the "contractor".

Mr. Coniglio also testified that pursuant to these regulations, the State of New York, as the "host employer", had a duty, prior to 1998, to evaluate its property for hazards relating to "confined spaces", and was further required to implement a "confined space entry program" and make it available for inspection by its employees.

Mr. Coniglio further testified that pursuant to a "confined space entry program", the State was required to determine which confined spaces were "permit-required confined spaces" and to inform contractors such as Bolton Point if a work place contained such "permit-required confined spaces". If present, entry into a confined space was authorized only through a "confined space entry program" developed in accordance with the requirements of 29 CFR 1910.146.

Based on his review of the facts pertinent in this claim, Mr. Coniglio was of the opinion that the State of New York, as the host employer, had a duty and obligation to develop and implement a "confined space entry program" at Buttermilk. Mr. Coniglio testified that the vault in which claimant descended was clearly a "permit-required confined space", and that the State had failed to implement a "confined space entry program" at Buttermilk prior to the date of this accident. Mr. Coniglio further testified that as a result of its failure to implement a "confined space entry program" at Buttermilk, the State breached its duty to provide a safe workplace.

Mr. Coniglio also testified that as a consequence of the State's failure to implement such a plan, the State had failed to evaluate and identify "permit-required confined spaces"; it failed to post warning signs on "permit-required confined spaces"; it failed to communicate the requirements of such a program to its employees at Buttermilk; it failed to provide its employees with a copy of any such written "confined space entry program"; it failed to communicate with contractors of potential hazards involving "confined spaces"; it failed to coordinate with Bolton Point a "permit-required confined space entry plan"; and finally it failed to implement proper procedures for rescue and emergency services at such confined spaces.

In sum, it was the opinion of Mr. Coniglio that the vault into which claimant descended was clearly a "confined space", and that the failure of the State to develop and implement a "confined space entry program" for this vault was a proximate cause of claimant's unfortunate death. Mark G. Smarr, a Safety and Health Inspector for the State Department of Labor, testified on behalf of the defendant. Mr. Smarr testified that he conducted an investigation of the accident, beginning on the day that it occurred. He interviewed various individuals, including Mr. Austin, several Bolton Point employees, State Park Police Officers and members of the Ithaca Fire Department. Mr. Smarr also testified that as part of his investigation, he reviewed the "confined space entry program" in place at Bolton Point, which had been in effect since 1993.

Mr. Smarr testified that the subject vault was in fact a "permit-required confined space", that it was identified as such in Bolton Point's plan, and that at the time of this accident, Bolton Point had authorized and utilized an "alternate procedure" to do its work at the subject vault, and that this procedure did not require a permit. He testified that in his opinion, the alternate procedure was appropriate for use at this vault.

Mr. Smarr testified that following his investigation, PESH (the New York State Department of Labor, Public Employee Safety and Health Bureau) issued violations against the State (specifically, the New York State Office of Parks, Recreation and Historic Preservation) based upon its failure to evaluate permit-required confined spaces within the park, by not having a written permit space entry program available for inspection by its employees and authorized representatives, and also for its failing to provide any training to those employees whose duties required working with or in confined spaces as to the hazards associated with such spaces. As evidenced by these violations, Mr. Smarr confirmed that the State had in fact failed to implement any plan for "permit-required confined spaces" under 29 CFR 1910.146.

Additionally, and based upon his review of the Bolton Point confined space entry program, Mr. Smarr found that claimant had been properly trained in confined space entry through the Bolton Point program. He concluded that "risk factors" in this accident were claimant's failure to sample the atmosphere before entering the vault, as well as claimant's entering the vault without authorization from his employer.

John E. Rueckheim, the Distribution Manager at Bolton Point at the time of this accident, also testified on behalf of defendant. Mr. Rueckheim testified that he had been employed at Bolton Point for approximately 30 years, and that as Manager of the Bolton Point distribution system, he trained his employees and provided them with necessary equipment for use when entering a confined space. Mr. Rueckheim testified that claimant, who had been employed by Bolton Point for approximately five years prior to his death, had been trained by him in confined space entry procedures.

In reference to the testimony provided by Mr. Smarr, Mr. Rueckheim testified that at the time of this accident, Bolton Point had a confined space entry program which had been in effect since 1993. He testified that this program established criteria for identifying confined spaces, described procedures for entering confined spaces, and authorized an alternate procedure to be followed in entering confined spaces in which the only hazard was oxygen deprivation.

Mr. Rueckheim also testified that each and every employee who attended his confined space training was also provided with a handout further describing confined spaces, the criteria to identify confined spaces, the description of a permit-required confined space, the prevention of unauthorized entry, the justification for using the alternate procedure, and the low oxygen problem associated with confined spaces (Exhibit C). Mr. Rueckheim testified that claimant had received this handout at a meeting which he attended regarding confined spaces in May 1998, approximately three months before this accident.

Mr. Rueckheim described the "alternate procedure" as essentially requiring one other Bolton Point employee to be present at times of entry in addition to the person actually descending into the confined space. This alternate procedure also required the use of an air quality monitor to test the atmosphere in the vault before entering. He testified that the alternate procedure could only be used if the only known hazard in the confined space was atmospheric (i.e., lack of oxygen), but could not be used if other potential hazards were present, such as electrical, entrapment, or engulfment hazards. Mr. Rueckheim also testified that he had visited the subject vault with claimant approximately three months before his death, but they did not enter the vault at that time because they did not have the necessary air quality monitoring equipment with them.

Furthermore, Mr. Rueckheim testified that claimant's work order at Buttermilk for August 4, 1998 did not refer to the vault where he died, and that the work order was not related to anything that claimant might have been doing in the subject vault on that day.

Under cross-examination, Mr. Rueckheim acknowledged that Bolton Point and the State did not coordinate any activities, nor did they communicate with each other regarding entry into confined spaces, including the subject vault. Furthermore, Mr. Rueckheim admitted that even though Bolton Point had evaluated the subject vault prior to this accident, the State also had the same responsibility to do so.

The only other witness to testify at the trial was Phyllis Guest, a Bolton Point Water System Engineer Technician. She testified that all Bolton Point Distribution Point operators, including claimant, were well aware that the subject vault had a history of low oxygen levels and that the alternate procedure was required for any entry. Ms. Guest also testified that she had previously entered the subject vault where this accident occurred, and that on at least one occasion claimant was with her and entered the vault himself.(5)

DISCUSSION

It is well settled that a landowner has a duty to maintain one's property in a reasonably safe condition (Basso v Miller, 40 NY2d 233), and that the State, as a landowner, is subject to this same duty (Preston v State of New York, 59 NY2d 997). The State, however, is not an insurer, and the duty is one of "reasonable care under the circumstances" (Basso v Miller, supra at 241).

As set forth in the testimony at trial, it is claimant's contention that the scope of the State's duty of care is defined by a federal regulation (29 CFR 1910.146) which has codified safety practices and procedures relating to entry into "permit-required confined spaces". Defendant, on the other hand, contends that the federal regulation relied upon by claimant applies to employers (in this case, Bolton Point) and that 29 CFR 1910.146 therefore did not impose any duty upon the State, as a landowner, regarding claimant's safety. It is defendant's position that as a landowner, the State is not liable for claimant's death since it did not supervise or control the work being performed on its property (Allen v Cloutier Constr. Corp., 44 NY2d 290; Richardson v Simone, 275 AD2d 576). Claimant's expert, Mr. Coniglio, testified that the State, by definition, was the "host employer" defined as the owner or responsible party who has control of the location where the "confined space" is located, and that 29 CFR 1910.146 applied to the State.

Significantly, Mr. Smarr, the PESH Investigator who investigated this accident, cited both the State and Bolton Point for violating specific provisions of this regulation, and testified at trial that 29 CFR 1910.146 applied to both Bolton Point and the State. In fact, in one of the violations set forth in the "Notice of Violation and Order to Comply" issued by PESH against the State, specific reference was made to employees "whose work was regulated by 29 CFR 1910.146" (Exhibit 18, p. 5, Citation 2, Item 1).

Based on the foregoing, therefore, the Court finds and concludes that 29 CFR 1910.146, setting forth the practices and procedures regulating entry into confined spaces, defined the duty of reasonable care which both the State and Bolton Point owed to claimant, and the State's liability must be evaluated under this standard.

Based upon the testimony of Mr. Coniglio, as well as other testimony at trial, there is no question that the vault which was entered by claimant constituted a "permit-required confined space" under the terms of 29 CFR 1910.146, and that the State was required to have a "confined space entry program" in place to regulate entry and to provide appropriate safeguards.

Furthermore, it is undisputed (and acknowledged by the defendant) that no such program had been developed by the State for Buttermilk, and in particular the vault in question. In other words, the State acknowledges that no action whatsoever had been taken, prior to this accident, to regulate entry into confined spaces at Buttermilk; there had been no study, evaluation, or testing of the vault to determine if it constituted a "permit-required confined space"; there had been no training of employees with regard to potential hazards or safety measures that should be followed to address any such hazards; and there was no rescue or safety equipment on site or procedures to be followed in the event of an emergency.

Additionally, pursuant to a Memorandum sent to park managers in October 1991, the Office of Parks, Recreation and Historic Preservation had been made aware that a "confined space entry program" was to be implemented for each State park, requiring an identification of potential confined spaces (Exhibit 14). As indicated on this Exhibit, confined spaces at Buttermilk potentially subject to the regulation were identified in response to this Directive, including the subject vault. However, as discussed above, the State acknowledges that during the ensuing seven years before this accident, no further steps whatsoever were taken to implement a confined space entry program at Buttermilk.

As a result, Mr. Austin, the engineer-in-charge who was at the site with claimant on the day of this accident, through no fault of his own, was not aware of any potential danger with respect to claimant's entry into the vault that day. He simply did not have the requisite training, experience, or knowledge to appreciate the danger involved and acquiesced when claimant requested permission to descend into the vault. This Court is of the opinion that if an entry program had been established, as required, with requisite training, claimant would not have been granted such permission.

Accordingly, based upon the foregoing, the Court finds that defendant breached its duty of reasonable care when it failed to timely implement a confined space entry program at Buttermilk as required by 29 CFR 1910.146, despite prior knowledge that such a program was required. The Court further finds that defendant's breach of that duty was a direct proximate cause of claimant's death.

The Court, however, must also examine the role that claimant's own conduct contributed to his demise. Based upon the testimony, it is undisputed that claimant had been properly trained by his employer (Bolton Point) in confined space entry, and that he regularly attended safety meetings conducted by his employer. It is further undisputed that Bolton Point did have in effect a written confined space entry program applicable to Buttermilk and the specific vault in question. Testimony also confirmed that Bolton Point was utilizing an "alternate procedure" of which claimant was aware, which still mandated the presence of two employees and use of an air quality monitor to test the atmosphere whenever entry was to be made into this particular vault.

Based on the evidence presented, it is readily apparent that claimant, although properly trained, did not follow the procedures established by his employer for entry into this confined space. Furthermore, evidence established that on this day, claimant had not been directed by his employer to enter this particular vault when he was directed to work at Buttermilk.

In this Court's opinion, the actions taken by claimant that day, although highly questionable, are not sufficient to supercede the failure of the State to implement a confined space entry program at the park prior to the accident. Nevertheless, claimant's disregard to established safety procedures for entry into the vault, of which he was well aware, played a highly significant part in contributing to his death. Quite simply, claimant should have known better than to attempt such an entry without appropriate safety and oxygen monitoring equipment, and without a coworker assisting him.

Accordingly, this Court finds that both the State and claimant must share equally the responsibility for this unfortunate accident which took the life of claimant.

The Clerk of the Court is hereby directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. This claim will be scheduled for trial on the issue of damages as soon as practicable.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

January 4, 2010

Syracuse, New York

NICHOLAS V. MIDEY JR.

Judge of the Court of Claims


1. Putnam v State of New York, Ct Cl, December 12, 2001, Midey, J., Claim No. 102853, Motion No. M-63814, UID #2001-009-053. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.

2. From this point forward, unless otherwise indicated herein, "claimant" shall refer to Thomas Putnam.

3. A transcript of the deposition testimony of Dwight Austin was received into evidence at trial (Exhibit 10).

4. Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.

5. Ms. Guest was unable to provide specific testimony regarding the specific date of this supposed entry, and no written documentation of such a visit was produced. Accordingly, this particular testimony has been given no weight by the Court.