New York State Court of Claims

New York State Court of Claims

TSAOUSIS v. STATE OF NEW YORK, #2009-018-046, Claim No. 103564


Synopsis


Under Labor Law § 240 (1) “...if the [claimant] is solely to blame for the injury, it necessarily means that there has been no statutory violation.” (Blake, 1 NY3d at 290). Even if Claimant had established violations of the specific provisions of the Industrial Code, the same result would apply to this cause of action as it did to the Labor Law § 240 (1) claim. No violation of the statute or any regulation contributed to this accident. Claimant’s unilateral decision not to hook his lanyard to the safety cable on the Ultra Lift is the sole cause of his injuries

Case Information

UID:
2009-018-046
Claimant(s):
JOHN TSAOUSIS and FAY TSAOUSIS
1 1.All references to “Claimant” in this Decision refer only to John Tsaousis as Fay Tsaousis’s claim is only derivative in nature.
Claimant short name:
TSAOUSIS
Footnote (claimant name) :
All references to “Claimant” in this Decision refer only to John Tsaousis as Fay Tsaousis’s claim is only derivative in nature.
Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103564
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
YOUNG & YOUNGBy: John W. Young, Esquire
Defendant’s attorney:
WILSON, ELSER, MOSKOWITZ, EDELMAN and DICKER, LLPBy: F. Douglas Novotny, Esquire
Third-party defendant’s attorney:

Signature date:
October 2, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant seeks damages for injuries sustained on October 11, 2000, in the City of Syracuse while employed by Erie Painting & Maintenance, Inc., (hereinafter Erie), owned by Markos Bahas. Erie had contracted with the State of New York (Contract No. D258243) to clean and paint 16 bridges over Routes I-81 and I-690, in the City of Syracuse and Town of Dewitt. Claimant fell from a raised platform while performing his work and alleges the State was negligent under the common law and failed to comply with Labor Law §§ 200, 240, 241, Title 12 of the New York State Code of Rules and Regulations, and provisions of the Occupational Safety and Health Act of 1970 (OSHA). The matter was bifurcated and this Decision relates solely to liability.[2]


On October 11, 2000, Erie employees were working on bridge span number 14 over I-690 eastbound. The cleaning and painting of bridges, by all workers’ accounts, followed a general pattern of activity. Once the location for the cleaning and painting was determined, the workers would assist with the necessary traffic lane closures. On this day, the left and center lanes of I-690 eastbound were closed. After the lane closures were completed, the containment system in which the work would be performed had to be erected.

The containment system consisted of a white canvas tarp attached with screws to wood planks (2 feet by 4 feet) installed around the perimeter of the platform on which the workers would stand to do their work. In this case, the platform was a mobile unit on the back of a truck, 15 feet by 40 feet, called an “Ultra Lift.” The platform could be raised and lowered by a scissors lift. The equipment the workers needed to clean the bridge was placed on the platform while on the ground. Once the platform was raised to the level of the bridge girders, workers would access the platform using a ladder and attach the canvas tarp to the underside of the bridge using pressure clamps. This formed a complete enclosure for the work to be done, making the containment system. The purpose of the containment system was to prevent contaminants and debris from escaping into the environment. Each time the work moved to a different area or a different girder, the containment system had to be dismantled from the bridge and reassembled once the Ultra Lift was moved.

On October 11, 2000, Keith Para and Michael Callanan both worked with Claimant to erect the containment system each time it was erected, which was at least twice that day. Claimant called both of his fellow workers to testify.

At the time of trial, Keith Para was a Syracuse firefighter, but he had worked for at least eight years with several engineering firms as a bridge inspector. He was familiar with the OSHA regulations and general safety regulations related to painting and cleaning bridges. By his and Mr. Callanan’s account, he was a stickler for safety and often reminded the other workers to use their safety equipment. He also ran some of the weekly safety meetings for Erie on this job. Mr. Para, however, did not work as an inspector on this job, he was employed as a laborer. Mr. Callanan testified that it was his understanding that Mr. Para was watching employees for compliance with the safety rules, and any violations he saw he would report to the inspector on the job site, James Shuler.

Each worker was provided a Tyvek or canvas suit, a blast helmet with attached neck protection and a hose for respiration. Each worker was also issued a harness and a 5-foot lanyard for fall protection.

To clean the bridge, each worker also was given a blast hose with trigger. Attached to the hose by duct tape was a light, similar in shape to a flashlight with a wire cage over the top. It was attached approximately 18 inches from the nozzle. The light intensity was similar to a flood light. Although visibility was limited during the sandblasting process, the air cleared quickly. Both Mr. Callanan and Claimant testified they didn’t have any difficulty seeing their work, negating any claim of insufficient illumination.

The process of cleaning the bridge involved using the blast hose to sandblast the beam, with the gun approximately a foot or more from the beam. On that day, the crew was spot blasting, removing areas of rust on the beams. A dust collector was part of the containment system and removed the particles released. Once the area was sandblasted, the workers would “blow down”[3] the beams, that is, shoot a powerful stream of air to remove the loosened debris. The blast hoses were highly pressurized. The two workers engaged in this blasting process would both work in a bay - or open areas within the containment system and between beams. At some point, each worker would move to the outside of the bay and work closer to the edge of the platform.

On October 11, 2000, both Mr. Para and Mr. Callanan testified, as they mounted the platform to erect the containment system they all, including Claimant, wore their safety harnesses and lanyards. The Ultra Lift was equipped with a steel cable down the middle, approximately 7½ feet from each side, to which the workers attached their lanyards. Both witnesses testified they all remained “hooked up” each time the containment system was erected. After the containment system was completed, Mr. Para left the platform. Mr. Callanan and Claimant both testified that although they both wore their harness vests and lanyards to access the containment unit, once sealed inside, they removed both and proceeded to work, unencumbered by the safety gear. Mr. Callanan indicated the reason he “hooked up” was because the inspector on the job, Mr. Shuler was watching, and he was visible to the inspector until the containment system was erected. Although Mr. Shuler couldn’t discipline the workers individually, he could issue a “stop work” order or take the issue to Mr. Bahas who could discipline each worker by sending him home for the day or terminating his employment. Mr. Callanan and Claimant both testified they wanted the work and would lose pay if sent home.

Both Mr. Callanan and Mr. Para testified they had no difficulty erecting the containment system near the edge of the platform while “hooked up.” Mr. Callanan indicated that the reason he didn’t hook up while he was blasting and blowing was for ease of work and comfort. He stated unequivocally that he could do the blasting and blowing work while wearing the harness and connected lanyard - it was just easier to do the work without it. Mr. Callanan had been cleaning and painting bridges for approximately 19 years at the time of trial, or roughly 11 years at the time of this accident.

Claimant had 28 years of experience cleaning and painting bridges. He was hired by Mr. Bahas for this job around July 2000. Mr. Bahas testified that Claimant had worked for Erie earlier in the year but had left to go and work for someone else. Mr. Bahas knew Claimant for approximately 25 years before he hired him because Claimant had worked for Mr. Bahas’s former brother-in-law. Mr. Bahas could speak with Claimant in his native language of Greek.[4]

It was after the Ultra Lift had been repositioned at least once that day when the accident occurred. Claimant testified that although he wore the harness vest and lanyard up to the platform, neither he nor Mr. Para or Mr. Callanan hooked off once they were up there. He did testify that they all kept their vests and lanyards on while the containment system was being erected. Thereafter, when it was only him and Mr. Callanan, the harnesses and lanyards were removed. Once enclosed in the containment system, no one could see them and no one went into the area because of the debris. The workers didn’t leave the platform until they completed the work on that section of the girder.

Around 3:25 p.m., when Claimant was doing the outside of the girder, he fell off the south end of the Ultra Lift. He fell near Mr. Para, who noticed that he was not wearing his harness or lanyard.

Claimant’s testimony was inconsistent and contradictory. Claimant testified that Mr. Bahas told him not to tie off, then he testified that he told him to wear the harness onto the platform but not tie off. Claimant also testified that he asked Mr. Bahas where to tie off on the first day, and was told that he could hook the belt onto the platform in the middle. Claimant denied seeing the cable on the Ultra Lift platform, although at one point, he testified he wondered what the cable was for and wondered why there wasn’t any place to which he could attach his lanyard. Later, Claimant indicated he couldn’t ask where the safety line was because there wasn’t any safety line. He also testified he couldn’t ask Mr. Bahas because he could lose his job. Thereafter, he testified Mr. Bahas knew he wasn’t hooked up because there was no safety line.

Claimant testified that he wore the harness and lanyard up to the platform everyday - he had worked three or four days before the accident - because he saw other workers wearing theirs. He later testified he wore it for safety - but continued to deny there was any safety line on the platform.

In addition, Claimant testified he was very familiar with all the safety devices. He also said he had worked other jobs where the safety line was on the floor of the platform. Claimant indicated at first that neither Mr. Para nor Mr. Callanan hooked off on the platform, but later indicated he didn’t know if Mr. Para tied off.

After asserting repeatedly that he couldn’t hook his lanyard up to a safety line because there was no safety line, he moved to his inability to perform his work if he had tied off. At trial, Claimant demonstrated the distance he could travel with the safety harness on- which was at least four feet. By all accounts, the cable used for the demonstration was more taut than the one on the Ultra Lift.[5] Based upon Mr. Callanan’s testimony and this demonstration, the Court finds hooking the lanyard to the cable would not have prevented Claimant from doing his work.

When Erie was awarded the contract they submitted drawings approved by a professional engineer to the New York State Department of Transportation (hereinafter DOT) of the Class A containment system they planned to use on the job.[6] DOT issued an engineering instruction to consolidate guidance on the use of these systems, including requirements for working drawings and addressing maintenance and traffic protection.[7] The purpose of a Class A containment system is to contain dust and abrasives. As part of the containment system drawings submitted by Erie, as required by DOT guidelines, there was a provision that an Ultra Lift platform could be used in lieu of suspended scaffolding.[8]

Claimant argues that because the Ultra Lift was not part of the containment system drawings, its use failed to comply with DOT requirements. The Court finds this argument without merit. The Class “A” containment system was presented to the DOT through drawings prepared and stamped by a licensed professional engineer, Gordon M. Soderholm, as required by the Defendant’s guidelines.[9] The Ultra Lift was to be used if the suspended scaffolding couldn’t maintain a minimum vertical clearance of 14 feet 4 inches. Claimant argues that this substitution required an amended plan prepared and stamped by a licensed professional engineer and approved by the State before the Ultra Lift could be used. The Claimant’s witness, Frank Stanwyck, a civil engineer working for DOT as the Regional Construction Safety Coordinator for Region 3, testified that the containment system addresses environmental issues, not safety issues, and the plans for it are reviewed by the State. He also said that the State doesn’t approve anything; the contractor can choose his methods of work and the State acknowledges receipt of the Project Safety and Health Plan in satisfaction of § 107.05 of the standard specifications. The use of the Ultra Lift would be allowed pursuant to the containment plans presented with the Professional Engineer Stamp.
Safety issues are addressed by the contractor in its Safety and Health Plan1[0] which, in this case, had 100 percent fall protection. The approval or acceptance of the Ultra Lift, as part of the containment system as set forth in the drawings, was not sent to Mr. Stanwyck as the Regional Construction Safety Coordinator and was not a safety factor.

Mr. Warren L. Underwood, a retired DOT employee, who was employed by DOT as the Engineer-in-Charge on Construction Contracts at the time of Claimant’s accident and assigned to this contract, also testified that the Class A containment system was to contain dust and debris from spreading out into the environment, not to protect the workers. The plans for the Class “A” containment system for this project were prepared and signed by a licensed professional engineer. Included in these plans was the provision or note (Note 10) authorizing the use of the Ultra Lift in lieu of a suspended platform. He explained that the State accepted and authorized payment for the work done by Erie which indicated the work was performed in accordance with the specifications. Additionally, Mr. Shuler, the inspector on this job, never reported any concerns about the Ultra Lift nor did he ever report any failure of Erie’s employees to tie off. It was Mr. Shuler’s job to monitor the safety of the work site.

During his testimony, Mr. Underwood, at times, said he had approved the use of the Ultra Lift, and at other times he said he had not. It appears that he considered the acceptance of its use the same as its approval. There was no formal approval, and the Court finds there was no need for the State to approve the use of the Ultra Lift itself, only to accept the signed drawings of the Class A containment system.

The only evidence that supports Claimant’s contention on this issue came from Claimant’s expert, John Hagopian, a licensed professional engineer in several states and president of Hagopian Engineering Consultants, who has been involved in 175-180 containment projects. He testified that based on his experience with DOT and containment system plans, amended drawings were required to be presented. He failed to provide any statute or regulation requiring such submission. Claimant failed to show that this alleged failure was causally related, in any way, to Claimant’s fall.

There was a significant amount of testimony and demonstrations regarding the location of the Ultra Lift in relation to the bridge girders and where Claimant fell addressing the issue of Claimant’s alleged inability to perform his job while wearing his harness and lanyard. Claimant also demonstrated at trial his range of mobility while hooked up with the lanyard and harness. Mr. Hagopian testified that, in his opinion, Claimant could not. This is in direct contrast to the testimony of the workers who were on the job with Claimant. All witnesses, including Claimant, agreed that if Claimant had hooked his lanyard to the cable on the Ultra Lift, he could not have fallen.
DISCUSSION
It is Claimant’s contention that the State violated Labor Law §§ 200, 240 (1), and 241 (6) and the provisions of the New York State Industrial Code §§ 23-5.1 (j) and (i), 23-5.2, 23-1.15, 23-1.16 (b) and (d), and OSHA Regulations 29 CFR 1926.104 (b), 29 CFR 1926.502 (k). Claimant argues that the Ultra Lift was not approved for use on this contract as it was not approved by a licensed professional engineer and that the sentence in Note 10 on Exhibit 14 was insufficient to authorize the use of the Ultra Lift on this project. Claimant goes on to argue that inadequate fall protection was provided. It is Claimant’s contention that OSHA Regulations 29 CFR 1926.501 (b) (1) and (2) or 29 CFR 1926.502 (k) require guide rails on all leading edges of a raised platform. No guide rails were provided although they could have been attached to the Ultra Lift. It is also Claimant’s argument that the steel cable running down the center of the Ultra Lift violated New York State Industrial Code § 23-1.16 (b) and (d) regarding life lines and tail lines, and OSHA Regulation 29 CFR 1926.104 (b) regarding life lines, as this cable was not an appropriate safety line. Claimant maintains that since no appropriate safety devices were provided, the State is liable for the injuries that are the result of his fall.

This case was replete with key issues of credibility. Credibility is the province and the obligation of this Court to assess as it determines what factually occurred on October 11, 2000. In doing so, the Court has relied heavily upon the witnesses’ testimony, their demeanor and appearance while testifying and the Court’s assessment of each witness’s veracity.

In this case, Claimant had varying versions of the critical events. This Court has kept in mind in evaluating Claimant’s testimony that English is not his first language to make sure its finding was not based on his lack of understanding or fluency. The Court is also aware of the potential motivation of Mr. Callanan to testify favorably for Mr. Bahas for purposes of continued employment. Even with these factors in mind, the Court finds the testimony of Michael Callanan more compelling and logically consistent. The Court also found Keith Para, who was no longer employed in this field, to be a very credible witness.

After listening to all of the witnesses, the Court finds that Claimant was provided with a harness and lanyard to hook up or tie off to the cable running down the center of the Ultra Lift. Claimant was aware of the cable and was aware that he needed to hook up for protection from falling. He was directed to hook up before October 11, 2000. While on the Ultra Lift erecting

the containment system, Claimant, Mr. Para and Mr. Callanan were all hooked up. Hooking up did not prevent Claimant from doing his job - although working without such attachments was undoubtedly easier and more fluent. On October 11, 2000, once sealed within the containment system, free from the inspector’s oversight, Claimant removed his lanyard and harness and proceeded to work unprotected. Undisputedly, if Claimant had hooked up, his fall would have been prevented - as the lanyard attached to the cable on the Ultra Lift provided 100 percent fall protection.
LABOR LAW § 200 and COMMON-LAW NEGLIGENCE
Labor Law § 200 is a codification of the common-law duty of an owner to provide construction site workers with a reasonably safe place to work. “An implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition (Reynolds v Brady & Co., 38 AD2d 746).” (Russin v Picciano & Son, 54 NY2d 311, 317). Thus, an owner will only be liable for injuries sustained by a contractor’s or subcontractor’s employees when the owner has either actual or constructive notice of the dangerous condition and has exercised supervisory control over the operation (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877). The evidence in this matter shows that although the State hired an inspector, Mr. Shuler, who could issue a stop work order if he saw a safety violation, he had no control over the methods used by Erie to clean the bridge. This general supervisory authority is insufficient to support a finding of liability under Labor Law § 200, (Comes, 82 NY2d at 877; Tambasco v Norton Co., 207 AD2d 618, lv to appeal dismissed 85 NY2d 857).
LABOR LAW § 240 (1)
Labor Law § 240 (1) reads in part:

[a]ll contractors and owners and their agents...in the erection, demolition,

repairing, altering, painting, cleaning or pointing of a building or structure

shall furnish or erect, or cause to be furnished or erected for the performance

of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks,

pulleys, braces, irons, ropes, and other devices which shall be so constructed,

placed and operated as to give proper protection to a person so employed.


This statute has been deemed one of strict or absolute liability. However, as Judge Rosenblatt explained in Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, this does not mean “that a fall from a scaffold or ladder, in and of itself, results in an award of damages to the injured party.” (At 288). It means that “the duty it imposes is nondelegable, and thus contractors and owners are liable under the statute whether or not they supervise or control the work; and where an accident is caused by a violation of the statute, the plaintiff’s own negligence does not furnish a defense.” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39). To be successful on this cause of action, a violation of the statute alone is not enough; Claimant must also establish that the violation was a contributing cause of his fall (Duda v Rouse Constr. Corp. 32 NY2d 405, 410; see also Panek v County of Albany, 99 NY2d 452, 457).

Yet, where there is no evidence of a violation and instead the evidence shows that it is Claimant’s own negligence which was the sole proximate cause of the accident, the Defendant cannot be found liable. As the Blake Court stated:

Under Labor Law § 240 (1) it is conceptually impossible

for a statutory violation (which serves as a proximate cause

for a [claimant’s] injury) to occupy the same ground as a

[claimant’s] sole proximate cause for the injury. Thus, if

a statutory violation is a proximate cause of an injury, the

[claimant] cannot be solely to blame for it. Conversely,

if the [claimant] is solely to blame for the injury, it

necessarily means that there has been no statutory violation

(Blake, 1 NY3d at 290).


Here, the Court finds Claimant was provided with 100 percent fall protection but chose not to use it. Claimant’s actions were in fact the sole proximate cause of his injuries.
LABOR LAW § 241 (6)
Labor Law § 241 (6) subjects a construction site owner, regardless of control or supervision, to liability for the failure to provide reasonable and adequate protection and safety to the workers. To establish liability, Claimant must show a violation of a specific safety standard promulgated by the Commissioner of Labor. Claimant points to violations of §§ 23-5.1 (j) (1), 23-5.2, 23-1.15, and 23-1.16 (b) and (d) of the New York State Industrial Code as well as several OSHA provisions.

A violation of an OSHA provision cannot be the basis for liability under Labor Law § 241 (6), (Holly v County of Chautauqua, 63 AD3d 1558). As for the other provisions, even if Claimant had established violations of the specific provisions of the Industrial Code, the same result would apply to this cause of action as it did to the Labor Law § 240 (1) claim. No violation of the statute or any regulation contributed to this accident. Claimant’s unilateral decision not to hook his lanyard to the safety cable on the Ultra Lift is the sole cause of his injuries.

Any motions not heretofore decided upon are denied.

The claim is DISMISSED.

LET JUDGMENT BE ENTERED ACCORDINGLY.


October 2, 2009
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[2].Claimant brought a motion for partial summary judgment which was denied (Tsaousis v State of New York, Ct Cl, Fitzpatrick, J., February 28, 2006, Claim No. 103564, Motion No. M-70370, [UID #2006-018-513], affd 43 AD3d 1377).
[3].All quotes are from the trial transcript or the Judge’s notes unless noted otherwise.
[4].Claimant’s native language is Greek and he testified with the assistance of an interpreter. The Court noted during his testimony that at several points during the questioning, he did not wait for the Greek interpretation but instead answered the question directly in English.
[5].Exhibit 59.
[6].Exhibits 14, 15, and 16.
[7]. Exhibit 4.
[8]. Exhibit 14, note 10.
[9].Exhibit 13.
1[0].Exhibit 10.