TSAOUSIS v. STATE OF NEW YORK, #2009-018-046, Claim No. 103564
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
|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.
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
DIANE L. FITZPATRICK
YOUNG & YOUNGBy: John W. Young, Esquire
WILSON, ELSER, MOSKOWITZ, EDELMAN and DICKER,
LLPBy: F. Douglas Novotny, Esquire
October 2, 2009
See also (multicaptioned
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
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
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
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
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.
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
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
DOT issued an engineering instruction to
consolidate guidance on the use of these systems, including requirements for
working drawings and addressing maintenance and traffic
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
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
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 §
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
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.
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
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
Labor Law § 240 (1) reads in part:
[a]ll contractors and owners and their agents...in the erection,
repairing, altering, painting, cleaning or pointing of a building or
shall furnish or erect, or cause to be furnished or erected for the
of such labor, scaffolding, hoists, stays, ladders, slings, hangers,
pulleys, braces, irons, ropes, and other devices which shall be so
placed and operated as to give proper protection to a person so
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
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) 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
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims
.Claimant brought a motion for partial summary
judgment which was denied (Tsaousis v State of New York,
Fitzpatrick, J., February 28, 2006, Claim No. 103564, Motion No. M-70370, [UID
43 AD3d 1377).
.All quotes are from the trial transcript or
the Judge’s notes unless noted otherwise.
.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.
.Exhibits 14, 15, and 16.
. Exhibit 14, note 10.