New York State Court of Claims

New York State Court of Claims
ORTIZ v. THE STATE OF NEW YORK, # 2010-030-031, Claim No. 110267

Synopsis

Labor Law 200 and 241(6) [alleged violation of Industrial Code 23-1.8(a)] claim dismissed after liability trial. Claimant's own negligence in removing safety goggles, and striking two hammers together, sole proximate cause of accident and injury.

Case information

UID: 2010-030-031
Claimant(s): JOHN ORTIZ AND MARIANN ORTIZ
Claimant short name: ORTIZ
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 110267
Motion number(s):
Cross-motion number(s):
Judge: THOMAS H. SCUCCIMARRA
Claimant's attorney: VOZZA & HUGUENOT
BY: F. FRANK VOZZA, ESQ
Defendant's attorney: HON. ANDREW M. CUOMO, ATTORNEY GENERAL OF THE STATE OF NEW YORK
BY: GALLO, VITUCCI & KLAR
BY: DANIEL P. MEVORACH and JEFFREY L. RICHMAN, ESQS.
Third-party defendant's attorney:
Signature date: September 17, 2010
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

John Ortiz alleges that he was injured while working on a construction site because defendant failed to provide eye protection as required by Industrial Code Section 23-1.8(a), and in violation of Labor Law 241(6), imposing strict liability if the owner or contractor has violated a rule or regulation of the Commissioner of Labor that sets forth a specific standard of conduct. This decision relates only to the issue of liability, after a bifurcated trial.

On October 4, 2004 Mr. Ortiz was working on a construction project involving the rehabilitation of the shoulder area of a portion of I-95 southbound, referred to as the Bruckner project, pursuant to a contract between the general contractor, Columbus Construction [Columbus], and the New York State Department of Transportation [DOT]. At the time, claimant(1) was a labor shop steward with Local 1010, working for Columbus. Columbus had trailer/offices, equipment and tool boxes on-site. The work and safety equipment provided generally included hard hats, gloves and goggles. The goggles, however, frequently became dirty and scratched, claimant said, because the laborers were working with concrete. He claimed to have been complaining about the goggles for "three or four weeks" before the accident. [T1-53].(2)

On the day of the accident, Mr. Ortiz was specifically engaged in stripping wood forms from a hardened concrete cylinder, that was part of the structure to hold a sign up. He was not wearing goggles. He claimed that the previous day he had turned in his safety goggles to the project supervisor, Randy Beckman (who has since died), because they had become unusable, and he could no longer see through them. When Mr. Ortiz arrived at work on October 4, 2004, he said he was not provided with new goggles, however, although he asked Randy for them, nor was he provided with a prybar to perform his assigned task. He claimed that he "didn't have much of a choice" in terms of continuing to work without goggles as he saw it. [T1-54]. He testified: "I can't say I don't want to work." [Id.]. After talking with "either Randy or Joe DiMarco" (the foreman), about his job assignment, he drove alone to the job site about one mile away.

Sal Varajas, the "box stripper" on the job, was in the truck when claimant arrived at the job site wearing only a hard hat, a vest, and gloves. [T1-39]. "Tony", the flagman, was there as well. [Id.]. It was from the truck that claimant got the tools he then used, saying Sal "gave me whatever tools that he had." [T1- 41]. Mr. Ortiz said that Sal had only three hammers on the floor bed of the truck. Although Mr. Ortiz said he asked for one (from Sal), there was no pry bar available. He grabbed the hammers. As they worked, he said, Sal and he "were facing back to back." [T1- 49]. He could "not tell" if Sal was wearing goggles, because "if you're wearing a hard hat, you can't see anything." [T1-50]. He testified that Sal did not have a pry bar, saying "If he had one I would have used it." [T1-49].

Thereafter, Mr. Ortiz began separating the wood forms from the concrete. Mr. Ortiz said after doing some work, he asked Sal again if he was sure he did not have any pry bars. When Sal said he did not, Mr. Ortiz said that "knowing me the way I am, I probably looked in the truck." Upon failing to find a pry bar, Mr. Ortiz found himself using two hammers to dislodge the wooden forms, using the claw of one hammer as a prybar replacement. As he struck one hammer with the other for the "first strike" [T1-47], a piece of metal broke off and flew into his unprotected eye.

Mr. Ortiz claimed that over the "two and a half year" history of the contract work now 80% complete, in terms of Columbus' provision of equipment, the provision of equipment started to deteriorate. He claimed that in the beginning, "everything was brand new" then "they started holding back . . . started not bringing in material, shovels, vests, hard hats, you name it." [T1-55]. To obtain a new set of goggles

"in the beginning you always have to ask the foreman . . . And the guy that's running the yard would give you the material that you need . . . Basically give him your old one [safety equipment], you know rain gear, or whatever it was, a vest, hard hat and replace it." [T1-56-57].

Later, he said, safety equipment was moved to the main office rather than the job site.

Mr. Ortiz recalled that weekly safety meetings were attempted, wherein there would be discussion of what gear would be needed for the job scheduled for the following week. As a shop steward, he recalled complaining at such meetings about the problems with the equipment. If an issue was left unaddressed, the next step would be taking a complaint to the State inspectors. Mr. Ortiz said: "If I didn't get nothing [sic] from the State or the company, my last resort was the union." [T1-60]. As the shop steward, he explained, his job was "make sure they [the employer, the State] do it. [The union does not] want to get called every five minutes about a problem that they're having on the job site." [T1-61].

He did not recall seeing either Sokwon Im (the DOT engineer-in-charge) or David Maitland (Chief Inspector employed by the consulting resident engineer, Berger Lehman Associates, hired by the State) ("not at all" with respect to Mr. Maitland [T1- 63]) on the morning of the accident. [T1-62].

On cross-examination Mr. Ortiz confirmed that if a state inspector were to tell him or another Columbus employee that he should stop what he was doing because it was dangerous, he said he would not feel bound to stop what he was doing, explaining,

"depending on what the job is, you can't stop in the middle of doing something, if they ask you, you gotta complete it . . . They [the State] have to go to Columbus first to tell us to stop anything, depending on what we were doing at the time. He could ask us to stop. That's about it . . . [T]hey [the State] know their responsibility is to go to Columbus and to contact us from there." [T1-71-72].

Claimant said that he spoke to Dave Maitland and Sokwon Im concerning eyewear protection previously. Indeed, he claimed that there was a period some months earlier when he had registered the same complaints, supposedly waiting three to four weeks for new safety goggles.

Claimant insisted that despite his 20 years in the construction industry, he did not know if striking a hardened hammer head against another hardened hammer head can result in a flying fragment, and could not say if he had ever seen anyone else do it, or if he had ever done it before himself.

Claimant admitted that he did not check another source for tools and equipment, the "shanty" approximately 100 feet away from where he was working, but claimed that

"Randy" had "started storing everything under lock and key" in his office. [T1-90].

Claimant saw Dr. Anthony Salierno, an ophthalmologist, on the date of the accident, and received treatment for his eye from him and later from Dr. Jay Fleischman. He gave Dr. Salierno a history of how the accident happened, but denied telling Dr. Salierno that he had been helping a fellow worker and had removed his protective eyewear, and that he then felt a sharp pain in his eye. Viewing a copy of Dr. Salierno's notes, later admitted in part as Exhibit G, Mr. Ortiz said:

"What happened was that they hit the hammer. And a piece of the hammer came up. Whatever is stating here [in Dr. Salierno's notes, Exhibit G], I know I didn't tell him any of this stuff." [T1-89].

Mr. Ortiz then said that the only other person there with him was "Guido." [Id.]. When Guido asked him what had happened, Mr. Ortiz testified "I said a piece of steel shot in my eye," and did not tell Guido that he had removed his eyewear. [Id.]. When asked whether indeed he told Dr. Salierno that he had removed his goggles to help somebody the claimant did not answer directly, saying "The only thing I was worried about was getting myself into the hospital and getting myself taken care of."

On redirect examination, Mr. Ortiz said that in addition to complaints to Randy Beckman, Sokwon Im and the union about goggles, he "might have" complained to Joe DiMarco about safety goggles as well when it was suggested by his attorney. [T1-97].

Daniel Burdett, claimant's expert consultant engineer whose primary work has been as an expert witness for the last 35 years ("analyze or reconstruct accidents; that's what I do" [T1-110]), testified. He opined to a reasonable degree of engineering certainty that

"[Mr. Ortiz] was engaged in an operation where at any moment, any striking of the tools could have various debris, whether it be concrete, wood, steel flying in his direction. And so the wearing of goggles would absolutely be mandatory." [T1-115].

Indeed, he said, "striking one hardened metallic hammer with another could cause a chip in either hammer, particularly the hammer that's striking . . ." [T1-116]. He opined that utilizing a pry bar and a hammer would also endanger a worker's eyes, thus goggles should be worn.

Sal Varajas testified at his deposition(3) , taken on November 7, 2008, that safety goggles as well as other safety equipment such as a hard hat, vests, and gloves, were readily available for the Bruckner job at the Columbus' trailer office, on site, at the main office, and in trucks and changing areas. He said although everyone knew goggles were to be worn, "sometimes workers would. Other's [sic] wouldn't because at times it [sic] gets filled with dirt." [T1-138]. Mr. Varajas said the normal procedure for replacing the equipment was to ask for a replacement "when they ordered new stuff. If you had one that was no good you would ask the super or the foreman for a new one." [Id.]. Mr. Varajas said that with respect to obtaining goggles or hard hats and the like, there was no procedure for signing them out. He said that when he needed to replace a hard hat, a vest, gloves or protective eye equipment, he "would simply let them know that I'm going to pick up a new one so they not be bothered by it . . . [he could pick up new equipment] at the containers that they have on the job." [T1-150].

Additionally, there were boxes of goggles kept in the foreman's own pickup truck, the truck Mr. Varajas said they would toss tools in at the end of the day.

He had replaced protective goggles "many times," [T1-151]. The longest he had to wait to obtain replacement goggles when he told his foreman or the super that he needed them was "half an hour, right away." [Id.]. It was mandatory that goggles be worn on the job at all times, and the use of goggles was brought up in the weekly safety meetings, held every Monday morning and typically lasting approximately 15 minutes. Because he did "heavy work", he might need to replace his goggles every two days or so. [T1-152-153].

Although he could not specifically remember arriving at work on the day of Mr. Ortiz' accident, he did remember that it occurred sometime in the morning, although he placed it at "around 9, 9:30." [T1-155]. He said Mr. Ortiz drove them both to the job site from Columbus' main office. Although Mr. Varajas got tools from his foreman, Frank Lopez, after receiving his assignment, and put them in the box truck, he did not observe what Mr. Ortiz may have done, because the truck had already been started. He said that Mr. Ortiz told Mr. Varajas to "come on

you can go with me." [T1-195].

When they arrived at the work site, he saw Mr. Ortiz take his tools from the box truck over to the forms they were to strip. They did not speak from the time they started working on the forms.

Mr. Varajas said he was standing about five feet from Mr. Ortiz when claimant was injured, but did not see what caused him to be injured because "[Mr. Ortiz] was behind the footing. He was on one side, I was on the other." Mr. Varajas was wearing goggles, and was using a pry bar and a hammer. Before they started stripping the forms, Mr. Varajas recalled seeing safety goggles on Mr. Ortiz' head, and recalled that the goggles covered his eyes. "All I know when we started to work he had them on." [T1-196].

Mr. Ortiz was "behind the footing, removing the footing hammering and . . . he suddenly began to walk towards the flagman." [T1-166]. He did not hear any outcry of pain or otherwise from Mr. Ortiz, just the sound of hammering. The first indication that Mr. Ortiz had been involved in an accident was "[t]hat he grabbed his eye." [T1-160]. Next, he saw Mr. Ortiz as he walked toward the flagman, holding his goggles with one hand, as he had the other hand over his eye. It was the flagman who told Mr. Varajas that claimant had hurt his eye.

David Maitland, a civil engineer employed by Berger Lehman Associates (consultants to the State of New York), as the Chief Inspector for the Bruckner project on October 4, 2004, testified briefly. He confirmed that Columbus was solely responsible for providing safety equipment, and that workers were required to use "hard hats, vests, goggles, gloves, [and] work shoes." [T2 -7]. He was on-site on a daily basis, generally overseeing the project to observe whether it was being completed in accordance with "plans, specifications and adhering to the normal working day operation." [T2-5]. He found that eye protection was readily available to the workers in October 2004. Eye protection could be found in a

"storage trailer at [the] field office. And then all [the] pickup trucks had

. . . goggles and extra gloves and stuff like that for the men." [T2-7].

He did not receive any complaints from anyone about not getting goggles.

Mr. Maitland knew Mr. Ortiz as "a foreman and a shop steward." [T2-8]. On October 4, 2004 he saw Mr. Ortiz stripping wood forms using "a couple of hammers" and not wearing goggles. [T2-10]. Mr. Maitland said: "I stopped right away, told him to get eye protection and then I left." [Id.]. He stopped because

"[Mr. Ortiz] didn't have a crowbar. And that's not the way of stripping forms. I don't like the two hammers . . . I believe he was trying to use one hammer to hit the other one to get the claws behind the form . . . [A]s long as I've been in construction" that has been viewed as a dangerous activity. [T2-10].

After speaking with Mr. Ortiz, Mr. Ortiz walked away, and Mr. Maitland "thought . . . [claimant] was walking toward his pickup truck", explaining "most of the pickup trucks had extra goggles." [T2-11]. While Mr. Maitland generally thought that an instruction he gave would be followed, and that he was not required to go to a foreman to be listened to, he nonetheless "always backed up [his] warnings with a call to the supervisor, which is Randy Beckman" and that is what he did that day. [T2-11]. If Ortiz had told him at the time that he had no goggles, then Maitland would not have told claimant he needed to work anyway ("absolutely not" [T2 - 12]). Additionally, Ortiz never told Mr. Maitland there was no crowbar available, and Mr. Maitland assumed Mr. Ortiz was going back to the pickup truck to "get the proper stuff." [T2 - 12].

Mr. Maitland kept daily inspector's reports that were kept in the field office. There is a notation concerning the claimant's accident, but no earlier notation that claimant had been told to get eyewear protection. [Exhibit D]. He would not usually make a note that someone was not wearing a hard hat either, he "would just tell the guy to get a hard hat." [T2-20].

Sokwon Im was employed by the DOT as a construction inspector with the title of engineer-in-charge on the date of the accident. He was the highest level state employee at the job, and repeated that Columbus was solely responsible for providing all equipment, including safety equipment, and for directing the job and its employees. Mr. Im said his responsibility was to make sure the contractor (Columbus) was performing the work in accordance with contract specifications, as well as fulfilling safety obligations. He was familiar with Ortiz as a laborer on the project, but did not recall ever being advised by Mr. Ortiz that Columbus was not providing goggles at the site. He had seen workers use two hammers to remove forms, but was not specific as to how such hammers were used, nor was he asked.

Joseph DiMarco, was the assistant superintendent of the Bruckner project on October 4, 2004. He started at that particular project in or about June 2004, as the project neared completion. He remembered Mr. Ortiz as a laborer and as shop steward for Local 1010. He repeated that Columbus was responsible for providing safety and other equipment, that the DOT did not provide any tools, and noted that some workers might bring in personal tools as well, although it was preferred that the workers use the company equipment. He said that safety goggles were in the office trailers, and would be stockpiled in the main office. If someone wanted to get new goggles,

"if he didn't know where to get them in the trailer, then he would ask for them. If we didn't have them then they would have to be reordered." [T2-54].

By "trailer" he meant the "trailers on the site . . . owned by Columbus." [Id.]. He said that usually, during working hours, the trailers would be open. It was only "sometimes" that they were kept under lock and key. [T2-55].

Mr. DiMarco did not recall any complaints about a shortage of eye protection, nor did he recall Mr. Ortiz, specifically, complaining to him about any goggle shortage. He said safety meetings were held weekly, and there were no complaints about eye protection. He said there are "always" goggles around. "[T]hey may not be in good, great shape, but there's . . . always glasses around." [T2-66]. They could often be found in the workers' changing area as well. He said he would not fire someone for saying "it's unsafe I can't work", unless they made a habit of it. If there were no goggles on the site, while Mr. DiMarco did not personally have responsibility for ordering them, the main office would get them and they "would have to be picked up that day" or within 24 hours. [T2-67].

Additional testimony by Dr. Anthony Salierno, from a deposition taken on March 25, 2010 with both counsel present(4) , confirmed the fact of the claimant's injury and the emergency surgery he performed to his left eye, as well as the doctor's practice concerning taking a history. His assumption was that the written information describing the accident could only have come from one source, the claimant. [T3-18]. The specific information noted was that claimant had removed his safety goggles to help a fellow worker, and was hammering metal. As to a present memory of Mr. Ortiz' description of the accident, Dr. Salierno recalled that Mr. Ortiz said he had removed his protective eyewear. It is noted that the typewritten note recording this information is dated March 18, 2005. [See Exhibit G]. Dr. Salierno said that his summarizing note from March 18, 2005 would have been from his own "recollection and review of the chart." [T3-14].

Claimant called Dr. Jay Fleischman - who examined claimant on October 5, 2004 upon referral from Dr. Salierno, and performed additional surgery on Mr. Ortiz on October 25, 2004 - as a rebuttal witness to the party admission mentioned in Dr. Salierno's testimony, and recorded in Dr. Salierno's notes of March 18, 2005. [See Civil Practice Law and Rules 3117 (d)]. Dr. Fleischman claimed that as part of his taking of a history, had the history been that Mr. Ortiz had goggles in his possession and removed them, such would have been written down in his notes. Dr. Fleischman testified on direct examination concerning his initial history inquiries:

"I asked him what had happened. He told me that at 7:30 in the morning he was hammering metal. He had suffered a double penetrating injury to his left eye that was proven on CT scan. And he had emergency surgery at Westchester Square Hospital at 1:30 p.m. to close the anterior entrance site." [T3-50].

When asked directly whether he made "any inquiry as to protective eyewear", Dr. Fleischman said (rather than yes or no): "Well, certainly that's part of the history whether or not he had any, because then there would be an expectation, or probability - or possibility of glass fragments in the eye." [T3-51]. On cross-examination Dr. Fleischman reviewed his notes and saw that he had written "a piece of metal broke off his hammer while he was hitting concrete" and conceded the discrepancy between hitting metal and hitting concrete, and the discrepancy between his notes. [T3-56-57].

DISCUSSION AND CONCLUSION

A large part of the resolution of this claim rests upon the relative credibility of the witnesses, and the weight of the evidence. Resolving issues of credibility is the province of this court as the trier of fact. LeGrand v State of New York, 195 AD2d 784 (3d Dept 1993), lv denied 82 NY2d 663 (1993). An important part of that role is observing the behavior and demeanor of witnesses as they testify, assessing the internal consistency of their accounts, and the court is never bound to credit a particular fact. Indeed, " '[i]f everything or anything had to be believed in court simply because there is no witness to contradict it, the administration of justice would be a pitiable affair' (Punsky v City of New York, 129 App Div 558, 559; Matter of Nowakowski, 2 NY2d 618)." Brennan v Bauman & Sons Buses, 107 AD2d 654, 655 (2d Dept 1985); accord Lucks v Lakeside Mfg., Inc., 37 AD3d 666 (2d Dept 2007); see 1A NY PJI3d 1:41, at 55-56 (2006). Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has failed to establish, by a preponderance of the credible evidence, a basis for holding the State of New York liable for his unfortunate accident and injury, under the various theories propounded. For the most part, the Court simply does not credit claimant's account of the matter, and finds his testimony lacking in consistency and credibility.

Labor Law 200

Labor Law 200 codifies the common-law duty of an owner or contractor to exercise reasonable care in providing workers a safe place to work. Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 (1993). "Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law 200 . . . (citation omitted)." Comes v New York State Elec. & Gas Corp., supra at 877; see also O'Sullivan v IDI Constr. Co., Inc., 7 NY3d 805 (2006).

Additionally, "[t]he retention of the right to generally supervise the work, to stop the contractor's work if a safety violation is noted, or to ensure compliance with safety regulations, does not amount to the [authority to supervise] and control . . . necessary to impose liability on an owner or general contractor pursuant to Labor Law 200." Dennis v City of New York, 304 AD2d 611, 612 (2d Dept 2003); accord Cambizaca v New York City Tr. Auth., 57 AD3d 701 (2d Dept 2008).

What constitutes "authority" is narrowly defined. Thus in Ortega v Puccia, 57 AD3d 54, 62 (2d Dept 2008), the Appellate Division said:

"Although property owners often have a general authority to oversee the progress of the work, mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law 200 . . . (citations omitted). A defendant has the authority to supervise or control the work for purpose of Labor Law 200 when that defendant bears the responsibility for the manner in which the work is performed."

In this case, as attested to by all pertinent witnesses, including claimant himself, the State of New York did not exercise control over the means or methods by which the contractor or its employees performed their work. Responsibility for the day-to-day manner in which the work was performed rested in Columbus, and some inspection and compliance responsibilities rested with Berger Lehman Associates, the consulting engineers hired by the State of New York. The State of New York did not direct or control claimant's work, and did not provide him with tools or materials. The only witness who indicated that somehow the State might provide tools or materials as a last resort, was claimant, without any substantiation or other foundation for such a statement. Based on the foregoing, the Labor Law 200 and common-law negligence causes of action are in all respects dismissed.

Labor Law 241(6)

Strict liability under Labor Law 241(6) attaches if the owner or contractor has violated a rule or regulation of the Commissioner of Labor that sets forth a specific standard of conduct - as opposed to a general statement of common-law principles. Violation of that specific standard must be a proximate cause of the accident. Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 (1993). Claimant argues that the requirements of Industrial Code Section 23-1.8(a) [12 NYCRR 23-1.8(a)] were violated, and that such violation was a proximate cause of claimant's accident and injury.

As applicable here, that section of the Industrial Code provides:

"Eye Protection. Approved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning or cutting operations or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes." 12 NYCRR 23-1.8(a).

As an initial matter, the Court agrees that such provision may provide the basis for liability, as it does indeed set forth a specific standard of conduct, its potential basis is conceded by defendant, and such has been held previously. See generally Galawanji v 40 Sutton Place Condominium, 262 AD2d 55 (1st Dept 1999), lv denied 94 NY2d 756 (1999); Dennis v City of New York, supra.

The Court is also satisfied that the activity claimant was engaged in fits in the catch-all provision of the code ("while engaged in any other operation which may endanger the eyes"), and would have still fit within such provision had he been performing the work in a proper fashion utilizing a prybar and a hammer to dislodge the wooden forms, rather than the methodology he chose, recognized by everyone who was asked (except him) as a dangerous thing to do.

Significantly, however, the Industrial Code requires both that the owner or contractor have protective eyewear available, and that the worker "shall" use them (allowing for comparative fault), unlike the strict liability upon owners and others imposed for elevation- related accidents under Labor Law 240(1).(5) While claimant has established his own failure to wear protective goggles, as well as his understanding that he should do so, he has not satisfied his burden of establishing that the eyewear was not readily available, and is thus primarily responsible for his own unfortunate accident. To establish a violation of the Industrial Code provision, and therefore liability under Labor Law 241(6), claimant needed to establish that eye protection was not provided or, if available, for comparative fault purposes, that he failed to use them through no fault of his own.

In this regard, it is only claimant's scattered testimony that suggests that goggles were not available on October 4, 2004, and the less than credible reasons therefor. No other workers testified to that effect. Indeed, the only fellow worker whose testimony was received, albeit in the form of a non-party deposition taken closer to the event, was to the effect that not only were there goggles available in numerous locations, but that claimant was wearing them that morning.

Moreover, claimant admitted to his treating physician that he had taken off his protective eyewear that day, as noted in a history taken by Dr. Salierno, whose source could only have been claimant. When confronted with the admission, claimant first attempted to attribute "Guido" as the provider of such information, and then later did not directly answer whether he had told the doctor that he had taken off his goggles to help somebody. As he testified in a roundabout fashion, Dr. Fleischman never asked claimant why he was not wearing goggles.

Further holes in claimant's recall of events were that he had made earlier complaints about eyewear, yet no one who testified recalled such complaints, nor did claimant provide any other witnesses or documentation of such complaints. Indicating that he had waited three to four weeks to be given new goggles is simply not credible as a practical matter of common experience, nor is it credible based upon the testimony of others who would have been in attendance at the safety meetings, or who had supposedly been the recipients of such complaints, the non-party witnesses Joseph DiMarco, David Maitland and Sokwon Im. While claimant is not required to present corroborative evidence of his sole testimony on the point, the lack of any corroboration - from someone in the union, or someone attending a safety meeting, or another worker having a problem with obtaining safety equipment and the like - based upon the Court's observations of Mr. Ortiz' demeanor and bearing as he testified, suggests that his account is simply not true. Only Mr. Ortiz indicated that tools or safety equipment were always under lock and key, that Columbus had stopped getting new tools or safety equipment because the job was winding down, and that a worker would need to surrender safety equipment - such as goggles - before getting new ones.

Based upon the small details, too, Mr. Ortiz' account is not credited. For example, Mr. Varajas' testimony that he was using a prybar and hammer to do the assigned job, as provided by his own foreman, as well as his observations of Mr. Ortiz taking tools out of the box truck on-site directly contradicts Mr. Ortiz' elaborate description of asking Mr. Varajas for tools repeatedly, and his indication that Mr. Varajas was working without a stripping bar as well. Similarly, claimant testified he drove alone to the job site, while Mr. Varajas said he joined Mr. Ortiz in the truck.

There is ample evidence in the record that Mr. Ortiz knew where to find the safety goggles and that he was expected to use them, that he was wearing goggles at some point in the morning and chose to proceed without them for no good reason even though he was engaged in an activity that might endanger the eyes, and had been particularly warned to stop the dangerous practice of striking two hammers together to pry off a wooden form from a concrete cylinder.

Based on the foregoing, the Court finds that claimant has failed to establish any basis for State liability under Labor Law 241(6), in that Industrial Code 23-1.8 (a) was not violated in the first instance, and that it was claimant's own negligence in removing his goggles, and then increasing the risk of injury by striking two hammers together, that was the sole cause of his accident and injury.

While it is unfortunate that Mr. Ortiz injured himself, and the Court is sympathetic to the claimant, the mere fact of such an accident cannot alone establish the defendant's liability.

Claim number 110267 is in all respects dismissed. All trial motions not otherwise disposed of or withdrawn are denied.

Let Judgment be entered accordingly.

September 17, 2010

White Plains, New York

THOMAS H. SCUCCIMARRA

Judge of the Court of Claims


1. Unless the context requires otherwise, references to claimant refer to John Ortiz, as the claim of Mariann Ortiz is a derivative one.

2. References are to the trial transcript over the three days of trial, [T1- x ], [T2- x ], [T3- x.]

3. The Court was satisfied that Mr. Varajas was an unavailable, non-party witness (and indeed, both counsel read from his deposition). See Civil Practice Law and Rules 3117(a)(3)(iv).

4. Civil Practice Law and Rules 3117(a)(4).

5. "Liability under section 240 (1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident. In such cases, plaintiff's own negligence is the sole proximate cause of his injury . . .(citation omitted)." Gallagher v New York Post,14 NY3d 83, 88 (2010); see Robinson v East Med. Ctr., LP, 6 NY3d 550 (2006); Montgomery v Federal Express Corp., 4 NY3d 805 (2005).