Thomas v State of New York

[*1] Thomas v State of New York 2004 NY Slip Op 51255(U) Decided on September 7, 2004 Ct Cl Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 7, 2004
Ct Cl

STANISLAUS THOMAS, Claimant,

against

THE STATE OF NEW YORK, Defendant.



98974



For Claimant:

BISOGNO & MEYERSON

BY: PATRICK BISOGNO, ESQ.

For Defendant:

HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL

BY: MELITO & ADOLFSEN

STEVEN I. LEWBEL, ESQ., OF COUNSEL

Thomas H. Scuccimarra, J.

Stanislaus Thomas, the Claimant herein, alleges in Claim Number 98974 that on July 27, 1998 he was working as a laborer on a bridge rehabilitation project in the area of Elmont Road Bridge on the Southern State Parkway pursuant to an contract entered into between Maria Maintenance, his employer, and the State of New York, an owner under Labor Law §240(1)[FN1], when he was seriously injured in a fall from a ladder. The first half of a bifurcated trial of the matter was held on June 8 and 9, 2004. This decision relates to liability alone.

Claimant testified that he had been working nights at the construction site for approximately two (2) weeks at the time of the accident, doing the "detour work . . . setting up

. . . the cones and the barrels for the traffic, closing lanes and diverting traffic . . . "[T-17],[FN2] from about 10:00 p.m. to 6:00 a.m. He described his work as that of a "general laborer" [T-19-20] who - in addition to the detour work - would load trucks, shovel, use a pick axe, climb ladders, climb fences, among other types of work.

After completing the detour work on July 27, 1998, which took approximately one (1) [*2]hour, Claimant was directed to work with a jackhammer chopping out concrete underneath the bridge where it arced at its highest point approximately 14 feet above the road surface on a raised platform of a scissor lift. [T-25]. When the platform was raised above the roadway, it was approximately six or seven feet high. Claimant described himself as 5' 11" in height. When Mr. Thomas got on the scissor platform that night he used an aluminum ladder to ascend and step on the platform. The ladder itself was approximately six feet high and the rungs were approximately 18 to 24 inches wide: a "regular size aluminum ladder." [T-53]. He said that generally, unless there was a specific break for coffee or for lunch for example, when all those who were working on the platform would be going down, rather than lower the scissor lift workers would descend on the ladder. Although there is a ladder that is part of the scissor lift [See Exhibit B], Claimant indicated he "never use[d]" it since it required that a "lever" be "lifted" and would disturb the platform and the ongoing work. [T-39].

Upon returning to the scaffold after his coffee break, Claimant realized that he had forgotten his goggles and mask below when he was operating the jackhammer and something fell in his eyes. He went down the aluminum ladder to retrieve them. [T-41]. The scaffold was fully extended in the air and the ladder was leaning against it. No ropes or other devices attached the ladder to the lift, nor was any person present holding the ladder steady. As he descended the ladder "briskly," he had his back to the rungs and his chest was facing outward. His hands held the sides of the ladder. He indicated that he had gone down this ladder in the same fashion "many times," and had used this method of descending ladders during his thirteen years of construction work. [T-52].

When he was approximately halfway down the ladder he felt it shaking and tilting sideways. Claimant then "landed on . . . [his] side and fell." [T-44-47]. The ladder hit the ground too. [T-50]. Claimant estimated that the accident occurred at 1:50 a.m. [T-54].

Mr. Thomas claimed that Peter Zimmerman, Claimant's supervisor, as well as the foreman had been on the scaffold when Claimant fell. [T-50]. Claimant noted that the lift had been broken the night before and production had fallen as a result. Supervisory staff were present to exhort the men to speed up their tasks, but no one told him not to descend the ladder or to return. Claimant did not indicate to anyone that he was exiting the platform and going down the ladder.

After he fell Claimant was taken to Franklin General Hospital in a pickup truck by the shop stewart, Steve. [T-55]. The stewart remained with him at the hospital, returning Claimant to the yard where his car was parked at approximately 3:00 a.m.. He did not report his injury to Mr. Zimmerman, nor did Mr. Zimmerman accompany him to the hospital. [T-56].

On cross-examination, he admitted that there was continuous construction going on that night and the site was very noisy, but thought that if "somebody would have called me I would have heard it." Slightly inconsistent deposition testimony concerning his descent down the ladder was also conceded to be true. He agreed that he had been up and down the ladder several times that night without incident. He conceded that he had "rushed down" or moved "quickly" when he went to get his goggles. [T-59]. Throughout the evening, generally, when he ascended he faced the rungs of the ladder; when he descended, he would face outward. [T-69-70].

Claimant was the only witness on his direct case.

Peter Zimmerman, Claimant's supervisor, testified on behalf of the Defendant. He [*3]indicated that he had worked at Maria Maintenance from May 1997 until January or February 2000. Although his title was "never put in writing", his job on the bridge rehabilitation project was as "superintendent", responsible for reviewing drawings and organizing the work and materials for all five of the bridge projects contracted between Maria Maintenance and the State of New York. The type of work to be done at the Elmont Road Bridge included resurfacing and "overhead patch work" on the under deck of the bridge. [T-93]. In order to chip the concrete out so that it could then be repaired workers would generally use 17-pound pneumatic guns with air compressors, known as pistol grip jackhammers or chipping guns. [T-94]. To do the overhead patchwork, equipment at the job site included compressors, pistol grip jackhammers and their associated bits, safety equipment including hard hats and glasses, ". . . a scissor lift, maybe two, [and] light towers for vision." [T-95].

He described the scissor lift as a "four-wheeled machine with a platform that scissors up to the working elevation." [T-96]. In its lowered position a worker "would climb the ladder [welded to the machine] and go through the gate." [Id]. The witness identified three photographs as fairly and accurately representing what the scissor lift used on the evening of July 27, 1998 looked like. [See Exhibits A, B and C].

Mr. Zimmerman reported that the Claimant's duties on the night of the accident were in accordance with his union designation of laborer. Duties included working as directed with the "various tools of their trade, which would include shovels, brooms, chipping guns, . . . mov[ing] material . . . " and detour work. [T-100-101]. He confirmed that Claimant was doing chipping work underneath the bridge on the scissor lift platform on the night of the accident.

Mr. Zimmerman was approximately 15 to 20 feet away when he saw Claimant "leave the platform on the ladder in a manner which I considered to be backwards . . . [Claimant] went down body first instead of back first, got to the bottom and he jumped from that step down. It's about 18 to 20 inches from the ground." [T-106; 103]. The witness testified that the platform - which contained Mr. Thomas and one or two other workers at the time - was lowered in order to allow Claimant to leave the lift, and that he did not recall seeing any free-standing ladders leaning against the lift that night. He did say, however, that Maria Maintenance had orange or blue fiberglass extension ladders at the job site. [T-110]. He did not recall there having been any problems with the scissor lift that night and had himself "investigated the machine" and looked over the affixed ladder within two weeks prior to Claimant's accident. [T-111]. He asserted he did not inspect the ladder after the accident.

On cross-examination, Mr. Zimmerman conceded that in deposition testimony taken on December 17, 2003 he had testified that he had made a physical check of the ladder after the accident, and then said he merely "looked over the situation" but did not "check every weld on the ladder." [T-114]. The witness also had to agree that there were bolts in the ladder attached to the scissor lift that are visible in the photographs, [See Exhibits A, B and C], that bolts may loosen, but insisted that the ladder was welded as well. [T-115-116]. The platform, he reiterated, was in the lower position depicted in Exhibit A when Claimant got off the ladder, or "a little higher, but as low as that is approximately what it was," [T-156] but did not recall having actually seen it lowered.

He acknowledged that there were free-standing ladders "for the daytime work" within 300 to 400 feet of the area where Claimant was working but said that to his knowledge they were [*4]not being used to gain access to the scaffold. He admitted that he was going to fire Mr. Thomas that evening because his work was substandard, but did not dislike him as was suggested by Counsel for Claimant, but "thought he was a great man." At Mr. Zimmerman's deposition he had indicated that he thought that Claimant had jumped off the ladder from two rungs up; whereas at trial he was more positive that that was the scenario. He also said: ". . . [Claimant] didn't fall until he hit the ground and stood on his two feet, then fell. That's what I saw." [T-148].

In contrast to Claimant's version of the trip to the hospital, Mr. Zimmerman indicated that he drove Claimant to the hospital with the shop stewart, Steven Oragema, either in his car or one of the company's pickup trucks, leaving the stewart to "watch in the waiting room and get signed in to make sure he was properly seen." [T-149]. He denied that only the shop stewart drove the company pickup truck and waited at the hospital, and stated that "the shop stewart had money . . . [and Mr. Zimmerman asked Mr. Oragema] you want to take care of getting him back and . . . [Mr. Oragema] said yes." [T-153].

Jeffrey Ketchman, Defendant's engineering expert, testified based upon his background in ladder design as well as forensic experience in ladder use, mobile work platforms and accident reconstruction, as to the safe use of ladders. He taught a course in bio-engineering and design that included ladder design, as an example of applying theory into practice in design principles, to include human error factors. He opined that the safest practice is to face a ladder when descending because the advantage of a "three point contact" with the ladder is preserved while stepping from rung to rung. Better equilibrium is maintained in this fashion with two feet and one hand - or two hands and one foot - holding on to the ladder at any given time during the descent. Additionally, facing the rungs allows for a better hand grip when climbing to ensure proper balance. When the ladder is inclined, the user who faces it can lean into the ladder creating greater stability, and facing it allows for better footing because the entire foot will engage the rungs. The witness also stated that the Occupational Safety and Health Administration, American National Standards Institute, and the Accident Prevention Manual for Industrial Operation published by the National Safety Council all recommend or specify that ladder users always face the ladder on ascent or descent.

He also opined that with regard to either type of ladder - the aluminum freestanding ladder Mr. Thomas claimed he was using when he fell, or the ladder affixed to the scissor lift itself depicted in Exhibits A through C - the safe way to ascend and descend would be facing the rungs, and that Claimant's descent facing outward was the proximate cause of any injury. [T-215-216].

Notably, on cross-examination, the witness said that coming down the ladder backwards could induce it to shake and then because of the user's position facing outwards he would be unable to stabilize himself. He confirmed that all ladders shake regardless of whether the ladder is secured at the top, although he admitted you could prevent a ladder from going all the way over were it secured in some fashion at the top. There would still be movement regardless. [T-229].

He would not agree that the mobile elevating work platform - as he described the scissor lift - was a "structure" within the meaning of 12 NYCRR §23-1.21 or that the restrictions concerning securing ladders applied since the regulation concerned ladders of greater than ten feet and what was at issue was a six-foot ladder in a hypothetical posed to him by Claimant's [*5]counsel. He explained that a structure is like a scaffold that is nailed into place, or fixed. The platform here moved. [T-230-233].

Further, he said "if a person is midway down a six-foot ladder and it slides out . . . [as had been suggested by counsel] and the person is facing the ladder, when the person simply shifts sideways with it, and . . . has two feet to go and rides the ladder down. It's not a question of falling off the ladder and having the ladder go over sideways. It's different from the ladder shaking, [which] is what I understood the . . . [Claimant] to be saying." [T-221]. He opined that generally, there is no need to secure a six-foot ladder. Mr. Ketchman reiterated that based upon the fact that Claimant was rushing backward down the ladder, and that the ladder had been used successfully throughout the work period by Claimant and others, he could say within a reasonable degree of engineering certainty that the proximate cause of Claimant's fall was his use of the ladder, and not the fact that the ladder was unsecured if indeed it was. [T-236].

No other witnesses testified.

DISCUSSION AND CONCLUSION

Labor Law §240(1) - the so-called Scaffold Law - imposes strict liability and requires

". . . [ a]ll contractors and owners and their agents . . . [with some exceptions] in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to 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." The work being done should contain an elevation related risk, and the injury suffered by the worker should be associated with that risk.

The fact of an accident, however, at a job site involving an elevation related risk, does not by itself establish a violation of Labor Law §240(1). Blake v Neighborhood Hous. Servs. of NY City, 1 NY3d 280, 288-289 (2003); see also Weininger v Hagedorn & Co., 91 NY2d 958, 959 (1998). A Claimant must establish violation of the statute by the owner's agent - here, the employer - in failing to provide and place adequate safety equipment, and an injury resulting from that failure. While it is true that comparative negligence is not a defense to absolute liability under the statute, when an accident is entirely the fault of the Claimant there is no strict liability under this statute. See e.g. Meade v Rock-McGraw, Inc., 307 AD2d 156 (1st Dept 2003); Gomes v State of New York, 272 AD2d 440 (2d Dept 2000); Anderson v Schul/Mar Constr. Corp., 212 AD2d 493 (2d Dept 1995), appeal after remand 258 AD2d 605 (2d Dept 1999), lv denied 93 NY2d 813 (1999). As the Court of Appeals noted: " . . . [I]f a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation." Blake v Neighborhood Hous. Servs. of NY City, supra, at 290.

At the outset, the Court is faced with a credibility issue as to what type of ladder was actually used by Claimant on the day of his accident. Unfortunately, it would seem that both Claimant and Mr. Zimmerman suffered from the need to improve the facts presented as their testimony varied from questioner to questioner. There was no love lost between these two witnesses. Indeed, if Claimant jumped from the fixed ladder as stated by Mr. Zimmerman, such actions would bar recovery under Labor Law §240(1) too. See George v State of New York, 251 AD2d 541 (2d Dept 1998), lv denied 92 NY2d 815 (1998). The salient point is, nonetheless, that [*6]while it is credible that the scissor lift platform would be raised and lowered at significant break periods, it is unlikely that within minutes of a coffee break, when the three or four workers including Mr. Thomas had returned to working on the platform which had been lifted up into position at the work site under the bridge, the platform would again be graciously lowered to allow Mr. Thomas to descend to retrieve his forgotten safety equipment. Indeed, the Court doubts that the platform was ever lowered once work began - it being far more likely that it would be placed where needed under the bridge and free-standing ladders available throughout the work site used to allow ready ascent and descent from the raised work space to the ground below.

There was no testimony from Mr. Thomas as to whether the platform had been lowered and then raised again for the coffee break, for example, and Mr. Zimmerman was far too ready to disparage Mr. Thomas' accident claims to give a coherent story. Mr. Thomas claimed he always used a free-standing ladder to get up and down. Mr. Zimmerman said he never saw a free-standing ladder leaning against the scaffold that evening.

In any event, the scenario presented by Mr. Thomas, where he realizes his equipment is missing, moves to the unattached aluminum ladder quickly, rushes down facing the wrong way, makes it half way down the six-foot ladder, feels it shake, and then either jumps or falls is marginally more credible. It also casts the liability issue squarely in some nebulous ground where it could be said the construction site foolishly allowed a free-standing ladder to be leaned against a movable platform without securing it in some manner, albeit secure equipment in the form of the fixed ladder was available; and Mr. Thomas behaved recklessly in gamboling down a ladder facing the wrong way.

Claimant has clearly established that he was engaged in an activity protected under Labor Law §240(1). Concrete chipping activity was being done on a platform six to seven feet off the ground, underneath a bridge - a "permanent structure" under the statute - thus the Claimant was performing alteration, demolition and/or repair as contemplated by the statute. See generally Rocovich v Consolidated Edison Co., 78 NY2d 509 (1991); Aranda v Park E. Constr., 4 AD3d 315 (2d Dept 2004). Failure to provide appropriate safety devices, or providing only defective or insufficient equipment, or placing it incorrectly, violates Labor Law §240(1). Zimmer v Chemung County Performing Arts, 65 NY2d 513 (1985); Kaborycha v Kimmins Indus. Serv. Corp., 243 AD2d 687 (2d Dept 1997). Certainly Mr. Thomas was exposed to a gravity related risk by being directed to work on the platform, however, Claimant has not established that he was provided with either no equipment or defective equipment, or that it was not correctly placed.

It is argued that being provided with a means of ascent and descent that was not secured, that is, a free-standing ladder, added to the risk of injury. But being provided with such a ladder - if he was - also requires that the worker use it properly. Additionally, the facts actually developed in this case - as opposed to those speculative ones suggested by counsel - show that there was both a fixed ladder available that was in working condition, as well as a free-standing ladder, available also in good condition, and that it was not any defect in the ladders, or, for example, incorrect placement on uneven ground, or a sliding movement of an unsecured ladder, that caused the Claimant to fall.

Additionally, and again assuming it was a free-standing ladder Claimant used, there was [*7]no factual support upon which Claimant could argue that the industrial code requirements of 12 NYCRR §23-1.21 concerning ladders and ladderways were applicable here. In addition to referring to ladders of greater than ten feet, the code provision states: " . . . [a]ny portable ladder used as a regular means of access between floors or other levels in any building or other structure shall be nailed or otherwise securely fastened in place . . . " 12 NYCRR §23-1.21 (b)(4)(i). Mr. Ketchman opined that the provision did not apply, and contemplated a fixed scaffold as a structure if at all. The Court agrees.

Based upon the actual mechanics of the accident as described by Claimant, his own misuse of the ladder is the sole proximate cause of this accident. The undisputed testimony was that Mr. Thomas descended backwards, and had descended in the same fashion previously without injury, however, this time he was rushing. Others had used the ladder previously without incident. The ladder itself did not collapse or break as an element of causation in the accident sequence. Indeed, the likelihood is that the reason the ladder started to shake when Claimant was halfway down the six-foot ladder was his backward descent at a rapid pace, destabilizing the ladder. As noted in the testimony of Mr. Ketchman - whose testimony is credited and is essentially undisputed [See Gomes v State of New York, supra] - securing the ladder at the top would not have prevented a fall given the actual mechanics of Claimant's version of the accident, as opposed to some speculative hypothetical. Indeed, in his uncontradicted opinion there is no need to secure a six-foot ladder for safety purposes. Notably, since Mr. Thomas is 5' 11" tall, if, as he said, he was half way down the six-foot ladder when it began to shake, the distance to the ground was minimal. Additionally, it was not established that the proper procedure when using a six-foot ladder is to have another person hold it at the bottom, or some other element establishing that the placement of the ladder was improper.

After carefully considering the evidence presented and after hearing the testimony of the witnesses and observing their demeanor as they testified, the Court finds that the Claimant's own misuse of the equipment offered is the sole proximate cause of his accident. Accordingly, Claim Number 98974 is in all respects dismissed.

Let judgment be entered accordingly. Footnotes

Footnote 1: Counsel stipulated that the causes of action premised on alleged violations of Labor Law §§200 and 241(6) were withdrawn with prejudice.

Footnote 2: The references are to the trial transcript.