Opinion
101679.
Decided December 27, 2006.
Livingston L. Hatch, Esq., for Claimant.
HON. ELIOT SPITZER, ATTORNEY GENERAL By: HORIGAN, HORIGAN, LOMBARDO KELLY P.C., By:Jose, for Defendant.
This claim arises out of an accident which occurred on July 14, 1998, when claimant was injured while erecting scaffolding. He was working for a subcontractor of the State's general contractor which was building a maximum-security prison on State-owned property in Malone, New York. Claimant seeks damages for defendant's violation of Labor Law § 241(6) which imposes on property owners and general contractors a nondelegable duty to provide "reasonable and adequate protection and safety" to persons working on their property in construction, excavation, and demolition. The statute delegates to the State's Commissioner of Labor the authority to make "rules to carry into effect the provisions of this subdivision."
The case, commenced on December 27, 1999, originally was assigned to Judge Judith A. Hard, before whom all motions and matters pertaining to discovery were disposed of. A Note of Issue was filed on April 29, 2004. The case was transferred to this court for trial by order dated July 31, 2006. A bifurcated trial on the issue of liability was tried in this court on August 23 and 24, 2006.
The alleged basis for the violation here is a failure to comply with Industrial Code rule 23-5.1 (12 NYCRR), "General provisions for all scaffolds," and specifically subparagraph (h) thereof, which requires that "[e]very scaffold shall be erected and removed under the supervision of a designated person." Defendant maintains that the requisite supervision was provided, and even if the court were to find it was not, the absence of such supervision was not the proximate cause of claimant's injury.
Claimant's other assertion in his claim, that defendant violated Labor Law § 240 (1), was dismissed on defendant's motion for summary judgment, based on claimant's failure to demonstrate that the circumstances of the accident here involved an elevated risk. See Atkinson v State of New York, UID No. 2004-032-055 [Ct Cl, June 28, 2004, Hard, J.], affd Atkinson v State of New York, 20 AD3d 739 [3d Dept 2005].
A brief summary of case precedents, as pertinent to this one, is appropriate. In Allen v Cloutier Constr. Corp. ( 44 NY2d 290), the Court of Appeals held that liability for violating Labor Law § 241(6) and the rules promulgated thereunder may be imposed on a property owner regardless of whether the owner supervises or controls the work site where the injury occurs. Such a violation is some evidence of negligence; it does not preclude an owner from asserting contributory or comparative negligence as a defense. ( See Long v Forest-Fehlhaber, 55 NY2d 154.) A claimant also must prove that violation of the rule was the proximate cause of the injury sustained. ( Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 350.)
The duty to comply with the Commissioner's rules promulgated under § 241(6) is nondelegable ( e.g. Long v Forest-Fehlhaber, supra at 159; Allen v Cloutier Constr. Corp., supra). Because this essentially imposes vicarious liability on a property owner by virtue of his status as such, courts have held that the Labor Commissioner's safety regulation must consist of a "concrete specification[]," as opposed to a "general safety standard[]" embodied in the common law of negligence. ( Ross v Curtis-Palmer Hydro-Electric Company, 81 NY2d 494, 505.) The specific regulation in this case was held by Judge Hard to be a safety command of sufficient specificity to impute liability to an owner under § 241 (6). Accordingly, claimant's burden of proof at trial was to establish he would not have been injured but for the failure to provide "the supervision of a designated person."
Decision and order dated February 28, 2006 on defendant's motion to dismiss (Hard, J.). ( See Atkinson v State of New York, 12 Misc 3d 582 [Ct Cl 2006]). At trial, defendant's attorney asked the court to revisit this prior ruling. However, defendant never moved before Judge Hard for reargument and reconsideration of her decision, nor did defendant appeal the ruling. Judge Hard's unappealed decision remains the law of this case. See further discussion infra at 8.
Claimant also contends in an ancillary argument that Labor Law § 241(6), by imposing on a property owner a nondelegable duty to provide a safe place to work, places a burden of proof on the defendant to show that the means, method and manner of work "was being done safely." Claimant asserts that because defendant did not present such evidence at trial, including the testimony of State inspectors who were on the construction site, he is entitled to a presumption that the evidence would have been unfavorable to defendant. The court rejects this argument. It is claimant, in all respects, who bears the burden of proof to establish a violation of Labor Law § 24l (6).
***
Claimant testified that Baldwin Construction Company hired him from his union hall. His job was to erect scaffolding and to supply the masons with concrete blocks on the erected scaffold. The project used ladder-type metal scaffolding which was erected in three-level sections. The scaffolding frames for each level were six feet six inches high, so that the top of the second level measured 13 feet high. Claimant testified the method he used to erect the second and third levels from the ground was to lift the sections of frame above him and hang them onto metal inserts on the corners of the frames off the previously erected level. The frames remained hanging on the inserts until he climbed up to the second or third level, as the case may be, to lift the hanging frames off of the inserts and then to fasten each frame to the structure.
When the accident occurred, claimant had been working for Baldwin for four weeks. At that time, the active job site consisted of four or five buildings in various stages of construction. Claimant was assigned to Building 1, a large building. He had erected the first two levels of a scaffold and was embarking on the third. He hung three frames onto inserts on the second level and started toward the supply area to get another section of frame when he saw the first section of frame he had hung start to fall. He raised his left arm to prevent the falling frame from striking him, it hit his arm and the impact tore his bicep and rotator cuff. Claimant estimated the accident occurred about five minutes after he hung the section of frame which fell. When asked whether he knew how the accident happened, he could only speculate that a piece of equipment — perhaps a forklift that was loading concrete blocks onto the same scaffold — may have bumped the scaffold and dislodged the hanging piece, causing it to fall.
Claimant told the court he had little experience erecting scaffolding before he began working for Baldwin. While asserting he had no "designated" person who supervised him at the work site, his attorney asked him on direct "Who was your foreman" and he responded, "Jim Clark." He explained that when he started to work for Baldwin on this job, Foreman Clark directed another worker to show him how the company wanted the scaffolding built. The other worker showed claimant how to assemble the scaffolding for "about an hour." On cross-examination, claimant said he assembled the scaffolding the way Baldwin wanted it done and the way he was instructed to do the job "worked." By the time of the accident, he had hung approximately 40 or 50 pieces of scaffolding a day, for four weeks. He testified he had no previous problems with falling scaffold before the accident and his only "difficulty" was having to work by himself. On direct examination, claimant had testified he complained to Mr. Clark "pretty much every day," telling him he needed someone to assist him because his arms tired from lifting the scaffolding by himself. He said he also would see Mr. Clark when the latter wanted to move claimant to a different location. After the accident, when no one came to help him, he "went and found Jim Clark at the office" on the construction site to report what happened.
Claimant identified Robert Farfaglia ("Farf," as he was known) as the construction superintendent on the site. Claimant stated he saw the superintendent walk by several times but he had no contact with him. He talked to Mr. Farfaglia only after the accident occurred. Claimant also testified he could readily identify State inspectors at the work site by their orange vests. He said he attended weekly safety meetings conducted by Baldwin on the site, but had not expressed any concerns at those sessions regarding his work.
Claimant called his cousin, Dan Atkinson, as an expert witness on scaffolding and supervision requirements under OSHA and New York States rules and regulations.
The court reserved decision at trial on whether Mr. Atkinson qualified as an expert. The court accepts Mr. Atkinson as an expert based on his training and OSHA certification as a "competent" person (see fn 6, infra), in addition to his supervisory experience in scaffolding.
Mr. Atkinson told the court he was a "working foreman" in scaffolding. He worked as part of a scaffolding "crew" and also supervised them, i.e. made sure they "stayed safe" and that "everything was properly put together." He had been involved in scaffolding for twenty-five years. He testified that the only safe way to erect scaffolding at the elevation claimant was working was for one person to lift up the material to a second person standing on the next level to receive it, or to have a machine lift do it. He opined that had a supervisor been present, claimant would have been assigned "an extra set of hands," or machine assistance, so claimant would not have had to struggle working at a high elevation which led to a piece of scaffold falling on him. Mr. Atkinson opined that a "competent" scaffold builder should have been assigned for each building, not necessarily a supervisor for each. It was unsafe and unreasonable for claimant not to have had "direct" supervision, he said. Although he did not define "direct," given his stated opinion that there need not have been a supervisor designated for each building, the court infers from Mr. Atkinson's own experience as a "working foreman" that the essence of his testimony was his cousin, who admittedly had little prior experience erecting scaffolding, should have been assigned a "competent" scaffold builder to work directly with him.
The witness explained that "competent" referred to individuals who received a certain amount of training and testing under OSHA regulations. Defense witness Robert Farfaglia (see account of his testimony infra) testified this OSHA requirement applies to someone who inspects scaffolding which already has been erected, not to one who supervises its erection as to which rule 23-5.1 pertains.
Robert Farfaglia testified for the defendant. He was Baldwin's construction superintendent for seventeen years, overseeing entire projects on site, including scaffolding. He explained he had staffed this job with a general foreman for the masons and a general foreman, "Jamie Clark," for labor including scaffolding. He also assigned one foreman for each building on the construction site whose duties also encompassed scaffolding, but because the buildings were large, these "building" foremen might not always have been present where claimant actually was working. Mr. Farfaglia did not know the name of the building foreman assigned to Building 1 where claimant was injured, nor was such an individual identified by name or called as a witness at trial. Mr. Farfaglia also said the State itself had three government inspectors on site.
Mr. Farfaglia testified his Baldwin workers erected scaffolding alone, without a coworker, because his experience was that "you don't have two people tugging against each other," especially when working with the base plates. Although he acknowledged on cross-examination that he would have assigned another worker or someone with a forklift to assist claimant had he known claimant was starting to erect the third level, he said this really was a decision for the foreman to make and there was a "fine line" whether to do this on the second or third level of a scaffolding job.
James Clark also testified for the defense. Mr. Clark described himself as OSHA-safety certified with eighteen years' experience in erecting and taking down scaffolding. He said he had supervisory duties at the project which involved inspecting the scaffolding periodically throughout the day, every day, to ensure the scaffold was built right and the "people," i.e. the workers, were doing the job correctly. In response to a question from the court, Mr. Clark said he was the claimant's supervisor. He acknowledged that, as labor foreman, he also supervised "probably" 20 masons on the day claimant had his accident. Mr. Clark said he also stationed a foreman at each of the four or five buildings on the site. He walked the work site five or six times a day in July 1998. He said he had no recollection of claimant complaining about not having a coworker to help him. He acknowledged that, at the second level, i.e. thirteen feet, it was his recommendation that the worker place the scaffolding over the inserts and then climb up to the third level to lift them off for assembly.
***
The court asked the parties to provide guidance regarding the meaning of the terms "designated person" or "supervision" as used in Industrial Code rule 23-5.1(h), consistent with the law of the case that this rule is a "concrete specification." ( See footnote 3 supra; compare, Moutray v Baron, 244 AD2d 618 [3d Dept 2002], lv denied 91 NY2d 808; Lockwood v State of New York, 7 Misc 3d 1028(A) [Ct Cl 2005]; Bender v TBT Operating Corp., 186 Misc 2d 394 [Sup Ct 2000]). Neither side was able to cite authority which defined these words as used in the rule with greater specificity.
For example, does the rule require one supervisor for each building where scaffolding is being erected or does one for an entire job site suffice? Does one foreman for labor, which encompasses scaffolding workers but also others, satisfy the rule? Must the designated person be positioned to observe the worker at all times? Are there limits on the number of workers that one designated person may supervise? Are there industry guidelines, OSHA regulations or construction manuals for supervision that define the duties of a designated person in supervising the erection of scaffolding?
Claimant essentially argues that the violation of Labor Law § 241 (6) here was forcing him to work in unsafe conditions, i.e. failing to provide him with a coworker or a lift to help him erect the scaffolding despite his repeated requests to Mr. Clark, his foreman, for such assistance. He asserts that this equates with there having been no "supervision" by a designated person or, alternatively, that whatever oversight was provided did not comply with what the rule requires. He points to the testimony of his expert that two sets of hands, or a lift, were needed to erect scaffolding at the height claimant was working. He also points to the testimony of defendant's own witness (Mr. Farfaglia) who said he would assign a second person or a forklift to assist a worker when scaffolding reached 13 feet although it was the foreman's decision to make. Defendant counters that providing the supervision of a designated person simply requires, and was satisfied by, the assignment of a supervisor with the same kind of duties that Mr. Clark performed.
It is apparent to the court that claimant challenges what he believes to be negligent supervision at his job site, not that no designated supervisor was provided. To hold an owner liable for such general, "unsafe" conduct or conditions, as opposed to a derivative liability claim under Labor Law § 241 (6), claimant must establish that the owner actually did exercise supervisory authority or control over the activity ( see Comes v New York State Elec. Gas Corp., 82 NY2d 876.) In this case, no such claim — as might be asserted under Labor Law § 200 — was pleaded or proved.
Finally, there is an issue of proximate cause here. Although violation of a regulation promulgated under Labor Law § 241 (6) constitutes some evidence of negligence, claimant still must show the violation caused the accident. Claimant argues the "lack of supervision and direction in the method of constructing the scaffolding and the means" caused this accident to occur. At most, the testimony at trial established that some supervisors, i.e. claimant's expert, would have assigned a second man or used a lift to assist claimant, beginning at the second level; others, i.e. Mr. Farfaglia, would have provided such assistance when work began at the third level; and still others, i.e. Mr. Clark, recommended the way the work actually was done here. Neither party offered evidence of an industry standard, an OSHA regulation or a State rule which mandates that a designated person, as supervisor, ensure that the assistance of a second worker or a lift be provided. This being the case, assuming claimant were able to prove a designated supervisor was not on the job site in violation of the rule, the evidence he presented was insufficient to establish that anything different would have occurred had there been one. This is an insufficient nexus to establish proximate cause. ( See Rizzuto v L.A. Wenger Contr., supra; see also Ares v State of New York, 80 NY2d 959.)
In sum, absent greater specificity as to the meaning of the words "supervision of a designated person" of Industrial Code rule 23-5.1(h), the court finds defendant, in fact, did designate Foreman James Clark to be the person under whose supervision claimant was to erect the scaffolding, and that Mr. Clark functioned as such. The court also finds claimant understood Mr. Clark to be his supervisor, the man who saw to it that claimant was trained to do the job the way Baldwin wanted it done and the man to whom claimant says he continually complained because his arms were tired. The court further finds claimant has not been able to prove a sufficient nexus to satisfy the requirement of proximate cause between this accident and claimant's allegation that no one was designated as his supervisor in alleged violation of the rule.
Accordingly, the Clerk of the Court is directed to enter judgment dismissing the claim.
Melvin L. Schweitzer Judge of the Court of Claims