FOTINOS v. THE STATE OF NEW YORK, #2002-019-562, Claim No. 102030, Motion Nos. M-65416, CM-65464
Claimant's motion for partial summary judgment based upon Labor Law 240 (1) cause of action is denied; State's cross-motion for summary judgment based upon recalcitrant worker is also denied.
Claimant short name:
Footnote (claimant name) :
THE STATE OF NEW YORK
Footnote (defendant name) :
FERRIS D. LEBOUS
LAW OFFICES OF LAWRENCE P. BIONDI
BY: Lawrence P. Biondi, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Coughlin & Gerhart, LLP
James P. O’Brien, Esq., of counsel
Third-party defendant’s attorney:
September 3, 2002
See also (multicaptioned case)
Claimant moves for summary judgment on the issue of liability based upon Labor Law 240 (1). The State of New York (hereinafter "State") opposes the motion and cross-moves for summary judgment based upon the recalcitrant worker defense.
The Court has considered the following papers in connection with these motions:
1. Claim, filed March 1, 2000.
2. Kouros v State of New York, Hanifin, J., Claim No. 98994, Motion Nos. M-60503 & CM-60664, filed June 22, 2000.
3. Notice of Motion No. M-65416, dated June 21, 2002, and filed June 26, 2002.
4. Affirmation of Lawrence P. Biondi, Esq., in support of motion, dated June 21, 2002, with attached exhibits.
5. Notice of Cross-Motion No. CM-65464, dated July 9, 2002, and filed July 10, 2002.
6. Affidavit of James P. O’Brien, Esq., in support of cross-motion and in opposition to motion, sworn to July 9, 2002, with attached exhibits.
8. Affidavit of James P. O’Brien, Esq., in support of cross-motion and in opposition to motion, sworn to July 15, 2002, and filed July 18, 2002.
9. Deposition transcript of Joseph Fiorelli, taken May 3, 1999.
This Claim arose on June 23, 1998 at a State owned bridge where State Route 17 and Interstate 81 span the Chenango River in Binghamton, New York. Claimant was in the process of assembling a suspended scaffold under the bridge when the scaffold collapsed, dropping him to the river approximately 50 feet below. According to Claimant's papers, "[t]he scaffold was assembled by affixing 4' by 24' wood platforms on top of steel cables spanning the length of the bridge. Claimant was standing in the middle of the suspended scaffold waiting to hand wood to his co-workers to build the remaining scaffold. This pile of wood was also in the middle of the scaffold. The width of the scaffold was approximately 24 feet." (Affirmation of Lawrence P. Biondi, Esq. dated June 21, 2002, ¶ 3). Claimant was further than six feet from the edge of the scaffold at the time of the accident. (Claimant's Exhibit 5, p 36).
This Claim was served on the Attorney General's office on about March 1, 2000 by personal service and filed with the Clerk of the Court on that same date.1 The Claim alleges violations of Labor Law 240 (1). Labor Law 240 (1) requires that safety devices be "constructed, placed and operated as to give proper protection" to a worker. The statute has been interpreted to impose absolute liability for a breach thereof which has proximately caused an injury. (Rocovich v Consolidated Edison Co., 78 NY2d 509). Negligence, if any, of the injured worker is of no consequence. (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 1054).
By way of background, this scaffold collapse also injured two of Claimant's co-workers, James Kouros and Joseph Fiorelli. Mr. Kouros was granted summary judgment on his Labor Law 240 (1) cause of action which was affirmed by the Third Department. (Kouros v State of New York, 288 AD2d 566, affg Ct Cl, June 22, 2000, Hanifin, J., Claim No. 98994, Motion Nos. M-60503 & CM-60664). Simultaneously with the filing of this instant Decision and Order, this Court has granted summary judgment to Mr. Fiorelli. (Fiorelli v State of New York, Ct Cl, September __, 2002, Lebous, J., Claim No. 98669, Motion Nos. M-65458, Cross-Motion No. CM-65465). In both Kouros and Fiorelli, the workers had been wearing their safety harnesses and were attached to safety lines while performing their work, but started to leave for lunch and were in the process of traversing a pier which necessitated the unhooking of a lanyard from one safety line to another at the moment of the collapse.2 The facts involving Mr. Fotinos are notably different. As such, the facts presented here not only warrant detailed analysis in and of themselves, but also in comparison to the facts giving rise to the Kouros decision. At the time of the collapse, Mr. Fotinos was in the middle of the scaffold still in the process of working by preparing to hand wood to another worker to be used in constructing the next portion of the scaffold. (Claimant's Exhibit 5, p 27). Most importantly, however, Claimant had not unhooked his safety harness in order to traverse a pier as did Mr. Kouros and Mr. Fiorelli, but acknowledged in his deposition that he had never hooked his safety harness and lanyards to a safety line while performing work in the first instance. The State has conceded that at the time of the collapse Claimant was wearing his full body safety harness with two lanyards attached,3 but emphasizes that Claimant had not connected those lanyards to the available safety lines. (Affidavit of James P. O'Brien, Esq. sworn to July 9, 2002, ¶ 25).
Claimant's purported reasons for failing to attach his safety harness and lanyards to a safety line while working are the parties primary focus on these motions. For its part, the State contends that it has established the applicability of the recalcitrant worker defense or, at the least, has raised questions of fact relative to Claimant's failure to attach to safety lines, thereby warranting denial of Claimant's summary judgment motion.
The first reason described by Claimant for failing to attach his safety harness and lanyards to a static safety line is the alleged physical impossibility of a worker to do so when positioned in the middle of the platform. Needless to say that these parties have opposing views of the possibility of a worker connecting to a safety line while positioned in the middle of the platform. Claimant alleges in his papers that it was physically impossible to tie-off while in the middle of the scaffold, because of the width of the scaffold (24 feet) as compared to the length of the lanyards (five feet each).4(Claimant's Exhibit 5, p 29). The State argues that it was physically possible to do so meaning that Claimant's decision not to tie-off must be viewed as a deliberate refusal to do so, thereby barring his recovery under the recalcitrant worker defense.5 However, it is well-settled that the function of the court on a summary judgment motion is not to resolve material issues of fact, but instead merely to ascertain whether any such issues exist. (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). If such issues exist, the motion for summary judgment must be denied. In this Court's view, the parties have clearly raised a question of fact relative to the physical possibility of a worker, wearing a safety harness with lanyards, connecting to safety lines while positioned in the middle of the platform. That having been said, however, the Court notes that a similar issue was raised in Kouros and did not prevent an award of summary judgment to claimant in that case. As such, in this Court's view, a further comparison of the facts of these cases as well as the Third Department's treatment thereof is warranted.
In Kouros, and for that matter Fiorelli as well, the State attempted to raise questions of fact regarding the possibility of staying connected to a safety line while traversing a pier, whereas here the State argues questions of fact exist about attaching to a safety line while performing work positioned in the middle of the platform. In Kouros, the Third Department identified this issue of fact, but determined that even if the disputed question of fact were resolved against Claimant (e.g., that staying connected to a safety line while traversing a pier was indeed possible), then:
[h]is failure to have at least one lanyard attached to the static line at all time establishes only that he was negligent in detaching both lanyards and in failing to reattach to the safety line after crossing the pier and prior to the collapse of the scaffold. A worker's contributory negligence, however, is not a defense to a Labor Law § 240 (1) claim [citations omitted].
(Kouros, 288 AD2d at 567).
Claimant here urges this Court to follow the same logic, arguing that even if Mr. Fotinos "[w]as able to have a safety line secured at all times, [a]ccording the [T]hird Department this merely establishes that he was negligent." (Affirmation of Lawrence P. Biondi, ¶ 8). In this Court's view, however, the fact that Mr. Kouros had demonstrated his prior compliance with the safety rule by attaching to a safety line while performing work was an integral part of the Kouros determination. The same cannot be said of Mr. Fotinos. Rather, Mr. Fotinos had admitted that he did not attach to a safety line while performing his work (setting aside for a moment his reasons for not doing so). For this reason, this Court cannot rely, as could the Third Department in Kouros, on Claimant's act of wearing a safety harness and attaching to the available safety lines while performing work to refute the recalcitrant worker defense as a matter of law. More specifically, the Third Department stated "[w]e conclude that where the evidence shows that claimant was wearing the body harness and was attached to the safety line while performing his work, defendants have failed to establish a deliberate refusal to use the equipment." (Kouros, 288 AD2d at 567; emphasis added). As such, based upon the foregoing, this Court finds that questions of fact exist relative to Mr. Fotinos' ability to attach his safety harness and lanyards to safety lines while he was working in the middle of the platform and the applicability of the recalcitrant worker defense.
The second issue in contention relates to the substance of the official tie-off6 rule and Claimant's knowledge and/or understanding thereof. Claimant described his understanding of the rule as follows: "[t]he rule was that within six feet of the edge you had to wear one [a safety harness]. But in the middle there was no rule, they told us we didn't need to wear one." (Claimant's Exhibit 5, p 30). In short, Claimant's version of the rule was that a worker was only required to tie-off while working within six feet from the scaffold's edge. Claimant indicated that this rule was explained to him by his boss, identified as "Nick". (Id). Claimant's counsel also raised the issue of whether Claimant's hearing disability adversely impacted his ability to understand the rule or instructions relative thereto.7 The State contends that the substantive tie-off rule required every worker to tie-off while working at a height over six feet regardless of proximity to the platform's edge. The State further argues that the substance of the tie-off rule and this Claimant's understanding thereof were determined in Kouros and cannot now be disputed.8 The State also relies upon the proof submitted in connection with Kouros including, inter alia, the testimony from Mr. Kouros and Mr. Fiorelli, the Affidavit of David Demick, the deposition testimony of Michael Ryan, and Claimant's documented attendance at a 1997 safety meeting.
In this Court's view, the explanation of the tie-off rule and the references to "co-workers" contained in Kouros should not automatically be applied to Claimant in this case in light of Claimant's unrebutted contention that his boss, identified only as "Nick", explained a different rule to him. (Claimant's Exhibit 5, p 30). The State has not submitted anything from Claimant's boss in contradiction thereof. Moreover, there is no proof in evidentiary form that this or any safety rule was communicated to Claimant in a manner that he could understand given his hearing disability. As such, even if the substance of the official tie-off rule is as described by the State, there remains a question of fact as to Claimant's understanding of that rule.9 In other words, how can this Court find from this record that Claimant deliberately refused to use a safety device when he avers that he received different instructions as to the rule for using those devices. In his deposition, Claimant is consistent in his description of the tie-off rule as he understood it and his actions were consistent with that understanding. Whether Claimant's understanding - or misunderstanding as the case may be - of the safety rule was due to improper instructions, his hearing disability, or otherwise, it certainly creates questions of fact on whether his refusal to hook up was a deliberate refusal to use safety devices available, visible and in place at his worksite.10 As such, this Court finds additional questions of fact exist relative to the substance of the official tie-off rule, Claimant's understanding of that rule, and the role, if any, of Claimant's hearing disability in relation thereto.
In sum, upon reviewing these opposing motions for summary judgment, accepting the non-moving party's evidence as true, and granting them every favorable inference, this Court finds questions of fact as noted above, which in turn warrants denial of the party's respective motions for summary judgment. (Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046, 1047).
Claimant also seeks costs, sanctions and attorney's fees against the State for moving to dismiss his claim. Claimant has not set forth any facts which would warrant the imposition of such relief and, as such, Claimant's request is denied. (Court of Claims Act 27; 22 NYCRR 130 1.1).
Based upon the foregoing, Claimant's motion for summary judgment, Motion No. M-65416, is DENIED, and the State's cross-motion for summary judgment, Cross-Motion No. CM-65464 is also DENIED.
The Court will contact the attorneys for purposes of scheduling a conference to discuss a schedule for the completion of outstanding discovery, if any, and the scheduling of a liability trial.
September 3, 2002
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court of Claims
1Claimant was granted permission to file a late claim. (Fotinos v State of New York, Ct Cl, February 18, 2000, Hanifin, J., Claim No. None, Motion No. M-60057).
2In Kouros, the Appellate Division recited the following facts:
Claimant was provided with, and was wearing, a body harness to which two five-foot lanyards were attached at the waist, and the lanyards were connected to a safety line which was available and in place....Because of the presence of the pier, however, the safety line was not continuous from one section of the scaffold to the other, necessitating unhooking on one side of the pier and rehooking on the other....
Claimant's undisputed testimony is that he unhooked the lanyards from the safety line at the pier, crossed the pier and stepped on the scaffold which collapsed before he could reattach his lanyards....
(Kouros, 288 AD2d at 566-567).
3Were it not for this concession, this Court may well have found an additional question of fact on this issue of whether Claimant was actually wearing his safety harness at the time of the collapse. There are what appear to be inconsistent statements contained in Claimant's deposition on this subject including the following:
!"Q: Were you provided with a safety harness or safety belt? A: No"
(Claimant's Exhibit 5, p 28, lines 14-16);
!"Q: Did you ever wear a safety harness on this particular job? A: Yes. But if I had to walk in the middle I had to take it off." (Claimant's Exhibit 5, p 29, lines 13-16);
!"Q: At any time on June 23, '98 did you have the safety harness on? A: No." (Claimant's Exhibit 5, p 29, lines 17-19);
!"Q: Were you provided with a safety harness for this particular job? A: Yes, it was required.
Q: At the time you got hurt, where was your safety harness? A: My safety harness was on me but it wasn't attached to the sides.
Q: Had you been attached at all before your accident at any time...on that day. A: No" (Claimant's Exhibit 5, p34, lines10-24).
4Claimant's proof on this issue is limited to his own deposition testimony as follows:
A: The problem is that there was a limited amount of space. So in order to use the safety harness you had to be close to the edge. If you were walking in the middle it was impossible to have a safety harness on.
Q: Why was it impossible?
A: Because the line that was attached to the safety harness was not long enough.
Q: Did you ever wear a safety harness on this particular job?
A: Yes. But if I had to walk in the middle I had to take it off.
5The State relies on proof submitted in connection with the Kouros case, including Mr. Fiorelli's deposition testimony and Mr. Demick and Mr. Ryan's statements that tying-off was physically possible. The State argues that Mr. Fiorelli's statement is particularly helpful because he indicated that Mr. Fotinos was standing next to him. (Transcript of Joseph Fiorelli, p 32). It is not clear to this Court, however, whether Mr. Fiorelli was discussing the ability to attach to safety lines solely in relation to traversing the pier (which he was attempting) or while performing work on the platform (Claimant's location). Moreover, this Court views the remaining proof relied upon by the State as being focused on the physical possibility of attaching to safety lines while traversing the pier, which is not necessarily conclusive on the issue of the ability to attach to safety lines while working on the platform. Finally, State's counsel also asserts that the various photographs submitted depict plenty of places to which a worker could attach. The Court finds counsel's statements on this issue to be speculative and conclusory.
6The phrase "tie-off" relates to connecting a worker's safety harness and lanyards to static safety lines.
7Claimant has been deaf since he was an infant. Claimant's deposition testimony was taken with the assistance of a sign interpreter during which he described his own ability to read and write as "just basic" and indicated he was unable to read lips. (Claimant's Exhibit 5, pp 9-10).
8The Third Department stated in Kouros that "Claimant was to connect the lanyards to the safety line at any time he was more than six feet above ground level; instructions to this effect were given to claimant and his co-workers, and claimant understood these safety instructions, even advising younger workers to observe them." (Kouros, 288 AD2d at 566).
9Claimant's signature on the 1997 safety meeting attendance sheet raises questions. (State's Exhibit 7). For instance, that sheet contains a handwritten note with a legibility level that is poor for even the strongest of readers. Additionally, in what manner was the rule communicated to Claimant, keeping in mind that he did not read lips and described his own ability to read and write as "just basic". (Claimant's Exhibit 5, pp 9-10).
10Although neither party has specifically addressed the role of a worker's state of mind or subjective understanding of a safety rule in relation to a finding of a deliberate refusal under a recalcitrant worker analysis, it certainly appears that a worker's subjective understanding of a rule is necessarily incorporated in any finding of a deliberate refusal to follow safety rules.