New York State Court of Claims

New York State Court of Claims
PHEARSDORF v. THE STATE OF NEW YORK, # 2017-031-512, Claim No. 121775

Synopsis

Claimant's fall from an elevated work station was the result of a statutory violation of Labor Law  240 (1) for which Defendant is 100% liable.

Case information

UID: 2017-031-512
Claimant(s): DONALD J. PHEARSDORF and DANIELLE PHEARSDORF
Claimant short name: PHEARSDORF
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 121775
Motion number(s):
Cross-motion number(s):
Judge: RENÉE FORGENSI MINARIK
Claimant's attorney: BRIAN CHAPIN YORK, ESQ.
Defendant's attorney: RUPP BAASE PFALZGRAF CUNNINGHAM LLC
BY: MATTHEW C. LENAHAN, ESQ.
Third-party defendant's attorney:
Signature date: March 20, 2018
City: Rochester
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Donald Phearsdorf(1) was injured on October 3, 2011 while working on a construction project on State Route 77 in Wyoming County, New York. Defendant contracted with L.C. Whitford Co., Inc. (Whitford) to rebuild the wing wall of a concrete box culvert, also known as a bridge. Whitford employed Claimant on the project. During construction, another Whitford employee instructed Claimant to drill holes in the bridge, near the top of the proposed new wing wall, to accommodate the rebar that would be "tied in" once the wing wall concrete was poured. Claimant alleges that Defendant failed to provide adequate safety devices, forcing him to climb the whalers and stiff backs, as well as the framework of the wall, causing Claimant to fall and injure his wrist.

Claimant alleges that Defendant violated Labor Law 200, 240 (1) and 241 (6). In addition, Claimant alleges common law negligence. I dismissed Claimant's Labor Law 241 (6) claim prior to trial. I tried this matter on November 28 and 29, 2016 and February 17, 2017. The parties submitted posttrial briefs and reply briefs.

FACTS

Claimant has been working in construction for 40 years, the last 13 years as a union laborer. Claimant described the construction project he was working on for his employer, Whitford, on October 3, 2011, as an emergency reconstruction of a collapsed wing wall. The box culvert, or bridge, over the creek had four wing walls, each running off one of the four corners of the bridge. This particular wing wall had collapsed into the creek and it ran along the southwest side of the bridge. Wing walls are used to keep the dirt around the bridge in place. The creek this bridge traverses runs east/west and is intersected by Route 77 which runs north/south (Exhibits B-3 through B-6 depict the collapsed wing wall).

Using Exhibits 1 and 2, Claimant explained how the frame for the new wing wall was built. This frame would hold the concrete to be poured to form the wing wall. The concrete wing wall would be 12 inches wide. Plywood sheets are placed 12 inches apart, one creek-side and one dirt-side. Exhibit 1, bottom photo, shows the creek-side, smooth wall, looking like steps moving from right to left at the top of the wood. Rods and bolts run through each side of the wood, across the 12-inch space, to hold the two plywood walls together. Dimensional lumber is then added to the outside of the plywood walls, creek-side and dirt-side. The plywood sheeting with the dimensional lumber creates the form.

Next, the carpenters place boards running vertically and flush to the back of the plywood called stiff backs. Stiff backs are wedged on each side of the bolts and held in place by large, square washers. Outside of the stiff backs, boards are placed horizontally, above and below the bolts, flush against the stiff backs, and held in place with a second large square washer. Then, the turnbuckle, which is wood used to level the forms to ensure that the concrete is even and to specifications, is anchored on the cement floor and placed at an angle against the form with an adjustable metal piece attached to the end of a bolt and rod.

Before the concrete can be poured, the forms must be attached to the bridge by drilling holes in the concrete bridge and through the forms. Bolts are then placed in the holes. Claimant was instructed to attach the form to the bridge. He testified that, at the time of his fall, the state of the form approximated what is depicted in Exhibit 8G, top photo, where the turnbuckles were present, but not the whalers and stiff backs. However, later in his testimony, he stated it actually looked more like Exhibit 2, where turnbuckles and stiff backs were installed, but not all the whalers. Claimant recalled that a carpenter had erected a homemade wooden scaffold, similar to what is shown in Exhibit 3, bottom photo, that ran horizontal along the lower portion of the form, permitting the men to slide a plank across the form so they could walk back and forth to do their work.

Claimant testified that he climbed up the form to a plank installed about six feet from the top of the form by a carpenter. He had already climbed up there once to "snap a chalk line." He climbed again and placed his drill there, but had to scale back down the wall to get his hammer. Using the whalers and forms as he had before, he scaled back up the wall. When he reached out and grabbed a stiff back, he fell because the stiff back had not been secured behind a whaler and bolt washer yet. When the stiff back came loose, he was about 10 feet above ground and fell backwards onto the concrete slab below. He also testified, upon further questioning from his attorney, that the location at which he began his ascent had no scaffolding planks nor whalers at the higher elevation. Claimant clarified that he actually started his ascent at the old, broken concrete at the base and scaled the forms (tr at 138-141).(2)

Jeffrey Burger was employed by Whitford as a machine operator and worked on the project with Claimant. Mr. Burger's main duty was to operate all the equipment needed on the site and he was, in fact, operating a skid loader in the creek, behind the creek side wall of the project, when Claimant fell. Mr. Burger testified that he would occasionally assist with fetching tools and materials to help. While I found Mr. Burger to be truthful in his testimony, he did not recall much and admitted inconsistencies in his pre-trial affidavit and deposition testimony. I find that Mr. Burger was on site the day Claimant fell, he did not witness the fall itself and only observed Claimant exiting the creek. Afterwards, Mr. Burger drove Claimant to the hospital, but did not talk to Claimant about how Claimant fell. He did return to the site after dropping Claimant at the hospital, either the same afternoon, or the following day. He testified that he "never" worked on the creek side of the wing wall, although he recalled helping pump water out of that side at one point in the project.

Mr. Burger has a memory of a grey extension ladder that had two, eight-rung sections and that a red, or orange, ladder that was longer than the grey one, was used on the wing wall job and another job about 15 minutes away. He testified that the photographs in Exhibit 8 are progress photographs for the first section of the wing wall and not the second section. Exhibit 2 is a depiction of the second part of the wing wall construction and that was the part of the job Claimant was working on when he fell. Of particular interest was his testimony that Claimant was the laborer on the site, that it was Claimant's job to retrieve the ladder if the carpenter needed it, and that Mr. Burger had observed the grey ladder chained to the guide rail on Route 77 at the project.

Jack Deagazio, Jr. was Whitford's Project Superintendent, responsible for layout and manpower and speaking with inspectors. While he has been employed by Whitford for 14 years, he has been working construction for 38 years. Whitford specializes in bridge construction and has a State contract to perform emergency construction "on call." When the wing wall collapsed, the State called Whitford to make the repairs. Mr. Deagazio recalled little about the day of Claimant's accident. He testified that he did not see Claimant fall because he was on the other side of the wall, half way up the embankment. Claimant found him and told him he was "climbing up, grabbed a board and fell." He stated that the wall looked as depicted in Exhibit A6 at the time of the accident and that the photograph was taken after Claimant's fall but the same day. Mr. Deagazio did not know the location of the red ladder on the morning of the fall. He testified that he ordered a 24-foot ladder for the job and that any equipment, including the ladder, would be secured by a chain to a tree on the west side of the job site. There also was a storage site an eighth of a mile up the road.

Mr. Deagazio completed a "Supervisor's Accident Investigation and Accident Report" on October 3, 2011, wherein he wrote Claimant was performing his required duties by climbing the form to the higher scaffold when the stiff back, held on by two nails, came off the form and Claimant fell. He then noted that using a ladder would have prevented this accident and, in the future, ladders would be in place every morning before work started (Exhibit 6).

Edward Smith testified that he was a carpenter on the job, sent there after the project started and work was falling behind schedule. He had 20 years experience, the last 5 as a union carpenter. He said that, generally, carpenters would build the forms and scaffolding and sometimes pour concrete. "A carpenter pretty much does almost all the work" (tr at 353). He was on the job one week prior to Claimant's fall. He testified there was a grey aluminum ladder on the site that he described as "garbage" (tr at 353) and unsafe. While he did not see Claimant fall, he did see where Claimant landed in the creek. Mr. Smith recalled that scaffolding was up, but that the top rail and mid-rails were not installed at the time Claimant fell. He knew this because he built the rails after Claimant fell on instruction from Mr. Deagazio. That was when Mr. Smith saw the red ladder for the first time, as well. Carpenters set it up against the wall and hammered in a toe kick at the bottom to prevent the ladder from kicking out into the creek.

Joseph Burkhard was the Onsite State Inspector for this project, among others. He recalls little about the project, Claimant or Claimant's fall. He executed Daily Work Reports from August 29, 2011 through November 4, 2011. He was unable to produce a report for October 3, 2011, the day of the fall, but he has a report stating he gave Claimant his Workers' Compensation forms on October 5, 2011.

The only expert to testify at this trial was Douglas Miller, a stipulated expert in construction safety. He explained ladder length, working ladder length and how to measure distances using ladder rungs, which proved helpful because much argument ensued during this trial while attempting to approximate heights at various sections of the form, using the ladders in the pictures. He clarified that the minimum overlap on any extension ladder is three feet, therefore a 16-foot extension ladder would have a 13-foot working extension. Code requires that a ladder extend at least three feet beyond the point of contact, which is the spot you wish to climb to, or if less than three feet beyond the point of contact, the ladder must be secured with a grab bar available. It was his opinion that the grey ladder could have been used to safely reach the upper temporary scaffold depicted in Exhibit 2. The grey ladder would not reach a platform 15 to 16 feet high. Mr. Miller also opined that the red ladder in Exhibit A7 would be safe to work from at the elevated height and could safely carry someone to the upper temporary scaffold.

Further, he addressed the safety of the grey ladder that had been referred to as "flimsy" and "garbage" by Claimant and Mr. Edwards. The American National Standards Institute (ANSI) sets specifications for ladders and the Occupational Safety and Health Administration requires ladders be ANSI approved. The lowest ANSI rating would be for light work and limited to use by a person weighing no more than 200 pounds. Despite that weight limitation, ANSI requires that these light use ladders be fabricated to fail only when over 800 pounds is applied.

Of particular note, on redirect examination, Mr. Miller commented on the method used by Claimant to ascend to his work station, stating: "[C]limbing forms is not specifically a prohibited activity" (tr at 563).

DECISION

Every fact witness I heard, or read testimony from, had difficulty recalling the events of October 3, 2011. Faulty memories and prior inconsistent statements make this a particularly difficult case to determine exactly what the construction site looked like the morning Claimant fell. However, having reviewed the testimony and evidence presented, I make the findings set forth below.

The construction site, specifically the form constructed to make the wing wall, had been substantially completed. Stiff backs had been nailed to the form from top to bottom between the bridge and highest point of the wing wall to the end and the lowest point of the wing wall. In addition, a temporary wooden scaffold had been installed less than six feet off the cement ground, complete with rails, plank and toe board. This temporary scaffold allowed the workers to build the second level of the form. Below the plank on the lower temporary scaffold, the first of the whalers were set. She-bolts were inserted all the way across the form, approximately 24 inches above that plank, then half way across (commencing at the bridge) another 24 inches above those, hitting about where the top rail of the temporary scaffolding is shown in Exhibit 2. In Exhibit 2, there appears to be one she-bolt above that line, another 24 inches higher. Turnbuckles were placed above the bottom whalers and approximately 24 inches above the top rail of the temporary scaffolding. The only ladder available at the site was the grey 16-foot extension ladder.

The morning of the fall, the lower temporary scaffolding plank had been placed at the end farthest away from the bridge, leaving the space closest to the bridge at the highest point of the wing wall without a platform to stand upon. Claimant's job that morning was to attach the form to the bridge by drilling holes through the form and bridge concrete to insert hardware to connect the two before concrete could be poured into the form. Claimant ascended the form by climbing up the dimensional lumber and stiff backs of the form to a temporary platform placed approximately 6 feet from the top of the form, or 15 to 16 feet above ground, where he placed the tools he needed to perform his task. He successfully completed the climb at least twice that morning before he fell. When Claimant discovered he needed an additional tool, he climbed back down, retrieved the tool and as he ascended with tool in hand, a stiff back he used to hoist himself up came loose from the form, causing Claimant to fall backwards and land in the creek below.

The lower temporary scaffold less than 6 feet off the ground was not high enough to safely get Claimant to the spot where he needed to be to perform the work. The grey ladder available at the work site would not have been of sufficient height to safely get Claimant to the spot where he needed to be to perform the work, either. Claimant admits that climbing the form was not the safest way to proceed. Had the upper temporary scaffold depicted in Exhibit 2 at the bridge end of the form and the ladder secured next to it been available, Claimant could have scaled the form safely to perform his work. Exhibit 2 was a photograph taken after Claimant fell.

Claimant presented no evidence that Defendant directed or controlled any aspect of the work site. Whitford employee Jack Deagazio directed the operations and instructed Claimant and the other employees on the site as to what work would be performed each day and he was responsible for procuring the equipment and materials necessary. Claimant admitted that he knew Mr. Deagazio would give him any equipment and/or materials Claimant requested, however, he did not request a ladder and/or higher temporary scaffolding that day.

As discussed above, the Labor Law 241 (6) cause of action was previously dismissed. I also find that Claimant's common law negligence and Labor Law 200 cause of action must be dismissed. Labor Law 200 is a codification of the common law duty of an owner or contractor to provide workers with a reasonably safe place to work (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343 [1998]; Allen v Cloutier Constr. Corp., 44 NY2d 290 [1978]). Even though Defendant had employees regularly on the site, general supervisory authority at the work site for purposes of overseeing the progress of the work is insufficient to impose liability (Fisher v WNY Bus Parts, Inc., 12 AD3d 1138 [4th Dept 2004]). The evidence demonstrates that Defendant did not control or direct Claimant's work. Where the alleged defect or dangerous condition arises from a contractor's methods and a defendant exercises no supervisory control over the operation, no liability under the common law or Labor Law 200 attaches (Comes v New York State Elec. & Gas Corp., 82 NY2d 876 [1993]; Lombardi v Stout, 80 NY2d 290 [1992]).

This leaves only Claimant's 240 (1) cause of action. The Scaffolding Law, Labor Law 240 (1), states:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be 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 protection afforded by this statute is absolute and non-delegable, and applies when there is a "significant risk inherent in the particular task because of the relative elevation at which the task must be performed" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]).

As the Rocovich court also stated:

"The legislative purpose behind this enactment is to protect workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs on the owner and general contractor instead of on workers, who are scarcely in a position to protect themselves from accident" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]) (internal quotation marks and citations omitted).

Initially, I note that there is no dispute between the parties that Claimant was performing work at an elevated location and that the statute is applicable in this matter (see generally Joblon v Solow, 91 NY2d 457 [1998]).

I find that the failure to provide Claimant with a ladder or proper scaffold to ascend to Claimant's work area was a violation of the statute that proximately caused Claimant's accident. Here, Defendant asserts that the statute has not been violated because adequate safety devices were available. However, as stated by the Appellate Division, Fourth Department, in Mazurett v Rochester City School Dist. (88 AD3d 1304):

"We reject defendant's contention that plaintiff was a recalcitrant worker whose own actions were the sole proximate cause of the accident. Although defendant submitted evidence that plaintiff was instructed to use a more stable scaffold and to use a ladder to ascend the scaffold, defendant failed to submit any evidence that plaintiff refused to use a particular scaffold or ladder that was provided to him. 'The mere presence of [other safety devices] somewhere at the work [ ] site' does not satisfy defendant's duty to provide appropriate safety devices." (Citations omitted).

Claimant's failure to ask for a ladder does not demonstrate that Claimant is the sole cause of his accident. Defendant failed to demonstrate that Claimant knew he was expected to use a ladder as opposed to the form, but chose not to and, therefore, he was not the sole proximate cause of his accident (see Kosavick v Tishman Constr. Corp. of N.Y., 50 AD3d 287 [1st Dept 2008]).

Further, the safety device Claimant used to ascend to his work area was the form itself, and its falling apart as he climbed is sufficient to demonstrate that it did not meet 240 (1)'s requirement that it be "so constructed, placed and operated as to give proper protection" to Claimant (Bernard v Town of Lysander, 124 AD3d 1289 [4th Dept 2015]; Mazurett v Rochester City School Dist., 88 AD3d 1304 [4th Dept 2011]; Dean v City of Utica, 75 AD3d 1130 [4th Dept 2010]).

It was Defendant's obligation to provide Claimant with the appropriate safety devices necessary to perform his task safely. This was not done. Accordingly, I find that Claimant has demonstrated that Defendant violated 240 (1) of the Labor Law and that this violation was the cause of his fall and resulting injuries. Defendant is therefore 100% liable for the damages Claimant sustained in his fall. A trial shall be set as soon as practicable on the issue of Claimant's damages.

All other motions on which the Court may have previously reserved decision or which were not previously determined, are hereby denied.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

March 20, 2018

Rochester, New York

RENÉE FORGENSI MINARIK

Judge of the Court of Claims


1. As Claimant Danielle Phearsdorf's claims are entirely derivative in nature, all references to "Claimant" within this decision refer solely to Donald Phearsdorf.

2. References to the trial transcript are indicated herein (tr).