Claimant, an asbestos removal worker, was injured in a fall at the work site on the SUNY Purchase campus while pulling a heavy load of waste bags. The claim alleged claimant slipped on water and debris on the floor of the waste decontamination area. After a two-day trial, the court found defendant not liable for negligence, violations of Labor Law §§ 200, 240 and 241(6), and violation of the State Industrial Code, 12 NYCRR §§ 23-1.7 (d) and (e), and 12 NYCRR § 23-1.30 and dismissed the claim.
|Claimant(s):||ZIVKO KATIC AND ZORA KATIC|
|Claimant short name:||KATIC|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect the only proper defendant.|
|Judge:||STEPHEN J. MIGNANO|
|Claimant's attorney:||SACKS AND SACKS, LLP
By: Edward W. Ford, Esq.
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL
By: Dian Kerr McCullough, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 1, 2018|
|See also (multicaptioned case)|
On October 4, 2013, claimant Zivko Katic was injured at the site of an asbestos removal project in the Humanities Building on the State University of New York ("SUNY") Purchase campus. The claim by Mr. Katic and his wife, Zora, seeks damages against the State of New York for negligence, violations of Labor Law §§ 200, 240 and 241(6), and violation of the State Industrial Code.(2)
A trial on liability was held before this court on November 14 and 15, 2017. Claimant testified on his own behalf, and presented Vojin Milosevic as a fact witness.(3) Claimant did not introduce any exhibits. Defendant presented the following witnesses: Robert Stajic, Sayim Malik and Amarr Soler. The court admitted into evidence on stipulation defendant's Exhibits A-B, E, G, I and K-O. The parties stipulated that SUNY Purchase owns the Humanities Building, where the asbestos was being removed during a renovation. At trial, the court admitted defendant's Exhibit C over claimants' objection.
On direct and cross-examination, claimant testified that on October 4, 2013, he was doing demolition and asbestos removal in the Humanities Building at SUNY Purchase for the asbestos removal company Niram. He had been trained in asbestos removal, and had been licensed in New Jersey as an asbestos worker (11/4/17 T: 46-54; Exh. N).(4) The asbestos removal area was covered in plastic to ensure that no asbestos particles were released. There were several rooms specially constructed for the work. They entered through the "personal decon," a clean room where they changed into the special single-use work suits, then went through a series of rooms to the "dirty room" where they retrieved their work boots left from the previous day, and don their masks. The next room was the working or abatement area (11/14/17 T: 54-55).
At approximately 4:30 or 5:00 p.m., claimant and coworker Vojin Milosevic were placing asbestos into bags in the abatement area. The process entailed putting the asbestos into a white bag, adding some water from a hose to keep the material humid, putting tape around it, and putting the white bag into a black bag, which was then taped and labeled. The bags would then be taken through the "waste decon" area, which consisted of three small identical rooms separated from each other and the abatement area by plastic flaps. The last room in the waste decon area was where the bags of asbestos were sent after the bagging/washing/bagging process. The only light came from outside so he could "barely see." At some point, they ran out of white bags and his foreman, Solvo Orukalo, instructed him to "go through waste decon" and get outside to retrieve more waste bags from the pallet. Outside meant outside the waste decon area, not outside the building (11/14/17 T: 49).
Claimant wiped off his shoes with a cloth when he reached the waste decon area, then went through all four sets of flaps to get the bags. The bags were on a pallet outside the last room of the waste decon area and too heavy for him to lift. They weighed about 100 pounds. He dragged them while walking backwards, and when he was opening the flaps between the abatement area and the first room in the waste decon area, his left leg slipped and he dropped the bags, fell backward and hit his head. After he fell, his head was in the abatement area and the rest of his body was in the first waste decon room. While lying on the floor, he turned and saw dirt and water that he had not seen when he went to get the bags. He could not get up and was in pain (11/14/17 T: 60-65). The waste decon area "has to be clean all the time, and if it's possible, it has to be dry" (id. at 66).
Mr. Milosevic helped claimant get up and out of his work suit. Claimant reported the accident to his supervisor, Robert Stajic, after exiting the clean room. He could not remember what he said about how the accident happened. He asked for medical assistance and Mr. Stajic told him to go home and they would see how he felt after the weekend. He did not report the accident to anyone who worked for the State of New York (11/14/17 T: 67-74).
On other asbestos jobs, the first room in the waste decon area was also called the "dirty room" and that was where workers took the bags, doubled them, then put them into a final clean bag. There was sometimes a hose or water in the second room and the bags were sometimes wet. On the SUNY Purchase project, the bags were hosed down then wiped down. The foreman decided how often the waste decon area was cleaned. Only Niram personnel told him what to do on the project, supervised his work, and gave him his assignments. No one from SUNY Purchase ever told him how to perform his work (11/14/17 T: 74-81). He admitted that he was not looking where he was going when he was dragging the bags, and on the day of the accident they were adding water to the bags 20 to 30 feet away from the waste decon area (id. at 86, 97). He admitted he filed a claim with the Workers' Compensation Board ("WCB") and he signed the form (id. at 90-95; Exhs. C, N at 16).(5)
On redirect examination, claimant testified that he could not read anything on the WCB claim form, and he does not know who filled it in. He has a worker's compensation attorney, and he told the attorney's employee how the accident happened, talking mostly with his hands (id. at 99-101).(6)
During his deposition on December 29, 2015, claimant gave the following testimony about how he was injured:
"I was walking backwards, and I was moving through waste decon, and I walked through the waste decon looking occasionally where I am going to pass, where I passed, and when I arrived to the third room to the third area, my left leg slided down, I dropped the bags, and I fell on the bag and hit my head on the floor. I looked on the side. I tried to get up. I saw a little bit of water, in one part I saw water in that room on the plastic, a little bit of dirt, and the dirt that was on the floor which usually always falls from the bags or is brought into the area on the shoes [. . .] I slided, I slipped."
(Exh. O, 24-25).
On direct and cross-examination, Vojin Milosevic testified that he obtained his asbestos license in 2007. At the SUNY Purchase job, everything had to be clean when they finished their job. He and claimant were working the second shift on the day of the accident, starting at 1:00 p.m. They had to collect the material and put it in certain bags, then the bags were taken to the waste decon, doubled, then taken out. He was trained to exit the asbestos abatement area using the personal decon area, and that workers are not to go through the waste decon area to leave the abatement area. After claimant's accident, Mr. Milosevic helped him up and to the personal decon. Claimant said he tripped and fell down while trying to take the bags (11/14/17 T: 13-18, 22-23, 27-28).
Mr. Milosevic never got work assignments from a State employee, and the workers never had contact with anyone other than the foreman and supervisor, both of whom worked for Niram. Only people with licenses were allowed to be in the asbestos work area. Workers went through the waste decon area to get bags or material in order to speed up the job. He would go wearing full protective gear, but he did not exit beyond the clean room to get bags. Someone would throw the bags into the clean room. Someone from the inside could radio someone on the outside to pass empty bags through the flaps into the clean room of the waste decon area (11/14/17 T: 29-35, 39). He explained how they put the asbestos waste in bags in the abatement area, then bring them to the first room in the waste decon area, where they doubled the bags, put tape around them and a label. There was water in the middle room of the waste decon area and the bags were washed if they were dirty. Everyone, including claimant, had been through this process since it was done every day. The decons were cleaned daily, and when necessary, as directed by the foreman. The supervisor worked outside the abatement area (id. at 35-39).
At the close of claimants' case, defendant made a motion to dismiss the claim for failure to present prima facie evidence of negligence. Defendant argued there was no evidence that the State of New York had authority to control the asbestos removal work. The court reserved on the motion.
Sayim Malik, a SUNY Purchase employee, testified that as SUNY Purchase's Capital Program Manager, he oversaw consultants and contractors hired to design and implement projects. The State University Construction Fund ("SUCF") administered the construction project at the Humanities Building in 2013. SUCF hired Niram. No one at SUNY Purchase had input into hiring for the project, how the work was performed, or instructed the workers how to perform their work. He monitored the progress of projects, coordinating with the construction manager on campus needs. This involved walking the site, but only after asbestos removal was completed. No one at SUNY Purchase had access to the abatement area until the asbestos removal was completed. He did not know about claimant's accident until the Attorney General's Office contacted him (11/14/17 T: 181-188, 192, 220).
Robert Stajic was subpoenaed to testify at trial. On direct and cross-examination he testified that he supervised Niram's project at SUNY Purchase. No one from the State of New York told the workers what to do on a daily basis. On October 4, 2013, claimant was working the 3:00 p.m. to 11:30 p.m. shift. There was no asbestos removal shift before that, so the decons had last been cleaned the night before. At about 4:00 or 4:30 p.m., claimant told him his back went out and hurt so he could not finish his shift. He did not say anything about an accident or being injured, and did not request medical assistance. Mr. Stajic told him he was on the schedule on Monday and claimant said he would see how he felt (11/14/17 T: 117-122, 133, 152-153).
Mr. Stajic described the asbestos waste removal process. Asbestos waste is bagged then put in the "dirty room," the first of three rooms in the waste decon area, where the bags are doubled. The bags are moved to the "shower room," the second room where they are washed and wiped off. There is a drain pan in that room, and water does accumulate in both decons areas. There should not be debris or puddled water on the ground, but sometimes there is. There had not yet been any showering that day before claimant complained about his back. Natural lighting came through the transparent flaps separating the waste decon rooms. If light was needed, they would install it. He is required to walk-through the asbestos abatement area twice daily. It was early in the shift when claimant complained about his back, the workers were still bagging and they were not yet doing any "waste out" (removing bags), so the plastic on the ground would have been dry (11/14/17 T: 124-128, 133-136, 142-145, 151-152).
Under Code Rule 56, workers are not to exit through the waste decon area. Extra bags are stored outside the waste decon area. If needed, someone inside the abatement area would call on a walkie-talkie, someone would place the bags in the "clean room," the third room, and workers would then come through from the inside to take the bags. Anyone placing the bags in the clean room from the outside cannot go further into the waste decon area because it is considered a contaminated barrier. No foreman told him about instructing claimant to exit through the waste decon area to get bags. If Mr. Stajic had been told, he would have been required to fire or give a warning to claimant (11/14/17 T: 129-131, 134-135, 145).
On direct and cross-examination, Amarr Soler testified that he was employed by Creative Environmental Solutions, an environmental consulting company, and was hired by the general contractor (Niram) as the project monitor for the project at SUNY Purchase. He oversaw the asbestos abatement (11/15/17 T: 241-243). The waste decon area had three chambers, separated by weighted air flaps, and was "basically used to wash out all the bags that you are accumulating" (id. at 244). There were string lights and rags and extra shirts to soak up any spilled water. He had to check the waste decon area at the beginning of the shift to make sure there was no dust or debris and everything was in working order. He checked the abatement area four to seven times a shift to make sure there was no accumulation of asbestos, and he entered both the personal and the waste decon area. If he were to see dirt or debris, he would tell the supervisor and have him clean it up or change the plastic. If he found out a worker exited the area through the waste decon, he would have reported it to Robert Stajic and the worker could have been kicked off the job (id. at 244-251, 270-271, 275, 280).
As a threshold matter, claimants renew their objection, on grounds of hearsay and relevance, to the admissibility of defendant's Exhibit C, claimant's Workers' Compensation Board Claim Form (C-3). The document is a certified record of the WCB. Pursuant to CPLR §§ 2307 and 4518 (c), certified records of a department of the state, including the WCB, are admissible in evidence and prima facie evidence of the facts contained therein. Claimants' additional argument regarding the weight to be afforded the document will be addressed in due course.
Labor Law § 200 is a codification of the common law duty of a landowner to provide and maintain a safe place to work. Where the claim arises from work being performed on the land, to establish the necessary duty there must be evidence that the owner controlled or supervised the manner in which the underlying work was performed or had notice of a dangerous condition or defect (see Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 435  [NYCTA and MTA met burdens to show they did not supervise or control plaintiff's work removing asbestos, or that neither of them had notice of the lack of a guardrail around open manhole]; see also Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 ; Costa v Sterling Equip. Inc., 123 AD3d 649, 650 [2d Dept 2014]). General supervisory authority is not sufficient (see Alexandre v City of New York, 300 AD2d 263, 264 [2d Dept 2002] [reversing lower court's denial of summary judgment for City as to claims under Labor Law § 200 and common law negligence where City exercised only general supervisory authority at work site for purpose of overseeing progress of work, and inspecting work product]).
Claimants base their claim for negligence and violation of Labor Law § 200 on the facts that the State of New York owns the Humanities Building where the asbestos abatement project was being done, and that the SUCF administered the project and contracted with Niram, the contractor. SUCF is a statutory agent for SUNY that funds, lets, and manages construction projects on its behalf (see Stein v State of New York, 51 Misc 3d 1210(A) [Ct Cl 2016]). It is not enough just to establish that SUCF contracted with the contractors responsible for designing and implementing the project. To meet their burden, claimants had to submit evidence that State personnel supervised or controlled the asbestos removal workers and the manner or method of their work. Claimants failed to meet this burden.
Claimant testified that only Niram personnel told him what to do on the project, supervised his work, and gave him his assignments, and no one from SUNY Purchase ever told him how to perform his work. Claimants' only other witness, Niram employee Vojin Milosevic, testified that he never got work assignments from a State employee, the workers only had contact with Niram employees, and only people with licenses for asbestos removal were allowed to be in the asbestos work area. Defendant's witnesses established that no one from the State told the workers what to do on a daily basis, the project manager was hired by Niram, and the State had no input into Niram's hiring decisions. There is no evidence that the State had "the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition" (Dos Santos v STV Engrs., Inc., 8 AD3d 223, 224-225 [2d Dept 2004], appeal denied 4 NY3d 702  [no evidence State's inspectors had supervisory authority over workers]).
The "dangerous condition" claimant alleges caused him to slip - debris and water on the floor - was also to be expected in the process of asbestos removal. The evidence established that asbestos had to be kept moist, and the bags were washed in the second waste decon room daily.
The common-law duty of an " 'employer . . . to provide his employees with a safe place to work
[. . .] does not extend to hazards which are part of or inherent in the very work' being performed" (Vega v Restani Constr. Corp., 18 NY3d 499, 506-507 , quoting Gasper v Ford Motor Co., 13 NY2d 104, 110 ; see Annicaro v Corporate Suites, Inc., 98 AD3d 542, 544 [2d Dept 2012] [slipping on debris is hazard inherent in job entailing picking up debris]; see also Imtanios v Goldman Sachs, 44 AD3d 383, 385-386 [1st Dept 2007], appeal dismissed 9 NY3d 1028  [slipping on loose computer part inherent in porter's work emptying trash in offices]).
Claimants also failed to submit prima facie evidence that the State had notice of a dangerous condition, or that one proximately caused his injuries. Claimants' case rises and falls on claimant's testimony that he saw debris and water on the floor after he slipped. Assuming claimant's testimony, about seeing water and debris on the floor, to be credible (which is less than certain), it does not establish that the condition rose to the level of being dangerous. Even if it were, State employees had no access to the asbestos abatement area so they would not have observed such a condition, and there was no evidence they were apprised of one.
As for proximate cause, suffice it to say that claimant could not even say for sure that he slipped on water and debris, and there was evidence that he did not slip at all. According to his supervisor, he said his back "went out" and he did not mention slipping.(7) The court also notes that the description provided on his WCB claim form in response to the question "How did the injury/illness happen?" is, "Pulling bags felt sharp pain on my back" (Exh. C). Even giving the WCB claim form less than full weight, in light of the language difficulty, the description contains more detail than claimant could have conveyed to his lawyer or the assistant by just motioning with his hands, and it is consistent with the testimony by his supervisor Robert Stajic.
Claimants also failed to establish a prima facie case that the State violated Labor Law §§ 240(1) and 241(6). Section 240(1) relates only to "special hazards" presenting "elevation-related risk[s]" (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 ). Claimants appear to have abandoned this cause of action, which nevertheless was not supported by the evidence; debris and water on the floor do not present an elevation-related risk.
Turning to section 241(6), the provision imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348 ; see also Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 ). The provision requires owners and contractors to comply with specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (see Misicki v Caradonna, 12 NY3d 511, 515 ; see also Ross at 505). The particular safety rule or regulation relied upon by a plaintiff must mandate compliance with concrete specifications, and not simply set forth general safety standards (id.).
In their post-trial memorandum of law, claimants rely on only the following Industrial Code provisions: 12 NYCRR §§ 23-1.7 (d) and (e); and 12 NYCRR § 23-1.30. Claimants have abandoned their reliance on Occupational Safety and Health Administration ("OSHA") standards and additional code provisions alleged in the claim.(8) In any event, alleged violations of OSHA standards do not provide a basis for liability under Labor Law § 241(6) (see Cun-En Lin v Holy Family Monuments, 18 AD3d 800, 802 [2d Dept 2005]), and the abandoned Industrial Code provisions are either general safety standards or inapplicable (see e.g. Ulrich v Motor Parkway Props., LLC. 84 AD3d 1221 [2d Dept 2011] [12 NYCRR Sec. 23-1.5 is general standard]; Zamajtys v Cholewa, 84 AD3d 1360, 1362 [2d Dept 2011] [12 NYCRR Sec. 23-2.1 applies only to stored materials]).
12 NYCRR § 23-1.7 (d) provides,
"(d) Slipping hazards. Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing."
12 NYCRR § 23-1.7 (e) concerns "[t]ripping and other hazards." Subsection (e) (1) provides, in relevant part, that "passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping." Subsection (e) (2) provides, in relevant part, that "[t]he parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris [. . .] insofar as may be consistent with the work being performed." These provisions have been found to be concrete specifications (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 351 ).
However, the provisions are inapplicable to the facts supported by the evidence. The court reads the words "or other elevated working surface" in section 23-1.7 (d) to modify the preceding list contained in the provision, which is in accordance with the ordinary rules of statutory construction: "Where, as here, a descriptive or qualifying phrase follows a list of possible antecedents, the qualifying phrase generally refers to and modifies all of the preceding clauses" (A.J. Temple Marble & Tile v Union Carbide Marble Care, 87 NY2d 574, 580 , citing McKinney's Cons Laws of NY, Book 1, Statutes § 254). There is no evidence that the floor of the waste decon area was an elevated surface.
In any event, Industrial Code §§ 23-1.7 (d) and (e) are inapplicable because the waste decon rooms are not passageways, water is a necessary and required safety precaution, neither water nor the debris claimant asserts was present are foreign substances, and claimant testified that he slipped and not that he tripped. Claimant testified, and the record establishes, that water was sprayed to limit asbestos dust that would escape from the bags of asbestos-covered material being removed (see Galazka v WFP One Liberty Plaza Co., LLC, 55 AD3d 789, 789-790 [2d Dept 2008] ["the wet plastic and asbestos fibers were neither a 'foreign substance' as defined by 12 NYCRR 23-1.7(d)", nor "debris" within the meaning of 12 NYCRR Sec. 23-1.7(e)(2) (internal citations omitted)]; see also Kosiv v ATC Group Servs., Inc., 53 Misc 3d 1201[A] [Sup Ct, NY County 2016] [water sprayed to limit asbestos dust]). Additionally, courts have held that debris will not be considered a "foreign substance" pursuant to section 23-1.7 (d) if such substance "was an integral part of the . . . project on which the injured plaintiff was working" (Galazka v WFP One Liberty Plaza Co., LLC, 55 AD3d 789, 789 [2d Dept 2008]). Claimant did not present evidence that the "debris" was anything other than what came off or out of the bags of asbestos debris brought through the waste decon area, and what he could have tracked into the area when he entered.
Even if claimant proved violations of both Industrial Code sections, which the court finds he did not, he failed to present prima facie evidence that said violations proximately caused his injuries. The lack of evidence as to proximate causation is discussed above regarding claimant's failure to establish negligence and a violation of Labor Law § 200.
The last regulation claimant relies on is Industrial Code § 23-1.30, which requires workers to be provided with sufficient illumination to create a safe work place. Section 23-1.30 has been found to be a concrete specification (see Cahill v Triborough Bridge & Tunnel Auth., 31 AD3d 347 [1st Dept 2006]), but claimant has not established facts bringing his incident within the specifics of this section. The section requires that "in no case shall such illumination be less than ten foot candles in any area where persons are required to work nor less than five foot candles in any passageway, stairway, landing or similar area where persons are required to pass." Claimant's assertion that he could "barely see" (11/14/17 T: 57), does not provide the concrete information specified in the provision. Even if the illumination was less than ideal, it could not have contributed to claimant's injury; he was walking backwards, wearing protective goggles, and he admitted he was not looking where he was going (id. at 86).
As a final matter, the testimony at trial gives the court pause as to claimant's version of events. Claimant's own testimony has certain internal inconsistencies. Claimant was the only witness to the alleged fall as none of the other workers in the waste decon area saw it occur. Claimant's testimony is that there was dirt and water in the dirty room which caused his fall, however, he testified that after he was on the ground his head was in the abatement area and his lower body was in the first waste decon room. The court must question how in the low-light conditions to which claimant testified, he was able to see the alleged water and/or dirt on the floor. Lastly, the testimony of claimant's coworker and the testimony of his supervisor were clear that at no time did the claimant mention a slip and fall as the mechanism for his back pain. Further, while it may not be dispositive, claimant's WCB claim form (Exhibit C) also makes absolutely no mention of any fall as a mechanism for the injury. The court understands the potential problems involved in the language barrier but the WCB claim form contains information which cannot be conveyed simply by "hand signals." Since claimant was the only person to allege the slip and fall, his credibility and accuracy are crucial to this matter. In a case where the court has reservations about claimant's accuracy, if not full credibility, the court cannot find for liability against the State on this record.
The court will not decide defendant's mid-trial motion to dismiss, which is moot in light of the court's decision, that claimants failed to establish the State's liability for the entire claim.
Because the court finds defendant not liable, it will not reach the issue of claimant's comparative negligence based on his exiting through the waste decon area in violation of the rules, and his failure to look where he was going.Accordingly, the court finds defendant not liable for negligence and violations of Labor Law §§ 200, 240 and 241(6). Claim No. 123687 is dismissed. The Clerk of the Court is directed to enter judgment accordingly.
May 1, 2018
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
2. The court will refer to Mr. Katic as "claimant." Mrs. Katic's claim is derivative of her husband's.
3. Carmen Ess interpreted for claimant and Mr. Milosevic. Both testified in Serbian, their native language, as they are not fluent in English (11/14/17 T: 9-11). ("[date] T: [#]") refers to the relevant page(s) of the transcript for the trial on the referenced day of the proceedings.
4. Exh. N is a transcript of claimant's testimony at a 50-H hearing on March 27, 2014, taken by an attorney representing the State University Construction Fund.
5. The authenticity of his signature was stipulated (id. at 101).
6. Counsel noted for the record that on the top right of the form it says that claimant would need a "Sweden" interpreter if he testified at a hearing (id. at 99).
7. He was dragging 100 pounds of bags backwards, which certainly could have caused his back to go out.
8. Claimants are also silent as to Part 56 of the Industrial Code concerning cleaning of decontamination areas, which was not pled but counsel discussed at trial.