Suarez v. State

50 Misc. 3d 544, 22 N.Y.S.3d 793
CourtNew York Court of Claims
DecidedJuly 8, 2015
DocketClaim No. 121254
StatusPublished

This text of 50 Misc. 3d 544 (Suarez v. State) is published on Counsel Stack Legal Research, covering New York Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Suarez v. State, 50 Misc. 3d 544, 22 N.Y.S.3d 793 (N.Y. Super. Ct. 2015).

Opinion

OPINION OF THE COURT

Stephen J. Mignano, J.

Claimant, a 19-year-old newly-hired laborer, suffered serious injuries while working on a bridge rehabilitation project involving replacement of the steel bearing plates on an 1-287 overpass in Rye, part of a larger 31-bridge project. He alleges, via his guardian, that defendant, owner of the work site, is responsible for his injuries and on this motion seeks partial summary judgment establishing liability pursuant to various provisions of the Labor Law. Defendant opposes claimant’s motion and cross-moves for summary judgment of dismissal.

The project involved hoisting new steel bearing plates, each weighing 200-250 pounds, up a 37-39 degree sloped embankment about 37.5 feet to the underside of the overpass. The contractor’s superintendent testified that the original plan was to lower the plates from the highway above using a boom truck, but the truck was unavailable so an alternate plan was devised by a carpenter for the contractor using a “come-along”—a ratcheting pulling device with hooks on both ends. One hook was attached to a bolt anchored in the concrete abutment at the top of the slope. A nylon rope was threaded through the other hook, with a cart containing the plates (one at a time) attached to one end of the rope and a truck attached to the other end, driving and pulling the load up the slope. The subject accident occurred during the first operation of the day, although it had been used the day before without incident.

Gabriel Gentile testified that three men were involved—he would drive the truck, foreman Jorge Rodriguez would load the plates onto the cart at the bottom of the slope, and claimant would unload the plates at the top and send the wagon back down. That was the plan. He testified that on July 13, 2011, after being signaled by Rodriguez, he was driving the truck and almost reached the point that marked the end of the run, when he suddenly felt the line go slack. When he looked back he saw claimant rolling down the slope. It appears from Rodriguez’s testimony that he had lost sight of the cart and claimant, was not sure if the cart had reached the top, and was repositioning himself to see better when he heard a voice yell and saw claimant rolling down the hill.

Anthony Mangone, a safety consultant for the contractor, investigated and filed an incident report, writing that

[546]*546“[a]fter several [unknown] trips up and down the pulley end being used to anchor the operation failed under load. As a result the entire come-along and load was released and struck Mr. Suarez in the head and face knocking him down the slope of the abutment unconscious and in respiratory arrest” (exhibit 23).

The accident was investigated by OSHA, which found

“that the employees used a . . . manually lever operated cable hoist ... as a block [pulley] for an operation where they towed a cart containing a bridge bearing plate up an embankment to the overpass footing. The load block/pulley hook of the hoist was attached to a 1 inch diameter 5.5 inch long bolt at the footing . . . The truck was located 93 feet down the service shoulder from the cement pier at the time of the accident therefore the cart was almost at the top of the embankment. The employee was located to the left rear of the cart. The cast aluminum yoke of the load pulley snapped sending the hoist, pulley and cart down the embankment.” (Exhibit 26 at 1.)

In its citation and notification of penalty, OSHA concluded:

“The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to being struck by components of the hoist and/or the load should a manually operated cable hoist fail because of improper use: ... ‘A Hook International Inc. Industrial Cable Hoist, Model H24-20 was used for a purpose for which it was not intended or designed and the hoist was used in a manner where it was restricted from forming a straight line with the direction of loading creating a side pull.’ ” (Exhibit 14 at 6.)

Mangone explained that the come-along is properly used as a ratcheting device to pull a secure load along a straight line, and that using it to hoist the load up the slope was improper and what caused it to fail, as found by OSHA, whose findings he agreed with in all respects.

The threshold point of contention on these cross motions for summary judgment is the applicability of Labor Law § 240 (1) to the above recited facts. That statute requires that owners [547]*547and contractors engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure,” except certain owners of one- and two-family dwellings, “furnish or erect . . . 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” employed in the performance of such labor. The statute imposes absolute liability on contractors or owners where the failure to provide proper protection as required by the statute is a proximate cause of a worker’s injury (see Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 [2011]). Claimant maintains that the undisputed facts establish a prima facie case under Labor Law § 240 (1) and governing case law. Responding to defendant’s contention that those facts establish a scenario outside of the protection of section 240 (1), claimant argues that defendant’s arguments arise from a complete misunderstanding of the law and that the various issues of fact alleged by defendant relate to matters that are completely irrevelant to the determination of liability under the statute.

For the purpose of section 240 (1) analysis, the facts of this case are on all fours with those in Runner v New York Stock Exch., Inc. (13 NY3d 599 [2009]) where the plaintiff injured his hands while moving an 800-pound reel of wire down a set of four stairs. A makeshift pulley operation was used with a rope attached to the reel wrapped around a metal bar at the top of the stairs while workers, essentially used as a counterweight, held the other end intending to lower the reel slowly. The weight proved too heavy and plaintiff’s hands were drawn up into the bar, causing injury. The evidence was that a pulley or hoist should have been used and the “jerry-rigged device actually employed had not been adequate to that task” {id. at 602).

The Court in Runner noted that although the statute provides for absolute liability, it applies only to a narrow category of workplace risks—those arising from elevation differentials—and that the defendant in that case argued that “gravity must operate directly upon either the plaintiff or upon an object falling upon the plaintiff” for there to be liability under the statute {id. at 604). In categorically rejecting defendant’s formulation, the Court noted that although precedent had noted that the special hazards arising from elevation differentials encompass both “falling worker” and “falling object” cases (see Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [548]*548[1993]; Narducci v Manhasset Bay Assoc., 96 NY2d 259 [2001]), the statute’s scope is not so limited:

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Cite This Page — Counsel Stack

Bluebook (online)
50 Misc. 3d 544, 22 N.Y.S.3d 793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suarez-v-state-nyclaimsct-2015.