Anderson v. MSG Holdings, L.P.Anderson v. MSG Holdings, L.P.
Plaintiff, an iron worker, commenced this action alleging, among other things, violations of
Plaintiff testified at his deposition that on the day of the accident, he was working with a gang erecting precast concrete panels for the stadium seating. A crane on the arena floor lifted the panels onto a steel structure that had been installed. A steel “raker” beam ascended at an angle to form the pitch of
The accident occurred as plaintiff attempted to help a coworker who was having difficulty moving a panel. Plaintiff, who was standing six inches to a foot from the edge of the panel that he was attempting to move, lost his balance and fell off the panel. He was wearing a harness but he was not tied off, because there was no place tie off. Plaintiff also stated that he was told to follow federal Occupational Safety and Health Administration‘s (OSHA) rules referred to as subpart R that did not require a tie-off at the elevation at which he was working.*
Rodrigo Caro, a Turner site safety manager, testified that while Falcon was to comply with subpart R in installing of steel, in installing precast concrete Falcon was to comply with subpart M, which requires protection for workers on surfaces with an unprotected edge more than six-feet high (
We find that plaintiff was not provided with an appropriate tie-off notwithstanding defendants’ claim that he was instructed to follow subpart M. ”
Plaintiff established prima facie that while subjected to an elevation-related risk, he was injured due to defendants’ failure to provide him with proper fall protection, namely, an appropriate place to which to attach his harness.
The record demonstrates that the only place to tie off to was below the level of plaintiff‘s feet. Indeed, Caro testified that there were no guardrails or life nets where plaintiff was working and that he could not recall any independent lines above the workers installing the panels for them to tie off to. He testified that plaintiff‘s only option was to tie off to the inserts in the most recently placed panels behind him, below his feet. In fact, he testified that tying off to the raker beam was an option only for the installation of the first panel. After that, the anchorage points were the only tie off points. Accordingly, “[t]he tie off to the inserts was what was determined by the Falcon Management [plaintiff‘s employer]. That‘s the plan they provided. So that was what was available for the guy to tie off.” He acknowledged, however, that OSHA does not recommend tying off below the feet.
Caro‘s testimony was supported by Brian O‘Shaughnessy, another site safety manager for Falcon, who testified that tying off below the feet would be a violation of subpart M. And, although, according to O‘Shaughnessy, tying-off above the head is a safer option, “[a]ny tie-off point would be better than no tie-off point.” Be that as it may, refusing to tie off to an anchorage point that is inconsistent with OSHA regulations does not make plaintiff the sole proximate cause, and comparative negligence is not a defense to a
Notably, as indicated, Caro had testified that the only places for plaintiff to tie off, as determined by Falcon management, were the inserts in the precast concrete panels. Similarly, O‘Shaughnessy stated in his affidavit that ironworkers were instructed to tie off to the inserts in the precast concrete panels. And, although he also stated in his affidavit that rakers beams were also available as tie-off anchor points, he never stated that plaintiff or the other iron workers were instructed that they could tie off to the raker beam.
Nevertheless, mirroring the assertion of defendants’ expert, Caro would later state in an affidavit that the raker beam was also available to tie off. However, an injured worker‘s failure to use safety devices will not constitute the sole proximate cause of the accident unless the worker knew that he or she “was expected to use them but for no good reason chose not to do so” (Gallagher v New York Post, 14 NY3d 83, 88 [2010]). Regardless of whether the raker beam was an appropriate tie-off point, because defendants point to no evidence that plaintiff knew to tie off to it, his failure to do so cannot be the sole proximate cause of the accident.
While plaintiff was provided with a safety harness, he was not provided with a proper place to which to tie off his harness. Therefore, plaintiff is entitled to summary judgment as to liability on the
Concur—Acosta, J.P., Renwick, Saxe, Feinman and Kahn, JJ.
ACOSTA, J.P., RENWICK, SAXE, FEINMAN AND KAHN, JJ.