Gasques v. StateGasques v. State
Ordered that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendant’s motion which were for summary judgment dismissing the Labor
The injured claimant, while ascending the Brooklyn tower of the Kosciuszko Bridge on a two-point suspension scaffold, sustained injuries when he stopped the scaffold, and his hand was crushed between the motor control of the scaffold and thе steel of the bridge. The injured claimant and his wife (hereinafter the claimants) brought the instant claim alleging violations of
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The defendant made a prima facie showing of entitlement to judgment as a matter of law dismissing the
Accordingly, the Court of Clаims properly granted those branches of the defendant’s motion which were for summary judgment dismissing the
Wanderlei Gasques (hereinafter the claimant) was employed by Ahern Painting Contrаctors, which had a contract with the
Thе claimant described several safety problems with this scaffold. First, the switches on the scaffold were outside of the platform, requiring the workers to reach behind the cable to activate their motors. Another safety problem was that the scaffold was too wide for the upper portion of the bridgе tower, thus it could not ascend the tower without tilting its way up, inclining up essentially in a “see-saw” fashion. As described by defense counsel in the affirmation in support of summary judgment: “The scaffold moves along cables inside the bridge towers; the towers narrow upon ascent. . . . Consequently, the space within the bridge suppоrt becomes more confined as the elevation increases. . . . When the scaffold rises, it is necessary for each painter to guide the scaffold with the hand not on the control switch to prevent the scaffold from swaying. . . . Each painter carries a coil of spray line to the spider scaffold. . . . He drops the rolled up coil underneath the scaffold and fixes the spray line to the side of the scaffold with a piece of rope. . . . The painters watch the spray line to make sure that they do not tangle and interfere with the operation of the spider lift.”
To further complicate matters, the workers needed access to several hoses to provide paint and material to the spray guns they used in their sandblasting and painting operation. If the hoses became stuck or entangled in the too narrow space outside the lift, the painter would essentially have to reach outside the scaffold and under it to reach the hoses. There was no space for the workers to reach the hoses on the sides of the scaffold in that narrow space without getting crushed between the motor and the bridge, thus the scaffold inadequately protected the workers for the job they had to do.
The workers wore full face masks as well as earplugs to protect themselves from the fumes and the deafening noises of the spray guns and motors. At one point during the ascent in the tower, the claimant’s paint hose caught on something below as the scaffold moved up. The claimant reached for the hose and reached to the motor control to stop the scaffold. He
In opposition to the defendant’s motion for summary judgment, the claimant presented the аffidavit of an expert who opined that the motor control on the spider scaffold “which was of the fixed position type used to make the scaffold ascend and descend was unsafe and defective in that it was not provided with a means of locking it in the off position nor was it provided with a guard to prevent accidental activation.”
The claimant has unquestionably raised triable issues of fact with regard to his
The scaffold provided tо the claimant contained nothing to prevent the type of accident that foreseeably happened with the uncovered motor control outside of the platform crushing his hand. It is well established that “the availability of a particular safety device [such as a scaffold] will not shield an owner оr general contractor from absolute liability if the device alone is not sufficient to provide safety without the use of additional precautionary devices” (Smizaski v 784 Park Ave. Realty, 264 AD2d 364, 365 [1999], quoting Conway v New York State Teachers’ Retirement Sys., 141 AD2d 957, 958-959 [1988]).
In a case quite similar to this, Ienco v RFD Second Ave., LLC (41 AD3d 537 [2007]), the plaintiff, while working with a partner to move a beam, was struck in the shoulder by the beam while in a struggle to remove the beam from a column. This сaused him to lose his balance. He was injured when, in attempting to stop himself from falling, he braced his foot against a piece of metal and hit his head against the column, sustaining a head injury.
In Ienco, this Court stated: “
Likewise in Skow v Jones, Lang & Wooton Corp. (240 AD2d 194, 195 [1997]), the First Department stated the following: “That plaintiff neither fell from a height nor was struck by a falling object does not require dismissal of his
In Sasso v NYMED, Inc. (238 AD2d 799 [1997]), another case comparable to the present case and cited by the claimant, Sasso was injured while installing sheet rock at a construction site. The slab of sheet rock began to fall and as he reached to grab it, he was pulled pаrtially over the protective railing around the scaffold upon which he was standing, injuring his back. The Appellate Division, Third Department, concluded that “the accident in question was the direct consequence of the application of gravity to the sheetrock, which, having been inadequately hoisted or secured, posed a special hazard because ‘of a difference between the elevation level of the required work and a lower level’ (Rocovich v Consolidated Edison Co., 78 NY2d 509, 514; see Sheridan v Beaver Tower, 229 AD2d 302, 303-304, lv dismissed 89 NY2d 860). The fact that plaintiff did not himself fall is not dispositive, for while the scaffold shielded him from the risk posed by the location of his worksite some six feеt above the ground, it did not protect him from the distinctly separate, elevation-related hazard created by the need to suspend a 50-pound piece of sheetrock over his head” (Sasso v NYMED, Inc., 238 AD2d at 800 [citations omitted]).
Thus, the claimant’s case here falls squarely within the line of cases that find a
In Zdunczyk v Ginther (15 AD3d 574 [2005]), the plaintiff allegedly injured his hand when, while assisting a coworker in lowering construction debris, the coworker suddenly released the rope to which the bucket was attached. This Court held that the plaintiffs injury was tangentially related to the effects of gravity upon the bucket and arose from the usual and ordinary dangers of a construction site rather than the kind of elevation-related risk contemplated by the statute. Similarly, in Sajid v Tribeca N. Assoc. L.P. (20 AD3d 301 [2005]), the Appellate Division, First Department, found that when a counterweight fell and crushed the plaintiffs hand it was not an accident caused by an elevation-related risk, as the counterweight was not elevated over the work site. In fact, the counterweight was not even elevаted waist high and fell only eight inches. Finally, in O’Brien v Triborough Bridge & Tunnel Auth. (17 AD3d 105 [2005]), the plaintiffs hand hit an iron beam when he was working on a slippery wooden box. This also appears to be more of a workplace accident not resulting from the particular risks of hoisting something to a height.
The claimant in the case at bar was not even remotely injured by something that could be seen as resulting from the “usual and ordinary dangers of a construction site” (Zdunczyk v Ginther, 15 AD3d at 575). As has been noted extensively above, he was working on a tilting spider scaffold at a high elevation that required the coordinated effort of a coworker to ascend. The scaffold itself was dangerously constructed so that it tilted and yet it was forced to see-saw in order to climb through an ever narrowing bridge tower. The main tool for his work was a paint hose that was improperly secured and hoisted so that it got stuck. In an effort to retrieve his hose, he was forced to reach for it causing the scaffold to tilt. In an effort to both prevent his fall and retrieve the hose, he got his hand crushed by an improperly and unsafely exposed motor.
Here, the claimant submitted evidence that the work involved a significant inherent risk attributable to an elevation differential, as the hoses dangled from the scaffold to thе ground at a great height as the scaffold tilted up and down as it rose higher in the tower (see e.g. Ienco v RFD Second Ave., LLC, 41 AD3d 537 [2007]; Ortiz v Turner Constr. Co., 28 AD3d 627, 628 [2006]; Kollbeck v 417 FS Realty, 4 AD3d 314 [2004]; Smith v Artco Indus. Laundries, 222 AD2d 1028 [1995]) and the claimant was compelled to reach dangerously outside the see-sawing platform to prevent the dangling hoses from entangling
The fact that the claimant did not himself fall from a height or have an object from the work site fall upon him does not preclude recovery under