Kalofonos v. State

• Decision Date: 20 September 1982
• Docket Number: No. 63463,63463
• Citation: 115 Misc.2d 692,454 N.Y.S.2d 645
• Parties: Spyros KALOFONOS and Harriet Kalofonos, Claimants, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 645

454 N.Y.S.2d 645

115 Misc.2d 692

Spyros KALOFONOS and Harriet Kalofonos, Claimants, v. The STATE of New York, Defendant.

Claim No. 63463.

Court of Claims of New York.

Sept. 20, 1982.

Lipsig, Sullivan, Mollen & Liapakis by Jeffrey Shapiro, New York City, for claimants.

Robert Abrams, Atty. Gen. by Thomas G. Vaughan, New York City, for defendant; John T. Pellini, New York City, of counsel.

DECISION

FRANK S. ROSSETTI, Judge.

This claim is for damages arising from personal injuries sustained by Spyros Kalofonos when he fell from a scaffold while working on a State-owned bridge in Nassau County. His wife, Harriet Kalofonos, is joined herein and seeks loss of consortium damages. Claimants contend the defendant is liable absolutely under section 240 of the Labor Law or in negligence under Labor Law sections 241, 200 or under common law principles.

On March 24, 1978, Mr. Kalofonos was working for J & T Painting Co. ("J & T"), which had a contract with defendant to paint 17 bridges on various State highways on Long Island. At said date the bridge being worked on was an overpass of the Seaford-Oyster Bay Expressway over Waverly Avenue. Mr. Kalofonos was engaged in sandblasting the structural steel beams on the underside of the bridge to clean them preparatory to painting. He did the sandblasting from a scaffold mounted on the rear of a flat-bed truck.

The scaffold consisted of a tubular metal frame with two vertical supports on which horizontal wood planks were placed at various levels. Ropes held the frame to the truck and the planks to the frame. The planks were actually ladders covered over longitudinally with boards. Two of them formed the platform from which claimant was working and each plank was 22 to 24 feet long, forming a five-foot wide platform about eleven feet above the roadway. From the photographs in evidence, it appeared the planks extended approximately five feet beyond the vertical frame supports at both the front and rear of the truck. The metal frame supports appeared to extend about two feet above the planks.

The sandblasting was done with a hose fitted with a nozzle and powered by a compressor. Depending on how much hose was played out, it weighed 20 to 30 pounds. When in use, the nozzle exerted a reactive force against claimant of about 120 pounds. Mr. Kalofonos was wearing a cloth hood with a plastic visor to protect him from the debris that fell back from the sandblasting.

Claimant arrived at the worksite at 8:00 a. m. After waiting for the weather to clear, he started sandblasting at about 10:00 a. m. He was assisted by another J & T employee, who shut the compressor on and off at Mr. Kalofonos' direction and apparently also moved the truck as the work progressed. The State engineer-in-charge for the contract had arrived at the jobsite between 8:30 and 10:00 a. m. and J & T's vice president and part owner arrived there about 10:30 a. m. Between 11:30 a. m. and noon, while claimant was still sandblasting, and while the State engineer and claimant's employer were talking to one another near the truck, Mr. Kalofonos fell off the rear of the scaffold onto the roadway. The evidence indicated he was about two feet from the end of the planks when he fell, to wit beyond the rear metal vertical support. ¹ Mr. Kalofonos sustained serious injuries and this claim ensued.

Claimants raise three bases for State liability: (1) absolute liability under Labor Law section 240, subdivision 1 (see, e.g., Kenny v. George A. Fuller Co., supra, p. 186, 450 N.Y.S.2d 551; Yearke v. Zarcone, 57 A.D.2d 457, 459-460, 395 N.Y.S.2d 322); (2) negligence under Labor Law section 241, subdivision 6, and a rule thereunder (12 NYCRR 23-5.1) (see Kenny v. George A. Fuller Co., supra, p. 186, 450 N.Y.S.2d 551, & cases cited); and (3) common law negligence, as codified in Labor Law section 200 (see, e.g., Yearke v. Zarcone, supra, p. 459, 395 N.Y.S.2d 322; Ramos v. State, 34 A.D.2d 1056, 312 N.Y.S.2d 185).

Considering said section 240 first, it provided, inter alia:

" § 240. Scaffolding and other devices for use of employees

1. All contractors and owners and their agents ... 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."

Patently, the work being performed by Mr. Kalofonos comes within said subdivision 1 as one or more of "repairing ... painting cleaning." (Id.) More importantly, we believe the facts show that the scaffold claimant was using was not "so constructed, placed and operated as to give proper protection" to him. Mr. Kalofonos was using a device which exerted substantial backward pressure against him and which itself was bulky and heavy. The sandblasting required him to look and extend his arms upward and seemingly his vision was limited by the hood he wore. Proper protection under these circumstances required at the least that a safety line or railing be constructed on the scaffold to circumscribe claimant's work area. We note that Mr. Kalofonos testified to safety railings being used on other State jobs. Also, the truck-scaffold should not have been so placed or moved as to require claimant to go beyond the vertical metal frame supports, which offered him some, although inadequate support.

Defendant argues that said subdivision 1 is inapplicable because subdivision 2 of section 240 covers safety railings exclusively. That subdivision provides, inter alia:

"2. Scaffolding or staging more than twenty feet from the ground or floor, swung or suspended from an overhead support or erected with stationary supports, except scaffolding wholly within the interior of a building and covering the entire floor space of any room therein, shall have a safety rail of suitable material properly attached, bolted, braced or otherwise secured, rising at least thirty-four inches above the floor or main portions of such scaffolding or staging and extending along the entire length of the outside and the ends thereof, with only such openings as may be necessary for the delivery of materials."

The State contends that since the scaffold here was less than 20 feet above the roadway, there was no statutory requirement of safety railings. However, the State concedes that whether proper protection was given under subdivision 1 is a factual question for the finder of fact. (See Lagzdins v. United Welfare Fund-Security Div. Marriott Corp., 77 A.D.2d 585, 588, 430 N.Y.S.2d 351; Struble v. John Arborio, Inc., 74 A.D.2d 55, 57, 426 N.Y.S.2d 592.) ² All subdivision 2 does is to make a failure to provide safety railings for scaffolds over 20 feet a failure to provide proper protection as a matter of law. It creates an irrebutable statutory presumption to that effect, but does not create a converse presumption, to wit, that scaffolds less than 20 feet never require safety railings to provide proper protection. (See Weber v. State, 53 N.Y.S.2d 598, 600.) We believe a proper interpretation of section 240, giving due consideration to the overriding legislative intent and purpose to protect workingmen in dangerous jobs (see Sarnoff v. Charles Schad Inc., 22 N.Y.2d 180, 185-186, 292 N.Y.S.2d 93, 239 N.E.2d 194, & case cited; Rocha v. State, 77 Misc.2d 290, 296-298, 352 N.Y.S.2d 990, affd. 45 A.D.2d 633, 635, 360 N.Y.S.2d 484; McKinney's Cons.Laws of N.Y., Book 1, Statutes, §§ 91, 92, 95, 96), and construing and harmonizing the statute in the light thereof (see McKinney's, supra, § 97, 98; see, also, § 240, p. 414), does not limit use of safety railings to scaffolds over 20 feet under subdivision 2 or presumptively deny such safety devices to scaffolds in all other circumstances, even where proper protection would be given thereby (cf. Tilkins v. City of Niagara Falls, 52 A.D.2d 306, 309-310, 383 N.Y.S.2d 758).

We also observe that devices other than safety railings (such as safety lines, safety harnesses, safety nets or toeboards) could singly or in combination provide proper protection. Further, the placement of the truck and the method of having claimant work beyond the vertical supports near the rear edge of the planking did not afford him proper protection. (Cf. Cardile v. D'Ambrosia, 72 A.D.2d 544, 420 N.Y.S.2d 732.) Our conclusion of State liability under subdivision 1 is based on the factual finding that the mere two flat planks and vertical frame supports did not provide proper protection for a workman under the circumstances of this case.

The State also raises the argument that a rule of the State Industrial Board of Appeals cannot be used as the basis for liability under section 240. We disagree in part. That rule, Rule 23-5.1, provides, inter alia:

"(j) Safety railings. (1) The open sides of all scaffold platforms, except those platforms listed in the exception below, shall be provided with safety railings constructed and installed in compliance with this Part (rule).

Exceptions: Any scaffold platform with an elevation of not more than seven feet ...." (12 NYCRR 23-5.1[j][1].)

However, said administrative rule is not the basis for the above finding. Rather, we have considered it as some evidence of the standards extant in the construction industry (see Weber v. State, supra, p. 599), just as we have considered the other evidence relevant to the issue of proper protection (such as the custom and usage in the industry--see Archie v. Todd Shipyards Corp., 65 A.D.2d 699, 700-701, 410 N.Y.S.2d 69). Such in no way constitutes any deferral of the statutory standard to administrative rule (see Long v. Forest-Fehlhaber, 55 N.Y.2d 154, 160, 448 N.Y.S.2d 132, 433 N.E.2d 115.) Only the usual and proper consideration of relevant evidence is involved.

In addition...