In the claim before me, claimant Edward Hynson seeks damages under Labor Law §§200, 240 and 241 for injuries he allegedly suffered on September 5, 2007, when he fell from a baker scaffold while installing telecommunication cables as an employee of Starcom Communications Services, Inc. at the Neil D. Levin Graduate Institute of International Relations and Commerce (the “Levin Institute”) of the State University of New York (“SUNY”). A trial on liability was conducted on December 1 and 2, 2020 on the section 240(1) claim, at which — as a result of prior motion practice — the only issue was whether claimant was the sole proximate cause of his injuries.1] The contested issues were narrowed by my ruling on Hynson’s earlier summary judgment motion as to liability, set forth in a Decision & Order (“D & O”) dated July 14, 2015. In the D & O, I found that claimant established that the scaffold from which he fell was present on a work site owned by defendant, had not been properly constructed, and constituted an elevation-related hazard under Labor Law §240(1). Moreover, I held that its defects resulted in claimant falling to the ground and suffering injury (Hynson v. State of New York, UID No. 2015-049-041 [Ct Cl, July 14 2015, Weinstein, J.]). I also found that the State’s mere ownership of the work site was insufficient to show the requisite “nexus” with the project needed to subject it to liability under section 240(1). After further discovery, the parties made cross motions by claimant to renew and by defendant for summary judgment, and in my ruling thereon I found that Hynson had demonstrated the “nexus” element as well (Hynson v. The State of New York, UID No. 2019-049-012 [Ct Cl, Apr. 11, 2019, Weinstein, J.]). This left the issue of “sole proximate cause” as the one disputed question of fact to be resolved. At trial, claimant presented his own testimony, and that of expert witness Anthony Corrado. Defendant called its own expert witness Michael Kravitz. In addition to various documentary exhibits introduced by the parties, defendant presented excerpts of claimant’s depositions. In his testimony, Hynson gave the following account: as of September 5, 2007, he was employed with Starcom, installing cables for telephones and data. His job entailed “pulling” and “running” those cables, as well as testing and troubleshooting them (Hynson Deposition, April 4, 2013 ["Hynson Dep 4/4/13"] at 14; Hynson Deposition, October 8, 2014 ["Hynson Dep 10/8/14"] at 14-15). On the date of the accident, he reported to work at the Levin Institute at 119 54th Street in Manhattan (Transcript, December 1, 2020 ["Dec 1 Tr"] 19). It was his first day at the location (id. at 20). Upon arrival, he spoke to the Starcom foreman Dave, who gave him background on the project, and took him to a room to get ladders to use in their work2 (id. at 21). Claimant received no safety instructions (id. at 47). The assignment given Hynson by Dave was to “pull cables to location,” starting at a conference room on the third floor (id. at 23). He explained the work as follows: “they rough-in cables to an area and it’s up in the ceiling and they have to snake it…to a pipe and the pipe was above the location where I was working. So I had — once he’s fed the cable through it, I pull cable through, roll it up and leave it up in the ceiling….” (id. at 24). To perform this task, he had the A-frame ladder provided by Starcom, and hand tools (id. at 24-25). The ceiling on which his work was to be performed was about nine feet above the floor (id. at 26). Hynson went to the room where he was to work at about 9:00 a.m., and described the scene: the floor was not finished, the ceiling was “open,” and there were various kinds of material scattered about the floor, including pipes, sheetrock and hardware (id. at 27-28). Further, there was a baker scaffold in the center of the room, at the spot where Hynson had to work, under the junction box from which he had to pull cables (id. at 28-29). Hynson described a baker scaffold as a work space with four wheels and a platform, which allows for access to the ceiling (id. at 18). The apparatus was about 5 ½ feet high (id. at 54). Hynson said he asked two electricians working in the room if they knew who owned the scaffold, and they said they did not 3 (id. at 66). Claimant shook the scaffold to see if it would move, but the wheels were locked, and the materials on the floor obstructed his ability to move it anywhere (id. at 30-31, 35). According to Hynson, those materials belonged to other trades, and other workers were not supposed to touch them (id. at 30-31; see also id. at 61 [Hynson could not move the materials, because that was a "laborer's" job]). Although Dave was in the room, he did not take any steps in regard to the materials — nor did Hynson ask him to do so4 (id. at 31, 64). While claimant initially pointed to the materials on the floor as the reason he did not use the ladder, he later made clear that the scaffold itself was in the way, and he could not use the ladder unless it was moved (id. at 71). Hynson did not check the stability of the scaffolding surface before ascending, as it is supposed to be set up by a “competent person,” i.e., someone who knows how to assemble and inspect a scaffold5 (id. at 36-37; see also id. at 68 [Hynson did not check planks to see if they were secure]). He did not know the origin or condition of the scaffold, or whether it was only partially constructed (id. at 69). Hynson said he did not ask for any safety equipment prior to going on the scaffold, such as a lanyard or hard hat (id. at 68; see also Hynson Dep 10/8/14 at 35-36 [Hynson could not recall if he was wearing a hard hat]). Nor did Hynson have with him any safety equipment useful for scaffold work (id. at 50). Nevertheless, Hynson decided to use the scaffold to access the junction box. He later testified that it was more effective for his purpose than the ladder, because it allowed for lateral movement and he would have both hands free, while a worker is required to always keep one hand on a ladder (id. at 41). Thus, he climbed up the scaffold, using the rungs on its side (id. at 33). His foreman had an unobstructed view of this, but said nothing in regard to Hynson’s use of the scaffold (id. at 34, 45). The top of the scaffold was composed of about four wooden planks, each about six feet in length (id. at 39). It had no safety railings (id. at 40) Hynson, with both hands, began to “pull wire” that Dave fed to him (id. at 43). After he rolled the wire and put it in the ceiling, he saw that a nearby electrician working on the floor was having trouble getting wiring through a conduit above the scaffolding (id.). Hynson took two steps towards the electrician in an effort to provide help, and a plank moved (or “lifted up”), causing Hynson to fall to the ground (id. at 43-44, 46, 49; Hynson Dep 10/8/14 at 44). Claimant’s other witness, Anthony Corrado, testified that he has decades of experience as a construction foreman and trainer for Occupational Safety and Health Administration certifications, and was deemed an expert in the field of construction safety. Corrado opined that a baker scaffold was an appropriate piece of equipment to carry out the job with which Hynson was tasked (Dec 1 Tr at 87). He further stated that responsibility for the safety of the area, for inspecting the safety of the scaffold, and for carrying out any assembly or disassembly, would belong to a “competent person” — an OSHA term of art that typically referred to the foreman (id. at 88-91). Since Mr. Hynson had no certifications relating to operation of a Baker scaffold, he was not a competent person for such purpose (id. at 99). In regard to the condition of the scaffold, Corrado expressed the opinion that it should have had guardrails, and was a hazard in their absence (id. at 92-93). Similarly, unsecured planks were a violation of OSHA rules and unsafe, as would be their extension past the edge of the scaffold, as described by claimant (id. at 96-97). He further testified that it was the foreman’s responsibility to prevent Hynson from using the scaffold (id. at 106). On cross-examination, Corrado acknowledged that when an employee lacked space to open his ladder, his first step should be to go to his foreman for direction (id. at 108). For its part, defendant presented the testimony of Michael Kravitz, a professional engineer with experience as an inspector on various construction projects, and who was deemed an expert in the field of civil engineering.6 Kravitz testified that if materials block the ability of a construction worker to perform his job, he should ask his foreman to have them removed (Dec 2 Tr 15). In regard to the scaffold at issue, Kravitz stated that fall protection is required under OSHA rules at heights six feet and above (id. at 18). He also testified that guardrails are required for scaffolding — although there was no need for his employer to provide specific safety equipment in this instance, and the only equipment claimant required was his ladder, which was appropriate for the work Hynson was required to do (id. at 18-22). Kravitz further stated that a tradesman can move a scaffold himself if it is obstructing his work, but it would not be appropriate to use it without permission (id. at 19, 23). The proper path for Hynson to have taken in this case, according to defendant’s expert, was to ask his foreman to seek permission from the scaffold’s owner before using it (id. at 32). Kravitz also acknowledged that if Hynson was acting in a matter contrary to safety standards, his foreman had the authority to stop him (id. at 42). The sections of Hynson’s deposition testimony introduced by the State provided some background on claimant: he had worked as a telephone technician since 1983, and for Starcom since 2005 (Hynson Dep 10/8/14 at 8, 10). The account of the incident given by claimant at his depositions largely paralleled that of his trial testimony, with a few exceptions. In particular, he said at his first deposition that he asked the electricians if they knew who owned the scaffold before ascending it, and they told him they did not know (Deposition 4/4/13 at 32). He also acknowledged that he never checked to see if the planks were secured (id. at 88). Discussion Labor Law §240(1) provides, in relevant part: “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.” This duty is nondelegable; that is, owners are liable under the statute “whether or not they supervise or control the work,” and if there is a violation of section 240(1), “the plaintiff’s own negligence does not furnish a defense” (Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]). Nevertheless, “where a plaintiff’s own actions are the sole proximate cause of the accident, there can be no liability” (id.). For this doctrine to apply, it matters not whether plaintiff’s negligence contributed to the accident; it must be the only cause (see Cruz v. Roman Catholic Church of St. Gerard Magella in Borough of Queens in the City of NY, 174 AD3d 782, 783 [2d Dept 2019] ["A worker's comparative negligence is not a defense to a cause of action under Labor Law §240(1)"]). Defendant argues here that claimant was the sole proximate cause of his fall because he did not undertake the “prudent course” of consulting with or seeking permission from his foreman before ascending the scaffold, but rather made the unilateral decision to do so (Defendant’s Post- in Gallagher v. New York Post (14 NY3d 83 [2010]) that liability does not attach under section 240(1) — and claimant shall be found the sole proximate cause of any accident — when “the safety devices that plaintiff alleges were absent were readily available at the work site…and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident” (id. at 88). The Court of Appeals has elsewhere set forth this test in greater detail, finding that if the following criteria are met, §240 liability cannot be established: plaintiff “(1) had adequate safety devices available, (2) knew both that the safety devices were available and that [plaintiff was] expected to use them, (3) chose for no good reason not to do so, and (4) would not have been injured had [he] not made that choice” (Biaca-Neto v. Boston Road II Hous. Dev. Fund Corp., 34 NY3d 1166, 1167-1168 [2020] [citation and internal quotation marks omitted]). The third element may be met when the worker “misuses an otherwise proper safety device, chooses to use an inadequate safety device when proper devices were readily available, or fails to use any device when proper devices were available” (see Orellana v. 7 W. 34th St., LLC, 173 AD3d 886, 887 [2d Dept 2019]). Applying this test to the present case, defendant’s argument is that claimant (1) had a safety device available (a ladder); (2) knew of its availability and the expectation that he use it; (3) chose for no good reason to use the scaffold instead; and (4) was injured as a result. In deciding whether or not such analysis is correct, those cases which found plaintiff the sole proximate cause in somewhat analogous contexts provide some guidance. Gallagher itself cites two cases involving a plaintiff’s failure to use a ladder, instead relying on a more dangerous practice that caused injury. In Montgomery v. Federal Express Corp. (4 NY3d 805 [2005]), plaintiff was injured when he ascended to and then descended from a roof using an upside-down bucket, although he knew there were ladders available for such purpose on the work site. In Robinson v. East Med. Ctr., LP (6 NY3d 550 [2006]), plaintiff used a six-foot ladder although he knew he could obtain an eight-foot ladder (and his foreman had told him he would get one), and lost his balance and suffered injury as a result. In both instances, the Court of Appeals found as a matter of law that plaintiff was the sole proximate cause of his injury, and therefore could not recover under section 240(1). There are, however, two primary aspects of Hynson’s account that distinguish these cases from the matter before me. First, Hynson had adequate reasons for choosing to use the scaffold to perform his work, rather than employ his ladder. Specifically, the scaffold was blocking the placement of the ladder, and claimant could not proceed without moving it. Hynson did not believe he had authority to do so, or the means to accomplish such a task, and the reasonableness of his views in this regard are supported by the testimony of claimant’s expert. There were other advantages to the scaffold as well — in particular it gave him greater maneuverability (see supra p 5). Second, claimant’s supervisor was on site, witnessed what had occurred, and neither told Hynson to refrain from using the scaffold, nor assisted him in moving the obstacle. To the contrary, “Dave” worked with claimant while Hynson stood on the scaffold. I credit Hynson’s testimony in regard to these matters — as it has been generally consistent throughout his depositions and trial over the course of many years, and nothing in the record calls it into question. Moreover, I am persuaded by the testimony of Mr. Corrado that the foreman had the authority to stop Hynson from ascending the scaffold, yet he did not do so. Either of these grounds takes the claimant’s case outside the ambit of those precedents where sole proximate causation has been found. A worker’s articulation of a reasonable basis for choosing a different safety device from the one he was given has been found to preclude dismissal of a section 240(1) claim on sole proximate cause grounds (see Noor v. City of New York, 130 AD3d 536, 540 [1st Dept 2015], lv dismissed 27 NY3d 975 [2016] [plaintiff demonstrated there was issue of fact on sole proximate cause by giving a "specific reason" as to why he did not use his ladder open as directed --- that it would have been "exhausting" to do so]; Quinones v. Olmstead Props., Inc., 133 AD3d 87, 89 [1st Dept 2015] [triable issue of fact created when plaintiff contended that he could not use available cherry picker to perform work]). In Quinones, plaintiff claimed that he could not employ the device he was told to use “because the concrete blocks and light fixtures in front of the billboard were in the way” (133 AD3d at 89). Here too, the presence of the scaffold blocking claimant from placing his ladder presented a reasonable ground for using the scaffold instead. To the extent claimant could have taken alternative steps such as seeking out help or permission to move the scaffold, at most his failure to do so constituted contributory negligence, which is not a defense to a section 240 claim (see Hernandez v. Bethel United Methodist Church of NY, 49 AD3d 251, 253 [1st Dept. 2008] [rejecting argument that plaintiff could have "either [repositioned] the ladder or [directed] another worker to hold his ladder while he worked,” as showing only comparative negligence]). In any case, since the evidence demonstrates that claimant had neither the authority nor ability to move the scaffold himself, the accident was not solely caused by his failure to take this step (see Barreto v. Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015], rearg denied 25 NY3d 1211 [2015] [failure of worker to cover manhole as instructed was not proximate cause of injury, since it took at least two workers to move it]).Similarly, Hynson’s acknowledged failure not to fully check the scaffold to see if it was properly assembled does not render him the sole proximate cause of the accident (see Nacewicz v. Roman Catholic Church of the Holy Cross, 105 AD3d 402, 402—403 [1st Dept 2013] [plaintiff's use of ladder that other individual had improperly set up did not show he was sole proximate cause of accident; "[d]efendant’s argument that plaintiff should have checked the ladder does not show intentional misuse or other egregious misconduct and amounts, at most, to contributory negligence, a defense inapplicable to a Labor Law §240 (1) claim”]). As to the evidence showing that Hynson’s supervisor witnessed the whole scene, and did not instruct claimant to cease using the scaffold, under the circumstance shown at trial this too precludes a finding that claimant was the sole proximate cause of his injuries. Where a plaintiff’s supervisors do not inform him that he should not perform his task by a particular method — particularly when the supervisors are fully aware of what the worker is doing — the employee’s actions cannot be said to have been the sole proximate cause of his injuries (see Biaca—Neto, 34 NY3d at 1168 [overturning grant of summary judgment to defendant on sole proximate cause grounds, due to evidence that defendants had "acquiesced" in officially-forbidden practice of "entering the building through the window cut-outs from the scaffolding," instead of using available safety devices]; Herrero v. 2146 Nostrand Ave. Assoc., LLC, 193 AD3d 421, 422 [1st Dept 2021] [plaintiff's decision to use "scaffold of an unknown contractor, instead of one provided by his employer," not sole proximate cause of injury when there was no evidence worker "knew he was expected to use only [employer's] scaffolds”] [citation and internal quotation marks omitted]; Jarzabek v. Schafer Mews Hous. Dev. Fund Corp., 160 AD3d 412, 413 [1st Dept 2018] ["Plaintiff's decision to use the makeshift ladder that his coworkers were also allegedly using was not the sole proximate cause of the accident where he was never instructed not to use it"]; see also Martin v. Niagara Falls Bridge Commn., 162 AD3d 1604, 1606 [4th Dept 2018] [there was issue for trial as to whether plaintiff did not use safety device for no good reason, in part because "plaintiff…testified that his on-site supervisor pushed him to hurry and, although there was purportedly a rule that the workers on the bridge scaffolding platform were required to be tied off 100 percent of the time, '[n]obody follow[ed] it’ “]; Amante v. Pavarini McGovern, Inc., 127 AD3d 516, 517 [1st Dept 2015] [plaintiff who fell into excavation pit was not sole proximate cause of injury when "there is no evidence that he was aware of a warning against walking through the excavation area or that he unreasonably disregarded any such warning"]). The absence of any objection by “Dave” to Hynson’s use of the scaffold as the two worked together undermines any claim — as necessary under such circumstances for the State to succeed on its defense — that claimant “knew that he was expected to use available, safe and appropriate equipment offered to him by the owner” and nonetheless “chose for no good reason not to” (see Fazekas v. Time Warner Cable, Inc., 132 AD3d 1401, 1404 [4th Dept 2015] [citations and internal quotation marks omitted] [denying defendant summary judgment for failure to make such a showing]). One test the courts have used to determine if a worker’s actions constituted the sole proximate cause for his injury is whether the choices he or she made were the “normal and logical response” under the circumstances (see Cherry v. Time Warner, Inc., 66 AD3d 233, 237 [1st Dept 2009] [discussing caselaw using this standard]). In Cherry, the Court denied defendants’ motion for summary judgment on grounds of sole proximate cause, when (as here) the plaintiff ascended a baker scaffold without complete guardrails. The Court found that, if plaintiff’s version of events was correct, it was not a “simple matter” to locate a proper scaffold, and thus it was not the “normal and logical response” for him to seek one out (id. at 239). That was true in this case as well; the claimant had a ladder with him, but it was no “simple matter” to use it, since the scaffold blocked his way and could not easily be moved. Moreover, his supervisor, who was present, did not seek to dissuade him from using the scaffold, nor did he provide him guidance on how it could address the problem, notwithstanding that it was Hynson’s first day on the job site. Given this record, I find that using the scaffold in place was a “normal and logical response.” and to the extent it reflected a mistake on Hynson’s part, it was not made by him alone, and was not the “sole proximate cause” of his injury. Defendant also points to caselaw holding that when a worker uses an instrumentality for a purpose for which it was not intended, he does so at his peril (see Def Post-Trial Mem 17). The circumstances discussed in these opinions are distinguishable from those in the present action, and one such case — Jones v. Radio City Music Hall Corp. (38 AD2d 909 [1st Dept 1972], affd on op below 31 NY2d 790 [1972]) — provides a clear illustration of why that is so. In Jones, the plaintiff fell when he used water piping installed by defendant as a scaffold to climb to a greater height, although it was never intended to bear his weight. The Court found that “one who uses an instrumentality for a purpose for which it was not intended does so at his own peril” — that is, the defendant “is not chargeable with a usage for a purpose not intended by either the defendant-appellant or its employer” (id. at 909). But that is not what occurred here, where claimant made use of the scaffold for its intended purpose: to gain access to the ceiling. For all of these reasons, I find that claimant has established that he was not the sole proximate cause of the accident by a preponderance of the evidence.7 Since all the other elements of a section 240(1) cause of action were established by claimant on its motion for summary judgment and subsequent cross motions by defendant for summary judgment and by claimant to renew, I find that the State is 100 percent responsible for claimant’s injuries recoverable under Labor Law §240(1). The remaining causes of action are dismissed as abandoned. All motions on which I have reserved decision and which are not addressed above are denied. Let interlocutory judgment be entered accordingly. The Court will contact the parties to schedule a damages trial upon the filing of this Decision. Dated: June 25, 2021
