Thomas Hage, a journeyman ironworker, was injured while working for Defoe Northeast on a contract Defoe had with the State of New York for the reconstruction of a portion of the Brooklyn-Queens Expressway.

On the morning of August 15, 2008, Mr. Hage was operating a drill when it "became demagnetized . . . spun around and crushed against his finger" (cl aff opp, ¶ 7). Hage brought suit against the State for his injury, and this is the defendant's motion to dismiss the claim.

Hage's claim is based upon Labor Law § 241 (6), under which the owner of a construction site has a non-delegable duty to provide workers with reasonable and adequate safety and protection; § 241 (6) comes into play only when a specific safety standard set by

regulation of the Commissioner of Labor is implicated (Allen v Cloutier Constr. Corp., 44 NY2d 290 [1978]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 [1993]).

As for what happened to Mr. Hage that day, we have his deposition of January 25, 2010 [*2](def affirm sup, exh D).^[FN1] Hage had taken a "man lift" 25 feet up to the elevated Expressway. Claimant began with the same work at the same place he had been doing the day before: drilling holes in existing steel so that a plate could be placed on top of what he called "old" steel.

Hage was using a Hougen drill, which is pictured on page 3 of defendant's affirmation in support; it weighed 75 pounds and was kept in the tool shed a half mile away. That morning, the Hougen was brought over by truck and sent up to Hage on the man lift. An electrical cord was run up to the drill from a generator on the ground. Claimant was wearing a hard hat, safety glasses, an orange vest and a harness tied off to a safety cable. He was working alongside another ironworker (Eric), who was performing the same task, but did not see the accident happen.

Hage explained that he would line up the hole, and turn the magnet on; "[o]nce it locks onto the steel, once it magnetizes itself, you press the on button and start working the drill."

Hage had already drilled five or six holes when he had his accident. Claimant was using his right hand to turn the wheel and lower the drill bit; his left hand was at his side. The explanation of what happened is a little cryptic, but that may reflect its suddenness and the fact that claimant had no experience or prior knowledge of something like it:

"Q. Now, at some point did you begin drilling into the steel?

A. Yes.

. . .

Q. When you began drilling was that drill still magnetized and fastened to the steel?

A. Yes.

. . .

Q. At some point did an injury occur to your left hand?

A. Yes.

Q. Did it come in contact with any portion of the drill?

A. Yes.

Q. Which portion . . .? [*3]

A. The magnet.

. . .

Q. That would be the base of the drill or the part that sits on the drill?

A. Yes.

Q. Which part of your left hand did it make contact with?

A. The middle finger and the index finger.

. . .

Q. How long did you drill the hole for before it became demagnetized?

A. Approximately two minutes.

Q. And how was it that you realized the drill became demagnetized?

A. When it crushed against my finger."

(Def affirm sup, exh D, pp. 66-67, 70 and 74-75).

The Regulations of the Commissioner of Labor

Claimant cites, as predicates to its case, 12 NYCRR §§ 23-1.10 (b) (1) & 23-13 (b) (5),^[FN2] which provide as follows:

"§ 23-1.10 Hand tools.

. . .

(b) Electrical and pneumatic hand tools.

(1) Power shut-off requirements. Electric and pneumatic hand tools shall be disconnected from power sources and the pressure in hose lines shall be released before any adjustments or repairs are made except for the replacement of bits in electric drills. Before disconnecting any air hose, the air shall be shut off. Every electric and pneumatic hand tool shall be equipped with a cut-off switch within easy reach of the operator.

§23-1.13 Electrical hazards [*4]

. . .

(b) General

. . .

(5) Guarding of switches or other circuit interrupting devices. If protection for employees consists of de-energizing circuits, employers shall cause open switches or other circuit interrupting devicesto be guarded against inadvertent closing until such employees are no longer exposed."

Defendant contends that as for § 23-1.10 (b) (1), the cutoff switch or switches were "within easy reach," pointing to claimant's deposition to that effect. With respect to the provision at issue of the regulation covering electrical hazards, defendant argues that what happened to Hage had nothing to do with de-energized circuits; that the purpose of the standard is to protect against electrical shock, citing Zak v United Parcel Service (262 AD2d 252 [1st Dept 1999]). In Zak, the plaintiff was attempting to modify a conveyer belt when its electric power was accidentally restored. The First Department dismissed the § 241 (6) claim based upon § 23-1.13 (b) (5) "because the sole purpose of the provision . . . is to prevent electrical shock to a worker by the inadvertent closing of an open switch or circuit interrupting device" (id. at 253).

Claimant maintains that he is covered by the referenced regulations, referring the Court to Shields v General Elec. Co. (3 AD3d 715 [3d Dept 2004]) and Rice v City of Cortland (262 AD2d 770 [3d Dept 1999]). In the former, Mr. Shields was performing work in connection with the construction of a building for unloading rail cars. He was engaged in fabricating and welding steel duct work "using a magnetic drill when the drill bit caught, causing the drill to spin rapidly and repeatedly strike Shields in the forearm" (3 AD3d at 716). The Third Department denied the parties' summary judgment motions, ruling that questions of fact remained as to whether the cutoff switch was within "easy reach" per § 23-1.10 (b) (1).

In Rice, plaintiff was "walking" a metal cable that had been lowered from the boom of a

drill rig to its permanent pipe casing. When he began the process of hooking it to the pipe, the cable touched the power lines overhead, and Mr. Rice was "electrocuted, sustaining electrical burns" (262 AD2d at 770). The appellate court held that the case could go forward under § 23-1.13; without delving into its specific provisions, the court described § 23-1.13 as providing "specific guidelines to protect workers against electrocution" (id. at 773).

Claimant's motion papers contain an affidavit from civil engineer Nicholas Bellizzi, who reviewed the Hougen drill's technical specs and the user guide.^[FN3] Bellizzi described the drill in detail: [*5]

"The purpose of the magnetic base is to hold the drill firmly in place during the drilling operation . . . The magnetic on/off switch energizes and de-energizes the magnetic base of the drill and activates the safety switch. The drill's motor can be started by pushing the motor start switch once the magnetic base is energized. The motor start/stop switch starts and stops the drill's motor. A loss of power will de-energize the magnetic base and deactivate the motor automatically. When power is restored, the magnetic base will re-energize. The drill's start switch must still be depressed again before the drill's motor will start."

(Cl affirm opp, exh 1, ¶¶ 5 & 6).

In Hage's deposition, the questions were framed in terms of two buttons or switches, one for power and one for magnetization, but Bellizzi indicated that the Hougen had three switches and emphasized their interrelatedness:

"The subject drill had three interrelated switches. It had a safety switch, a magnetic on/off switch and a motor start/stop switch. The safety switch enabled the operation of the motor only when the magnet is properly seated on a clean flat metal surface. This safety switch turns the motor off if it detects a lift or movement in the base of the drill. The magnetic on/off switch energizes and de-energizes the magnetic base and activates the safety switch. The motor could now be started by pushing the motor start switch. The motor start/stop switch starts and stops the motor."

(id., ¶ 7).

Section 23-1.10 requires the cutoff switch mechanism to be within reach, but obviously it also has to be functioning. Granted, its text appears to comprehend a worker intending to shut off the power before making any adjustments or repairs, or moving on to another place. But the totality of § 23-1.10 implies that everything be shut down at once; i.e., when the power is off, the worker is safe because the tool has stopped operating. That view is supported by Bellizzi's affidavit, which concludes that Hage's injuries were the "direct result of the failure of the drill's automatic power cut-off switch to operate properly and as intended" (id., ¶ 8).

Section 23-1.13 is cast in terms of "de-energizing" and "circuit interrupting." Defendant takes a narrower focus, relying upon the aforementioned Zak v United Parcel Service that this regulation pertains only when a worker suffers an electrical shock. The word "exposed" in § 23-1.13 does suggest electrical shock and not contact with a tool that has kicked back, but here also the interrelatedness of the Hougen's switches, as explained by Mr. Bellizzi, implicates what § 23-1.13 is intended to guard against - - namely, the inadvertent closing of a circuit.

Finally, even if a specific regulation obtains, defendant argues that claimant, according to his own testimony, never had a problem with any similar drill. We heard there were about ten such drills on the job site and that Hage had used all of them without incident; this included the one claimant was using on August 15, 2008, testifying that up until his accident, he saw no signs that there was anything wrong with it. Such does not necessarily refute claimant's position that defendant failed to use reasonable care and that the failure proximately caused Mr. Hage's accident.^[FN4] [*6]

In sum, the record is sufficient to support a cause of action going forward based upon Labor Law § 241 (6). In view of the foregoing and having reviewed the parties' submissions,^[FN5] defendant's motion (M-82226) to dismiss the claim of Thomas Hage (claim no. 115939) is denied.

New York, New York

January 14, 2013

ALAN C. MARIN

Judge of the Court of Claims