June 2004
By ALEXANDER A. MIUCCIO, CIC Legal Counsel
Protecting workers from vehicular traffic on highway construction jobs is of the utmost concern. In a recent case brought by a construction worker who was struck by an automobile at an intersection in which the work area was set off by reflective cones, a judge in central New York held that the cones did not constitute the "barricade" or "fence" required by the Industrial Code (12 NYCRR ¤ 23-1.29). This decision should cause contractors who work on or near roadways to re-evaluate and revise their traffic control procedures.
Background
The worker in Streeter v. Kingston and the County of Onondaga was struck by a vehicle while kneeling at work in an area set off from a roadway intersection by reflective cones. The motorist had proceeded through a left-turn lane blocked off with barrels up to the intersection, but denied seeing the worker or the four 29" high reflective cones that were used to cordon off the immediate work area.
The injured worker moved for summary judgment as to liability against the motorist and the County of Onondaga, as owner of the intersecting roadways. The worker argued that the county had failed to provide reasonable and adequate protection and safety to him, as required by Labor Law ¤ 241(6). As for the motorist, the worker noted that she had pleaded guilty to a traffic ticket under Vehicle and Traffic Law ¤ 1160(d) (failure to turn as marked).
Decision
The court denied summary judgment for the worker, reserving for the jury the ultimate question of whether the county failed to use due care by using traffic cones, and not a barricade or fence, to set off the work area in which the accident occurred. The court determined, however, that the jury at trial would be instructed that the county had failed to comply with applicable traffic control regulations, and that such failure should be considered as some evidence of negligence.
Labor Law ¤ 241(6) provides that "All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein." Regulations known as the "Industrial Code," 12 NYCRR ¤ 23-1.29(a), provide that "Whenever any construction, demolition or excavation work is being performed over, on or in close proximity to a street, road, highway or any other location where public vehicular traffic may be hazardous to the persons performing such work, such work areas shall be "so fenced or barricaded as to direct such public vehicular traffic away from such area, or such traffic shall be controlled by designated persons."
In connection with the worker's motion for summary judgment, the parties submitted opposing expert witness affidavits. The worker's expert noted, among other things, that the cones, being lower than the front hoods of vehicles passing through the construction area, violated the Manual of Uniform Traffic Control Devices ("MUTCD") requirement that traffic control devices not be obscured by construction equipment or vehicles. To the contrary, the county's expert argued that cones are "channelizing" devices approved by the MUTCD and, as 28" high cones are sufficient in "high-speed" areas, the county's use of 29" cones in the plaintiff's "non-high-speed" work area was more than sufficient.
Brushing aside both experts' views, the court formulated the critical question as follows: although traffic cones are certainly approved "channelizing" devices, do they constitute a "fence or barricade," as called for in Industrial Code ¤ 23-1.29(a), or is something more required to keep vehicles from intruding into work zones? The court focused on the regulation's definition of barricades, as being "for use to physically exclude traffic from all or part of a roadway" and as "provid[ing] more positive traffic separation and target value than other channelizing devices." The regulation describes "barricades" as "portable or fixed devices consisting of from one to three diagonal striped horizontal rails" (and having "orange and white reflectorized stripes," if intended for use in highway work zones). The court also cited language in the regulations that cones, despite advantages such as portability and visibility, "provide little separation of traffic flow from adjacent areas occupied by other objects, machinery, or workers."
The court denied summary judgment as against the county, because Labor Law ¤ 241(6) does not impose absolute liability for any injury arising from its breach, and a breach of an administrative regulation does not establish liability without proof of negligence. Although the county was able to avoid summary judgment at the motion stage of the lawsuit, the court determined for purposes of the trial that cones (or a series of cones) do not make a "barricade" or "fence." According to the court, the Industrial Code had therefore been violated, and the jury would be so instructed at trial. Thus, while formally a jury will make the ultimate determination regarding whether the violation established a failure to use due care, the instruction will assuredly carry great weight in favor of the injured worker. Left for the jury, also, was whether a failure to use reasonable care was a substantial factor in causing the worker's injuries. The motorist likewise avoided summary judgment, because a guilty plea on a traffic charge does not bar the jury from considering such explanation as the motorist may offer at the trial.
Commentary
Although not binding on courts throughout the state, this case commands attention. Its central holding is persuasive: the Industrial Code clearly requires a "barricade" sufficient "to physically exclude traffic," and traffic cones do not suffice because, as the MUTCD acknowledges, they "provide little separation of traffic flow." While contractors may incur some trouble and added cost in erecting sturdier barricades at roadway construction sites, surely this is preferable to having to convince a jury hearing a case involving a seriously injured worker that a violation of safety regulations did not constitute a failure to use due care.
Contractors should re-examine their traffic control procedures, in light of this court's decision, which warns that work sites must be "fenced or barricaded." Work sites should not be set off with a flimsy line of cones Ñ if the contractor wants to comply with the Labor Law's mandate to provide employees and others with adequate protection and safety.
About the author: Mr. Miuccio is a partner in the law firm of Goldberg & Connolly, and general counsel to the Construction Industry Council of Westchester and Hudson Valley, Inc. Geoffrey S. Pope, a senior associate with the firm, assisted in the preparation of this article.