18 Misc. 2d 831 | N.Y. Sup. Ct. | 1959
The actions herein, which were tried jointly before me, are brought against the defendant, New York City Transit Authority, by Esther Chaney, as administratrix of the goods, chattels and credits of Walter Chaney, deceased, for the wrongful death of said Walter Chaney and for his conscious pain and suffering, and by Kostos Godulas, for damages for personal injuries.
Decision was reserved on motions made by the defendant and third-party defendant to dismiss the complaints and for directed verdicts, and the case was submitted to the jury. Verdicts having been rendered in favor of both plaintiffs, the defendant and third-party defendant have moved to set aside the verdicts.
All motions on which decision was reserved are hereby denied.
The uncontradicted facts are to the effect that on May 10, 1955, both the decedent and plaintiff Godulas were working
At approximately 2:15 p.m., while both Chaney and Godulas were working from the kickers, a passenger coming through the mezzanine passage area struck the end of the kicker which extended into that mezzanine area, causing both men to fall from the kickers to the station platform below, a distance of approximately 20 feet. Chaney, who fell first onto the roof of an incoming train, and then to the station platform, died in a hospital later that afternoon; and Godulas, who fell directly to the station platform below, sustained severe injuries. The kickers did not fall when the men did.
The evidence indicates that the immediate entrances to the stairways comprising the stair well were blocked off. Factually, the most disputed issue is whether there were ropes around that
During the painting operation three of defendant’s employees were operating as flag men on the station platform and tracks. Their function was to protect the painters from train movements within the station, and they used safety signals and other equipment for that purpose.
The evidence further indicates that the defendant had one Peter McGuire continually on the job as a paint inspector. He testified in his examination before trial, portions of which were read at the trial, that he was on the job daily from 7:00 a.m. to 4:00 p.m., that it was his duty to see that the defendant got a good paint job according to specifications, and that as part of his job he observed the method and means used in doing the work. He also testified that it was his duty to see that the painters did not interfere with the passengers, and in that connection he would tell them to rope off the area where they were working if they did not rope it off themselves. Plaintiff’s witness Berman, the union representative on the job for Campbell, in referring to McGuire’s duties, testified that it was the inspector’s job to see that all safety precautions were taken, that he painters were not too near the track and that he would check the rigging to see that the ladders were firm and secure.
While the evidence indicates that McGuire was not present at the time of the accident, and he stated that he did not recall seeing the rigging set up, he did testify that when he left, at about one o’clock of that afternoon, he knew that the painters were working around the stairway.
In response to the question by counsel for Chaney: “Were you aware when you left the platform at about 1:00 o ’clock that the painters would be working on the ceiling that afternoon? ”
As to his qualifications, he testified that he was “ familiar with all the rigging that a painter uses pertaining to that kind of work ”. He also admitted that part of his duties included advising the flagmen where the painters would be working. There is testimony on the part of defendant’s witness, Poitras, Campbell’s foreman on the job, that the scaffolding involved was put up in the morning, which would have been while McGuire admittedly was present.
In connection with the rigging itself, Poitras testified that it was an approved method of putting up the scaffold. His testimony in regard to the extension of the kicker beyond the end of the railing was that it ‘ ‘ has to extend over the rail, for safety purposes ”. Plaintiff’s witness, Berman, also testified that this was the proper type of rigging for that spot. McGuire, too, indicated that this was the usual type of scaffold for painting ceilings.
The only testimony to the effect that there was anything unsafe about the rigging was Berman’s testimony that it was bad practice not to tie down the ends of the kickers.
The court submitted the case to the jury on the theory that defendant owed to these men, employees of an independent contractor, the duty of exercising reasonable care to make safe the place of work provided by it and the ways and approaches to the place of work. The jury was clearly instructed that the scaffold, or kickers, on which the men were working, were pieces of equipment or apparatus supplied by the contractor, and that, with regard to such equipment or apparatus, defendant had no duty to make them safe. The jury was further instructed that with regard to the two men here involved, the defendant did have a duty to exercise reasonable care in maintaining the ways and approaches that were necessary and suitable for them to perform their duties in a condition of reasonable safety.
Any discussion of negligence in the instant case must necessarily determine what duty was owed by the defendant to the decedent and Godulas. ‘ ‘ ‘ In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury ’ ’ ’ (Palsgraf v. Long Is. R. R. Co., 248 N. Y. 339, 342). The facts here present focus attention on the “ duty to provide a safe place to work ”.
Section 200 of the Labor Law is a statutory recognition of the common-law obligation and is declaratory of the common law to the extent that it imposes upon the employer the duty of exercising reasonable care. (Sgandurra v. 220 Estates, 185 Misc. 283, affd. 270 App. Div. 834.)
Judicial refinements of the general rule have, in a negative sense, delineated the physical area to which the duty extends. Thus, it has clearly been held that the employer has no duty of exercising reasonable care to make safe scaffolds, or other apparatus or equipment, supplied by the independent contractor to its own employees, and that such agencies do not come within the purview of the duty laid down by section 200 of the Labor Law. (Hess v. Bernheimer & Schwartz Brewing Co., 219 N. Y. 415; Iacono v. Frank & Frank Contr. Co., 259 N. Y. 377.) It is important to evaluate the precise emphasis to be placed upon such limitation in its relationship to the general rule. This can perhaps be best accomplished by an appraisal of the factual patterns which have called the exception into play. Most pertinent is the finding that in these cases the proximate cause of the accidents involved was a defect in the very scaffold or apparatus to which the duty did not apply. (See Gambella v. Johnson & Sons, 285 App. Div. 580; Butler v. D. M. W. Contr. Co., 286 App. Div. 828, affd. 309 N. Y. 990.) In the instant case, the evidence is more than ample to sustain a contrary conclusion — that the proximate cause of the accident was not a defect in the equipment, but rather, dangerous conditions external to the equipment and existing in the employer’s plant. A review of the record indicates that the only evidence submitted in connec
Thus, we are faced with a fact pattern wherein the employees of the independent contractor were working on planks or kickers, which were part of their own employer’s “ plant ”, and which the instant defendant had no duty to make safe, but the proximate cause of the accident was not a defect in that equipment, but rather an unsafe condition external to the equipment, and on the contractee’s premises. While this fact pattern does not fall into any easily discernable niche, a realistic appraisal of the meaning of the duty under section 200 of the Labor Law indicates that application of the section is warranted under these circumstances.
The defendant seeks to put a distorted and unduly restrictive interpretation on that duty. It is apparently defendant’s contention that its duty to provide a ‘ ‘ safe place to work ’ ’ is confined to the exact geographical situs where the work is being performed at the time of the accident, in this case the kickers or planks on which decedent and Go dulas were working, and that since defendant had no duty to make such kickers reasonably safe, the only duty which it owed to the two painters was to provide them -with safe approaches to the work, in the sense of “ passageways provided for use of the workmen in reaching and leaving the place where they are working ”. Defendant’s contentions are untenable and at variance with the precedents and the fundamental meaning of the duty involved.
Looking first to the meaning of “ ways and approaches ” to the place of work, the case of Caspersen v. La Sala Bros. (253 N. Y. 491) is of particular pertinence. In that case, the plaintiff, an employee of an independent contractor, was engaged at his work of installing an elevator in the defendant’s building. Beside the elevator well, where he was working, was a shaft for a stairway. While intent upon his work, he was struck by a brick which fell from a scaffold on which other workmen were
The Gaspersen case talks of the falling brick as ‘ ‘ perils unknown to the worker ” (p. 495). To a painter perched on narrow planks more than 20 feet from the ground, and intently engaged in his work of painting an overhead ceiling, a moving passenger is much the same type of “ unknown peril ”.
Indeed, in seeking to confine the “ place of work ” exclusively to the planks and kickers alone, to which, concededly, it had no obligation, the defendant is again propounding too narrow a view and one which would evade the fundamental intent of the statute. There is no geographical formula which can be used to delineate the “place of work”, and the physical facts of each case must necessarily be determinative, but the precedents are helpful in establishing guides. The descriptive words used in the leading authorities wherein the rule is enunciated are broad rather than limiting ones. In Haefeli (255 N. Y. 442, supra) the duty is to render “ the premises ” reasonably safe
Of course, an essential consideration in regard to whether or not the employer has a duty to exercise reasonable care in a particular locale revolves upon the issue of control of the area. If the area where the accident occurred, even if it were part of the employer’s plant, were turned over to the contractor and was solely within the contractor’s control, then the employer would be under no duty to the contractor’s employees with regard to that area. {Zucchelli v. City Constr. Co., 4 N Y 2d 52; Olsommer v. Walker & Sons, 4 A D 2d 424, affd. 4 N Y 2d 793.) In the instant case, however, the facts are quite to the contrary. While the work was being performed, the defendant continued to carry on its business of operating a subway station as usual. It continued in full and complete control of its station and in complete control of train and passenger movements. There is no evidence whatsoever to indicate that control of any portion of the premises was given over to the contractor, or that the contractor had any authority to direct passenger traffic.
Thus, whether the mezzanine area around the projecting kicker be considered asan“ approach ’ ’ to the ‘ ‘ place of work ’ ’, or a part of the ‘ ‘ place of work ’ ’ itself, it is clear that under the circumstances here, where the defendant retained control of that area, it had the duty to exercise reasonable care to make that area reasonably safe for the decedent and G-odulas.
Parenthetically, it is interesting to note that the defendant itself recognized that it did have a duty to provide for the safety of these men in connection with parts of the station within its control and geographically away from the exact place where the men were working. In that regard, it set up an elaborate system of controls and flagmen to protect the painters against train movements, an activity which was going on in an area physically removed from the precise location where they were working, but which was, significantly, taking place in a part of the defendant’s “ plant ”. Unfortunately, it failed to exercise
Turning to defendant’s contention that the obligation of maintaining the mezzanine area around the kicker in a reasonably safe condition lay on the contractor, and its employees, such argument also fails to provide the immunity which it seeks. The duty imposed upon the defendant to provide a safe place to work, and safe ways and approaches, is a nondelegable one. (Wohlfron v. Brooklyn Edison Co., 238 App. Div. 463, supra; Adams v. Brell Constr. Corp., 110 N. Y. S. 2d 682; Kuhn v. Carlin Constr. Co., 154 Misc. 892.) It cannot discharge that duty by shifting the burden to others, and particularly to those for whose very benefit the obligation exists. To hold otherwise would nullify and render meaningless the duty legally imposed upon it. The facts present here further point up the infirmity of this position. Under all the circumstances herein, reasonable care to provide a reasonably safe mezzanine area, while the painters were working from the kickers, might well have required complete suspension of passenger traffic through the turnstiles at the 184th Street entrance, or, alternatively, effective blocking of the area to provide the necessary safety might have required the placement of ladders, or other equipment, in such a way as to materially interfere with passenger movements. Certainly the contractor, and his employees, had neither the authority, nor requisite control of the premises, to institute such measures. As indicated, complete control of the station, and its operation, remained in the defendant and only it could have taken such steps. The duty to make the mezzanine area reasonably safe rested squarely upon the defendant and because such duty was nondelegable, the defendant alone is answerable if that duty was improperly discharged, whether it acted itself to perform the duty or whether it sought to use the assistance of others in the performance of the duty. (See discussion in Sciolaro v. Asch, 198 N. Y. 77.)
Concluding that the defendant herein had the responsibility to make the mezzanine area reasonably safe, there is ample evidence to sustain the jury’s finding that the defendant failed to properly discharge its oblig'ation. In determining whether or not ordinary care has been exercised, the test is the foreseeability of the risk. (Le Roux v. State of New York, 307 N. Y. 397 and cases cited therein.) Ordinary care must be in proportion to the danger to be avoided and the consequences that
The fact that the specific cause of the accident was the conduct of a particular passenger does not operate to relieve the defendant under the circumstances here present. If such conduct was reasonably to be anticipated then there was no break in the chain of causation of such character as to relieve the actor from liability. (Carlock v. Westchester Light. Co., 268 N. Y. 345; Ranney v. Habern Realty Corp., 281 App. Div. 278, affd. 306 N. Y. 820; Prosser, Law of Torts [2d ed.], § 49, p. 268.) Certainly the tendencies of average subway passengers to be careless, to engage in pushing and jostling, and to fail to look carefully where they are going, are all well known, particularly to one in defendant’s position. When such persons are permitted
While the foregoing is based upon that version of the evidence which indicates that there were no ropes, or other protection, around the projecting end of the kicker, the same conclusion would ensue even if the jury accepted that version of the evidence which was to the effect that the area around the end of the kicker was in some way roped off. There was sufficient evidence from which the jury could have found that such roping off alone was not sufficient to make the area reasonably safe. It was quite foreseeable that passengers anxious to catch an incoming train might duck under the ropes, and that if ropes alone were used as barriers, the posting of guards would also be necessary. Indeed, there is testimony showing that passengers in the past had ducked under ropes where they were used alone. Under the circumstances here, and in view of the nature of the work being performed, the jury could have found that reasonable care required a complete suspension of passenger traffic through the 184th Street entranceway for the period necessary to paint the ceiling over the stair well, particularly since the painting of the ceiling was taking place during non-rush hours, and could have been completed in a relatively short time. Furthermore, this was not the sole entranceway to the station. In any event, there are sufficient facts here present to sustain the jury’s finding that the defendant failed to exercise the reasonable care necessary under the circumstances to properly discharge the duty which it owed to Chaney and G-odulas.
As to notice, the evidence sustains a finding that the defendant was aware of the existence of a condition of danger in the mezzanine area. It was aware of the type of work being performed by the contractor’s employees. It had a supervisor continually on the job who knew where in the station the men were working, and whose duties, by his own testimony, included notifying the flagmen of the specific whereabouts of the painters.
Therefore, since the defendant had a duty to exercise reasonable care to make the mezzanine area reasonably safe for Chaney and Godulas, and since the evidence is ample to sustain the conclusion that defendant failed to exercise the requisite care under the circumstances after having notice of the existence of a dangerous condition, the jury’s verdicts herein should not be disturbed.
The claim of the New York City Transit Authority against George Campbell & Co., the third-party defendants, was taken from the jury and reserved for disposition by the court, on the consent of the parties. The Transit Authority seeks judgment over on the basis of an indemnity provision contained in the contract between the two, in evidence as plaintiff’s Exhibit 5. The pertinent provision is as follows:
Responsibility for Injuries to Persons and Property. The Contractor shall he solely responsible for all .injuries to person or damages to property occurring on account of or in connection with the work hereunder and shall indemnify and save harmless the Authority from and against liability, loss and expense (including, but not limited to, loss and expense because of liability for the payment of Workmen’s Compensation under the Workmen’s Compensation Law of the State of New York) arising out of injuries (including death) to persons (including, but not limited to, employees of the Authority and employees of the Contractor) or damage to property (including, but not limited to, property of the Authority) occurring on account of or in connection with the work hereunder, irrespective of the actual cause of the accident*844 and irrespective of whether it shall have been due to negligence of the Contractor or negligence of the Authority, their respective agents, servants or employees. The liability of the Contractor under this contract is absolute and is not dependent upon any question of negligence on the part of the Contractor, or on the part of the Authority, or their respective agents, employees, servants or contractors. The approval by the Engineer of the methods of doing the work or the failure of the Engineer to call attention to improper or inadequate methods or to require a change in methods or to direct the Contractor to take any particular precautions or to refrain from doing any particular thing shall not excuse the Contractor in ease of any such injury to person or damage to property.
The terms of the provision are unambiguous, and clearly envision indemnification of the Transit Authority in the instant type of situation (see Fuller Co. v. Fischbach & Moore, 7 A D 2d 33).
The third-party plaintiff is intitled to judgment against the third-party defendants in accordance with the respective verdicts, and the clerk is directed to enter same in accordance herewith.