Robinson v. Shapiro

Decision Date23 March 1981
Docket NumberNo. 15,D,15
Parties7 Fed. R. Evid. Serv. 1752 Rita ROBINSON, individually and as Administratrix of the goods, chattels and credits that were of Joseph Robinson, Deceased, Plaintiff-Appellee, v. Rubin SHAPIRO, Harold Schneider, Irving Newman, Samuel Greenberg and Julius G. Fishman, doing business as Village Towers Company (a partnership), Defendants-Appellants. Harold SCHNEIDER, doing business as Village Towers Company (a partnership), Third-Party Plaintiff-Appellant, v. WASOFF CONTRACTORS, INC. and Modern Sheet Metal, Inc., Third-Party Defendants-Appellees. ocket 80-7158.
CourtU.S. Court of Appeals — Second Circuit

Marshall C. Berger, New York City (Thomas Gelb, Weisman, Celler, Spett, Modlin & Wertheimer, Lewis I. Wolf, Benjamin Metviner, New York City, of counsel), for defendants-appellants and third-party plaintiff-appellant.

Martin S. Rothman, New York City (Perry Pazer, David Epstein, Pazer & Epstein, P. C., Seligson, Rothman & Rothman, New York City, of counsel), for plaintiff-appellee.

William F. Larkin, New York City (Mona C. Engel, F. V. Mina, New York City, of counsel), for third-party defendant-appellee Wasoff Contractors, Inc.

Douglas E. McKeon, New York City (Kathryn Deborah Nealon, Law Offices of William F. O'Connor, Peter M. Pryor, New York City, of counsel), for third-party defendant-appellee Modern Sheet Metal, Inc.

Before OAKES and MESKILL, Circuit Judges, and CARTER, District Judge. *

MESKILL, Circuit Judge:

In this diversity action, Village Towers Company (Village Towers), a partnership owning an apartment building in New York City, appeals from a judgment of the United States District Court for the Southern District of New York, 484 F.Supp. 91, Lasker, J., entered on a jury verdict awarding plaintiff Rita Robinson $1,180,000 for the wrongful death and conscious pain and suffering of her late husband, Joseph, both New Jersey residents. Village Towers raises a host of objections to nearly every facet of the trial below, arguing that its claims against the third-party defendants were improperly removed from the jury, that certain evidentiary rulings were erroneous, that the charge was improper, and that damages were illegal and excessive. For the reasons stated below, we affirm the judgment holding Village Towers liable, but reduce the amount of the damages to eliminate the award for loss of consortium.

BACKGROUND

The facts surrounding the accident in question are largely undisputed. In early 1977, Village Towers contracted with Wasoff Contractors, Inc. (Wasoff) for the installation of a new heating system and chimney for its 19-story apartment building at 15 Charles Street in Greenwich Village. Wasoff subcontracted the chimney work to Modern Sheet Metal, Inc. (Modern), which completed the job by March 1977. Nearly ten months after the job was finished, portions of the chimney blew down during a severe windstorm and fell on the roof of the apartment building's adjoining one-story garage. The next day, Village Towers called Wasoff, which had guaranteed the work for one year; Wasoff, in turn, contacted its subcontractor, Modern, and Modern dispatched a three-man crew, led by the decedent, to clean up the debris and appraise the damage.

A clear description of the premises is essential to understanding the events that followed. Around the edge of the garage roof was a brick "parapet wall" approximately fourteen inches thick and three to four feet high. See plaintiff's photographic exhibit 2, Appendix 1. Along the front of the garage to the edge of the building, an iron fence extended above the parapet wall an additional three feet. A metal staircase led from the alleyway at ground level to a gap in the parapet wall. In this gap was a large iron "gate," fashioned in the same style as the iron fence and extending a foot above the fence, or about four feet higher than the parapet wall. This "gate" was not hinged; rather, it was wedged into the gap with wooden shims and tied to the surrounding fence with electrical wire. Thus, the "gate" could be "opened" only by taking it down.

The Modern crew arrived around 9:15 a. m. on January 9 and, after a brief discussion between Robinson and John Rendo, the building superintendent, they began work. To get onto the roof, the Modern workmen had to walk up the metal staircase to the "gate" and, using the "gate" for support, hoist themselves onto the parapet wall. Then they walked along the parapet wall to the building's side, where they stepped through an opening in the fence onto the Rita Robinson, Joseph's widow and administratrix of his estate, brought a wrongful death action against Village Towers for loss of support and services and loss of consortium, and a survival action for her husband's pain and suffering. Mrs. Robinson alleged that Village Towers breached its common law duty to maintain reasonably safe premises for its invitees and breached its statutory duty as owner of the premises to provide workmen with a safe place to work, pursuant to sections 240 1 and 241(6) 2 of New York's Labor Law. Village Towers impleaded Wasoff and Modern, claiming that Wasoff was also under a statutory duty to provide a safe place to work and contending that Village Towers was entitled to contribution from the third-party defendants for any sums awarded to the plaintiff. Thereafter, the plaintiff amended her complaint to assert a claim against Wasoff for negligence and for violation of its nondelegable statutory duty under §§ 240 and 241(6) to provide a safe place to work for employees of its subcontractors.

garage roof. During the course of the day, officers of Modern visited the premises and reached the roof in the same manner. Around 3:00 p. m., the crew decided to stop for the day because of inclement weather. Robinson was the last to leave. As he was using the gate to step down onto the staircase, the gate gave way and Robinson fell to the bottom of the stairs with the gate on top of him. Robinson was taken to a nearby hospital, where he died three days later as a result of head injuries sustained in the fall.

At trial, much of the evidence concerned the parties' knowledge of and responsibility for the dangerous gate. Samuel Greenberg, an owner of Village Towers, testified that a Village Towers maintenance man had been responsible for reinstalling the fence and gate after the initial construction of the chimney in early 1977. James Castro, a member of Robinson's crew on the day of the accident, testified that the gate appeared to be locked and securely fastened to the parapet wall. Harold Shictman, an officer of Modern who also climbed onto the roof, testified that the gate seemed "sturdy enough." Craig Wasoff, an officer of Wasoff, also visited the site, but could not recall how he gained access to the garage roof. Finally, Castro testified that Robinson had told him prior to the accident that Superintendent Rendo had forbidden the crew to remove the gate, because Rendo used the roof area as a makeshift pen for his dog, and the resultant opening would allow the dog to escape. Castro testified further that Robinson also had said that Rendo refused to let the crew reach the garage roof through his apartment window because he did not want his rugs soiled.

At the close of the evidence, Judge Lasker granted a directed verdict dismissing Village Towers' claims against the third-party defendants, ruling that no reasonable juror could find negligence on the part of Wasoff and Modern. 484 F.Supp. at 93. The court declined, however, to dismiss the plaintiff's complaint against Wasoff, despite its ruling on Village Towers' cross-claims, to "obviate the need for a new trial in the event the Court of Appeals disagreed." Id. at 94. In response to special interrogatories, the jury found that both Village Towers and Wasoff had been negligent and that both had violated §§ 240 and 241(6), and awarded damages of $1,180,000, representing $750,000 for loss of support and services, $400,000 for loss of consortium, and $30,000 for Robinson's pain and suffering. The jury expressly found that the decedent had not been contributorily negligent, and apportioned damages 88 percent to Village Towers and 12 percent to Wasoff. Thereafter, the court granted Wasoff's motion for judgment n. o. v. and set aside the jury verdict finding Wasoff 12 percent responsible for Robinson's death. Judge Lasker pointed out that there was no more evidence of negligence on the plaintiff's claim against Wasoff than there had been on the defendant's third-party claim, and concluded that it was unnecessary under the circumstances to determine whether Wasoff was absolutely liable to the plaintiff under §§ 240 and 241(6) of the Labor Law. Village Towers' motion for a new trial was denied, and it now appeals.

DISCUSSION
A. The Directed Verdict

New York law, which we must apply in this diversity case, allows full indemnification or proportionate contribution among joint tortfeasors, Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972), even where the party seeking indemnity or contribution is held liable for breach of a nondelegable duty, Kelly v. Diesel Construction, 35 N.Y.2d 1, 6-7, 358 N.Y.S.2d 685, 315 N.E.2d 751 (1972); Rogers v. Dorchester Associates, 32 N.Y.2d 553, 564-67, 347 N.Y.S.2d 22, 300 N.E.2d 403 (1973); see also Allen v. Cloutier Construction Corp., 44 N.Y.2d 290, 301, 405 N.Y.S.2d 630, 376 N.E.2d 1276 (1978). It is settled, however, that under New York law a party seeking contribution must prove that the party from whom contribution is sought is at least partially responsible for the accident. Dole v. Dow Chemical Co., supra, 30 N.Y.2d at 148-49, 153, 331 N.Y.S.2d 382, 282 N.E.2d 288; Stevens v. Consolidated Edison Co., 63 A.D.2d 979, 980, 405 N.Y.S.2d 771 (2d Dep't 1978). In dismissing the third-party claims, the court stated, "Bearing in mind that Village Towers bore the burden of proving...

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