Allen v. Cloutier Const. Corp.

• Decision Date: 02 May 1978
• Citation: 376 N.E.2d 1276,405 N.Y.S.2d 630,44 N.Y.2d 290
• Court: New York Court of Appeals Court of Appeals
• Parties: , 376 N.E.2d 1276 Beverly J. ALLEN, Individually and as Administratrix of the Estate of Edward P. Allen, Jr., Deceased, Respondent, v. CLOUTIER CONSTRUCTION CORP. et al., Appellants, and J. Ellrott Excavating Contractor, Inc., Respondent. Richard W. MYERS, as Administrator of the Estate of Jay B. Myers, Deceased, Respondent, v. CORNELL UNIVERSITY, Defendant-Appellant and Third-Party Plaintiff-Respondent, A. Friederich & Sons Co., Inc., Third-Party Defendant-Appellant.

Page 630

405 N.Y.S.2d 630

44 N.Y.2d 290, 376 N.E.2d 1276

Beverly J. ALLEN, Individually and as Administratrix of the Estate of Edward P. Allen, Jr., Deceased, Respondent, v. CLOUTIER CONSTRUCTION CORP. et al., Appellants, and J. Ellrott Excavating Contractor, Inc., Respondent.

Richard W. MYERS, as Administrator of the Estate of Jay B.

Myers, Deceased, Respondent, v. CORNELL UNIVERSITY, Defendant-Appellant and Third-Party

Plaintiff-Respondent,

A. Friederich & Sons Co., Inc., Third-Party Defendant-Appellant.

Court of Appeals of New York.

May 2, 1978.

Raymond C. Green, Peter M. Pryor, New York City, and Andrew F. Capoccia, Albany,

for Cloutier Construction Corp., appellant in the first above-entitled action.

Dale M. Thuillez and Thomas A. Ford, Albany, for Philip J. Sgarlata and another, appellants in the first above-entitled action.

Daniel R. Santola, Morris J. Bloomberg and Philip G. Jupiter, Albany, for Beverly J. Allen, respondent in the first above-entitled action.

David F. Kunz, Albany, for J. Ellrott Excavating Contractor, Inc., respondent in the first above-entitled action.

Robert H. Reeder, Binghamton, for defendant-appellant and third-party plaintiff-respondent in the second above-entitled action.

M. Bates Davidson, Elmira, for respondent in the second above-entitled action.

Manley H. Thaler, Ithaca, for third-party appellant-defendant in the second above-entitled action.

OPINION OF THE COURT

COOKE, Judge.

Both of these appeals arise out of construction site accidents involving workmen killed as a result of the collapse of excavation trenches. Actions were commenced against the respective owners upon whose property the accidents occurred, notwithstanding that the actual work was at all times performed and directed by others. The issue presented in each case is whether an owner or general contractor may be held to answer for the damages suffered by a workman as a result of a violation of subdivision 6 of section 241 of the Labor Law absent a showing that they controlled, directed or supervised the work site. The Appellate Division held that the 1969 amendment to section 241 (L.1969, ch. 1108, § 3, eff. July 25, 1969) imposed liability on an owner even in the absence of control and direction of the work being performed by subcontractors. We affirm.

Defendants Philip and Patricia Sgarlata engaged the Cloutier Construction Corp. for the erection of a home on their land in the Town of Colonie. Cloutier in turn subcontracted the plumbing and heating work to Edward Allen. On August 17, 1973, the walls of a trench in which Allen was installing a sewer line caved in, causing injuries from which he subsequently died. An action for wrongful death and conscious pain and suffering was commenced by his estate representative against the Sgarlatas, as owners, Cloutier, as contractor, and the J. Ellrott Excavating Contractor, Inc., the lessor and operator of the equipment which had dug the trench. Each defendant answered and cross-claimed against the others. The Sgarlatas and Cloutier moved for summary judgment dismissing the complaint on the ground that an owner and general contractor owe no duty to a subcontractor in the absence of any control or supervision over the subcontractor's work.

Defendant Cornell University, the owner of property on its campus at Ithaca, contracted with third-party defendant A. Friederich & Sons Co., Inc., to erect an addition to the Wilson Synchrotron Laboratory. On November 19, 1971, employees of Friederich, one of whom was Jay B. Myers, were engaged in breaking concrete out of an old foundation so that a new footing and wall might be installed. An earthen embankment gave way and collapsed into the trench in which Myers was working causing his death. Cornell moved for summary judgment dismissing the complaint on the ground that it had no direct control over the performance of the work and that the area involved was not a common work area.

Plaintiffs in both cases predicate the owners' liability on the post-1969 terms of subdivision 6 of section 241 of the Labor Law. The statute presently provides:

"All contractors and owners and their agents, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements: * * *

"6. 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 or lawfully frequenting such places. The board may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work shall comply therewith" (L.1969, ch. 1108, § 3).

To determine whether liability may be imposed on a noncontrolling owner pursuant to section 241, it is necessary to trace the long, and somewhat checkered, history of the statute, as well as its relationship to other worker safety legislation. Prior to 1962, section 241 was essentially identical to the present statute, although it contained no counterpart to the present subdivision 6 with respect to shoring excavation work. That statute (L.1909, ch. 36, § 20, as amd. by L.1911, ch. 693; L.1913, ch. 492; L.1919, ch. 545, § 2), consisted of seven subdivisions, the first five of which contained specific, positive commands to all contractors and owners to provide protection deemed appropriate by the Legislature in connection with the construction or demolition of buildings or any excavation in connection therewith. The duty imposed upon owners and general contractors by these subdivisions was "a flat and unvarying" one (Koenig v. Patrick Constr. Co., 298 N.Y. 313, 318, 83 N.E.2d 133, 135), rendering them liable for a violation of their proscriptions even though the actual work might have been performed by an independent contractor (Semanchuck v. Fifth Ave. & 37th St. Corp., 290 N.Y. 412, 419, 49 N.E.2d 507, 508; Bruno v. Almar Residences Corp., 13 A.D.2d 232, 236, 216 N.Y.S.2d 157, 161, affd. 11 N.Y.2d 988, 229 N.Y.S.2d 426, 183 N.E.2d 703). This nondelegable duty was made designedly broad to reach those who were thought to have the over-all responsibility for the construction of a building in which the Legislature deemed a particular employment inherently hazardous, irrespective of fault and despite lack of control. Thus, a violation of any of these five subdivisions, causing injury to a member of the protected class was held to have imposed absolute, first instance liability upon an owner or general contractor unrelated to questions of negligence (Joyce v. Rumsey Realty Corp., 17 N.Y.2d 118, 122, 269 N.Y.S.2d 105, 106, 216 N.E.2d 317, 318; Walters v. Rao Elec. Equip. Co., 289 N.Y. 57, 61, 43 N.E.2d 810, 811; Berla v. Zambetti, 235 App.Div. 464, 465, 257 N.Y.S. 179, 180; cf. Haskins v. City of New York, 28 A.D.2d 656, 657, 280 N.Y.S.2d 773, 776).

Subdivisions 6 and 7 of the pre-1962 version of section 241 proceeded on a different basis. These were the rule-making subdivisions, and provided generally that the Board of Standards and Appeals might make rules for the protection of workmen. Whereas a violation of any of the first five subdivisions gave rise to absolute liability, a violation of the administrative rules promulgated pursuant to subdivisions 6 and 7 " 'was simply some evidence of negligence which the jury could take into consideration with all the other evidence bearing on that subject' " (Conte v. Large Scale Dev. Corp., 10 N.Y.2d 20, 29, 217 N.Y.S.2d 25, 29, 176 N.E.2d 53, 57, quoting Schumer v. Caplin, 241 N.Y. 346, 351, 150 N.E. 139, 140). This disparity as to the effect of violations was based on the well-recognized principle that there is a clear distinction between the effect of a violation of an administrative regulation promulgated pursuant to statute, and a violation of a substantive provision of the statute itself (Bergen v. East 84th St. Constr. Co., 16 N.Y.2d 644, 261 N.Y.S.2d 80, 209 N.E.2d 121; Prosser, Torts (4th ed.), § 36, pp. 197-198).

In 1962, the Legislature amended section 241 (L.1962, ch. 450, § 3, eff. Oct. 1, 1962), and substituted in place of the prior seven subdivisions, one paragraph which set forth general duties as to work operations for owners, general contractors and, for the first time, subcontractors to provide "reasonable and adequate protection and safety to the persons employed (in the construction, demolition or excavation of a...