Calla v. Shulsky

• Decision Date: 29 June 1989
• Citation: 543 N.Y.S.2d 666,148 A.D.2d 60
• Parties: Vincent CALLA and Angela Calla, Plaintiffs-Respondents, v. Doris R. SHULSKY and Herbert Feiler, as Trustees of Article Third under the Last Will and Testament of Elgin Shulsky, Deceased, Marvin R. Shulsky and Doris R. Shulsky, Linda A. Matlins and Marvin R. Shulsky, as Trustees under Article Fourth Trust under the Last Will and Testament of Elgin Shulsky f/b/o Linda Matlins and Linwood Mall Associates, Elgin Shulsky d/b/a Linwood Mall Associates, Marvin R. Shulsky d/b/a Linwood Mall Associates, Linwood Mall Associates and Hector DeJesus, Defendants-Appellants. Vincent CALLA and Angela Calla, Plaintiffs-Respondents, v. Doris R. SHULSKY, et al., Defendants and Third-Party Plaintiffs, v. The CLIMATE SHOP, INC., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 666

543 N.Y.S.2d 666

148 A.D.2d 60

Vincent CALLA and Angela Calla, Plaintiffs-Respondents, v. Doris R. SHULSKY and Herbert Feiler, as Trustees of Article

Third under the Last Will and Testament of Elgin Shulsky,

Deceased, Marvin R. Shulsky and Doris R. Shulsky, Linda A.

Matlins and Marvin R. Shulsky, as Trustees under Article

Fourth Trust under the Last Will and Testament of Elgin

Shulsky f/b/o Linda Matlins and Linwood Mall Associates,

Elgin Shulsky d/b/a Linwood Mall Associates, Marvin R.

Shulsky d/b/a Linwood Mall Associates, Linwood Mall

Associates and Hector DeJesus, Defendants-Appellants.

Vincent CALLA and Angela Calla, Plaintiffs-Respondents, v. Doris R. SHULSKY, et al., Defendants and Third-Party Plaintiffs, v. The CLIMATE SHOP, INC., Third-Party Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

June 29, 1989.

Neal M. Glazer, of counsel (Warren C. Nitti, with him on the brief, Harold M. Foster and D'Amato & Lynch, attys.) for defendants-appellants.

Martin Diennor, of counsel (Abraham Fuchsberg, with him on the brief, Fuchsberg & Fuchsberg, attys.) for plaintiffs-respondents.

Steven B. Prystowsky, of counsel (Eric A. Portuguese, with him on the brief, Lester Schwab Katz & Dwyer, attys.) for third-party defendant-appellant.

Before KUPFERMAN, J.P., and ROSS, MILONAS, WALLACH and RUBIN, JJ.

RUBIN, Justice.

Defendants, with the exception of Hector DeJesus, are the owners of Linwood Mall, a shopping center located in Fort Lee, New Jersey. Defendant DeJesus is an employee of defendant Linwood Mall Associates and the only defendant to reside in New Jersey. The other individual defendants are all residents of the State of New York. The corporate defendant, Linwood Mall Associates is a New York corporation with its principal place of business in New York County. Third-party defendant The Climate Shop, Inc. is a New York corporation, and plaintiff Vincent Calla, who was its employee at the time of the accident, and his wife, plaintiff Angela Calla, are domiciled in New York State. The contract between the owners and The Climate Shop, Inc. was made in this State.

Plaintiff Vincent Calla was seriously injured in a fall from a ladder while performing work on the owners' property as the employee of third-party defendant The Climate Shop, Inc. At issue on this appeal is whether this case is to be governed by the lex loci delicti or the law of the common domicile of plaintiffs and the principal defendants. Specifically contested is whether the provisions of Section 240 of the Labor Law are controlling. The statute imposes upon an owner of property absolute liability for injury which results from the use of an unsafe scaffolding device and, specifically, from the use of an unsafe ladder. Liability is imposed despite the lack of an employer-employee relationship and in the absence of any supervision, direction and control over the work by the owner (Haimes v. New York Tel. Co., 46 N.Y.2d 132, 412 N.Y.S.2d 863, 385 N.E.2d 601). Even where the injured worker has supplied his own ladder and may have been contributorily negligent with respect to its maintenance and use, the Appellate Divisions of the Third and Fourth Departments have ruled that the statute holds the owner responsible (Harmon v. Sager, 106 A.D.2d 704, 483 N.Y.S.2d 751 [3d Dept.]; Larson v. Herald, 96 A.D.2d 1137, 467 N.Y.S.2d 446 [4th Dept.]. Likewise, where a worker's injuries resulted from the collapse of a scaffold supplied and erected by his employer, the owner of the premises who had hired the employer to install a water tank is answerable in damages (Hauff v. CLXXXII Via Magna Corp., 118 A.D.2d 485, 499 N.Y.S.2d 958 [1st Dept.]. As we observed in that case, "although [the scaffold] may have collapsed because of faulty construction which plaintiff took part in, contributory negligence is not a defense to a violation of section 240 (Crawford v. Leimzider, 100 AD2d 568 [473 N.Y.S.2d 498 (2nd Dept.) ]" (supra, at 486, 499 N.Y.S.2d 958). The law therefore imposes a duty upon property owners to provide a safe workplace which may not be escaped by delegation of that duty to an independent contractor (Harmon v. Sager, supra; Russin v. Louis N. Picciano & Son, 78 A.D.2d 467, 436 N.Y.S.2d 370 [3d Dept.].

By contrast, defendants argue, a New Jersey property owner owes a duty of ordinary care to provide the worker with a reasonably safe workplace (Sanna v. Natl. Sponge Co., 209 N.J.Super. 60, 506 A.2d 1258 [App.Div.]; Wolczak v. Natl. Elec. Prods. Corp., 66 N.J.Super. 64, 168 A.2d 412 [App.Div.]. The owners' fault must be established, and the worker's contributory negligence is a defense (Sanna v. Natl. Sponge Co., supra; Hardman v. Ford Motor Co., 70 N.J.Super. 275, 175 A.2d 455 [App.Div.]. Also, the degree of control and participation by the owner in the performance of the work is a major consideration in assessing his negligence (Gibilterra v. Rosemawr Homes, 19 N.J. 166, 115 A.2d 553; Sanna v. Natl. Sponge Co., supra; Wolczak v. Natl. Elec. Prods. Corp., supra ). Thus, defendants contend that at issue is the standard to be used in determining the extent of the owners' duty to the injured plaintiff and the criteria to be applied in determining whether that duty has been breached.

The Court of Appeals reviewed conflicts-of-law cases involving common domiciliaries in Schultz v. Boy Scouts of America, 65 N.Y.2d 189, 491 N.Y.S.2d 90, 480 N.E.2d 679, concluding that interest analysis is the appropriate approach to choice of law in tort actions. The contacts which are significant in defining a State's interest are those relating to the purpose to be served by its law. "Under this formulation," the court stated, "the significant contacts are, almost exclusively, the parties' domicile and the locus of the tort" (supra, at 197, 491 N.Y.S.2d 90, 480 N.E.2d 679).

In setting forth the criteria for choosing the law to be applied, the court distinguished between laws which may be said to regulate conduct and those which merely allocate loss:

These decisions also establish that the relative interests of the domicile and locus jurisdictions in having their laws apply will depend on the particular tort issue in conflict in the case. Thus, when the conflicting rules involve the appropriate standards of conduct, rules of the road, for example, the law of the place of the tort "will usually have a predominant, if not exclusive, concern" (Babcock v. Jackson, [12 NY2d 473] at p 483 [240 N.Y.S.2d 743, 191 N.E.2d 279]; see, Restatement [Second] of Conflicts of Law § 145 comment d, at 417-418) because the locus jurisdiction's interests in protecting the reasonable expectations of the parties who relied on it to govern their primary conduct and in the admonitory effect that applying its law will have on similar conduct in the future assume critical importance and outweigh any interests of the common-domicile jurisdiction (see, Babcock v Jackson, supra, at pp 483-484 [240 N.Y.S.2d 743, 191 N.E.2d 279]; Restatement [Second] of Conflict of Laws § 145 comment d, at 417-418; id. § 146 comments d, e at 431-433; see also, Miller v Miller, 22 NY2d 12, 19 [290 N.Y.S.2d 734, 237 N.E.2d 877], supra ). Conversely, when the jurisdictions' conflicting rules relate to allocating losses that result from admittedly tortious conduct, as they do here, rules such as those limiting damages in wrongful death actions, vicarious liability rules, or immunities from suit, considerations of the State's admonitory interest and party reliance are less important. Under those circumstances, the locus jurisdiction has at best a minimal interest in determining the right of recovery or the extent of the remedy in an action by a foreign domiciliary for injuries resulting from the conduct of a codomiciliary that was tortious under the laws of both jurisdictions (see, Tooker v Lopez, [24 NY2d 569] at p 576 [301 N.Y.S.2d 519, 249 N.E.2d 394]; Miller v Miller, supra [22 N.Y.2d], at pp 18-19 [290 N.Y.S.2d 734, 237 N.E.2d 877]; Babcock v Jackson, supra [12 N.Y.2d], at p 482 [240 N.Y.S.2d 743, 191 N.E.2d 279]. Analysis then favors the jurisdiction of common domicile because of its interest in enforcing the decisions of both parties to accept both the benefits and the burdens of identifying with that jurisdiction and to submit themselves to its authority (65 N.Y.2d 189, 198, 491 N.Y.S.2d 90, 480 N.E.2d 679).

Both plaintiffs and defendant owners cite this passage in support of their respective positions. As indicated above, defendants regard the statute as one which defines the duty which devolves upon an owner of property and, thus, as a provision which regulates conduct. Plaintiffs, however, contend that "the purpose of the statute is economic in nature. By making the owner financially liable for the consequences of another party's actions, the statute discourages the owner from obtaining a contractor merely on the basis of a low price, by providing an economic disincentive, in the form of fixing ultimate liability for the contractor's actions. The purpose of the statute is thus loss allocation."

The explanation for this apparent confusion is that, in fact, the statute performs both functions. It imposes a duty on the owner (and contractor) to exercise oversight to ensure that scaffolding and ladders used by workers are safe. In analyzing the intent of the law, the Court of Appeals observed that "the Legislature apparently decided, as it was within its province to do, that over-all compliance with safety standards would be achieved by placing...