Dullard v. Berkeley Associates Co., s. 731-734
| Decision Date | 27 August 1979 |
| Docket Number | D,Nos. 731-734,s. 731-734 |
| Parties | Brigid DULLARD, as Administratrix of the Estate of Hugh Dullard, Deceased, Plaintiff-Appellee, v. The BERKELEY ASSOCIATES COMPANY and Murray Hill Properties, Inc., 35 East 35th Street Corp., 175 West 12th Street Company, Beatay Holding Corporation, Bernmark Company, Skillman Avenue Construction Corporation, Lynn Realty Corporation, Broadway Construction Corporation, The Cousins Company, Stephen Perlbinder, Barton Mark Perlbinder, Bernard West, William West, Martin Berger, Bruce Berger, Michael Berger, Julius Perlbinder, Milton West, Lillian West, Augusta Berger Danzig, and 400 Concrete Corp. and Perlbinder Realty Corp., individually and as a joint venture, Defendants and Third-Party Plaintiffs-Appellants-Appellees, v. CASTLE CONCRETE CORP., Third-Party Defendant-Appellant-Appellee. ockets 78-7457, 78-7512, 78-7560 and 78-7561. |
| Court | U.S. Court of Appeals — Second Circuit |
John J. Wrenn, Larkin, Wrenn & Cumisky, New York City, for Berkeley Associates (defendants and third-party plaintiffs-appellants-appellees other than 400 Concrete Corporation).
Michael E. Shay, Langan & Levy, New York City, for defendant 400 Concrete Corp.
Mark J. Aaronson, Bower & Gardner, New York City, for third-party defendant-appellant Castle Concrete Corp.
Arthur N. Seiff, O'Dwyer & Bernstien, New York City (Frank Durkan, O'Dwyer & Bernstien, New York City, of counsel), for plaintiff-appellee.
Before OAKES, Circuit Judge, and PIERCE * and WERKER,* District Judges.
This is an appeal in a wrongful death diversity action from a judgment of the United States District Court for the Southern District of New York, Kevin T. Duffy, Judge, entered after a jury trial on October 3, 1978, and amended on October 10, 1978. The jury awarded plaintiff $630,000 for the wrongful death of her decedent, a construction foreman struck in the head by a falling "4 X 4" timber; $20,000 for his conscious pain and suffering; and $3,825.30 for funeral and hospital expenses, for a total judgment (including prejudgment interest) of $803,546.81. In a special verdict, the jury fixed the proportionate liability of the parties as follows: 39% With respect to the defendants and third-party plaintiffs. The Berkeley Associates Company and its various partners (hereinafter "Berkeley"), the owner and general contractor; 35% With respect to the defendant 400 Concrete Corporation ("400 Concrete"), which had contracted with Berkeley to perform the concrete superstructure work; and 26% With respect to the third-party defendant Castle Concrete Corporation ("Castle"), which had contracted with 400 Concrete to perform the work that 400 Concrete had agreed to perform for Berkeley. The court granted 400 Concrete's claim against Castle for indemnity of its 35% Share of liability but denied both Berkeley's claim against Castle for contractual indemnity of Berkeley's 39% Share and 400 Concrete's claim against Castle for indemnity of 400 Concrete's liability to indemnify Berkeley. For the reasons that follow, we are unpersuaded by the several arguments raised on appeal except for the objection that the verdict was excessive.
Decedent, a labor foreman employed by Castle, was working on East 53rd Street adjoining the construction site for a high-rise building at the time of his death. Material for the construction was stored at several locations on that street and elsewhere, and appellants used a large crane to lift the material to the upper floors of the building under construction. Decedent was struck and killed by a piece of lumber (4 X 4 X 4') that fell from an undetermined source at least ten stories above ground level. At the time of the accident Castle had stacked wood on the 29th and 31st floors, and there was some testimony that the piece of lumber fell from one of those floors. The appellants had not provided any overhead protection, or more specifically a sidewalk shed, in violation of the New York Labor law, 1 nor did they have any effective system to warn endangered workers of falling objects.
Berkeley's argument that there is no diversity of jurisdiction is frivolous. When plaintiff commenced this suit, she was a citizen of Ireland. Defendants are citizens of the United States. See 28 U.S.C. § 1332(a)(2).
Castle and Berkeley maintain that the court incorrectly charged the jury that certain provisions of the New York Labor Law, See note 1 Supra, impose on the owner and general contractor the continuing duty to provide suitable overhead protection, as well as the nondelegable duty to provide reasonable safety to workers on the construction site. According to defendants, the position of the crane made it impossible to provide overhead protection and thus under New York law, Ortiz v. Uhl, 39 A.D.2d 143, 148, 332 N.Y.S.2d 583, 588 (1972), Aff'd, 33 N.Y.2d 989, 353 N.Y.S.2d 962, 309 N.E.2d 425 (1974), they owed no such duty here. After reviewing the evidence, especially the photographic exhibits, we are persuaded that the defendants' proof of the impossibility of operating the crane if overhead protection were offered was so meager and dubious that the court was amply justified in declining to charge the jury that impossibility was a defense. Ortiz involved work at the foot of a New York State Power Authority dam, with "no practical way of providing overhead protection" over the entire surface of the gorge. 39 A.D.2d at 145, 332 N.Y.S.2d at 585. Here involved was work on a high-rise building with a limited work area where such protection could readily have been provided in the form of a sidewalk shed as set forth in the New York Board of Standards and Appeals' Industrial Code (Rule 23), without interference with the operation of the crane.
Castle also argues that plaintiff failed to establish a prima facie case of negligence against 400 Concrete. 2 But the jury could have found that Barton Mark Perlbinder, an officer of 400 Concrete who in that capacity had signed the contract with Castle, was on the job site almost daily, including the morning of the accident; and that another officer was also on the job site during the months of the construction. Castle points out that these officers claimed to be on the site in their capacity as officers of Berkeley. But the jury might have disagreed in light of Perlbinder's signing of the Castle contract. Moreover, regardless of the degree of 400 Concrete's actual control and direction of Castle's work, it would appear that 400 Concrete, as a contractor, had a nondelegable duty to insure that its construction area was so "guarded . . . as to provide reasonable and adequate protection and safety to the persons employed therein," N.Y.Lab.Law § 241(6) (McKinney Cum.Supp. 1978); See Allen v. Cloutier Construction Corp., 44 N.Y.2d 290, 405 N.Y.S.2d 630, 376 N.E.2d 1276 (1978). The jury certainly might have found that 400 Concrete failed to provide adequate protection.
Appellants complain that the court erred in giving the jury a res ipsa loquitur instruction. All that the court did was to charge the jury that the law "permits but does not require" an inference of negligence against the person having exclusive control of an instrumentality that causes an accident if the accident would not ordinarily have occurred without negligence. This is a simple enough principle of circumstantial evidence and has none of the vice of creating a presumption of negligence that the mere incantation of the Latin phrase so often evokes (although in certain special relationships, E. g., carrier/passenger, it is proper to shift the burden as a matter of policy, See W. Prosser, Handbook of the Law of Torts § 40 at 231 (4th ed. 1971)). One would suppose that a timber falling on a person's head from a high building was the quintessential "thing," at least it was in Baron Pollock's mind when he dropped the phrase onto the confused heads of the legal world in the argument in Byrne v. Boadle, 2 H. & C. 722, 159 Eng.Rep. 299 (1863) (). After noting that Castle and 400 Concrete each contended that it was not in exclusive control of the instrumentality, the court instructed the jury that this was a question of fact. The court noted that as general contractor and owner, Berkeley was "in control of everything at the job site," and continued that the question then was whether Berkeley had exclusive control of the instrumentality.
Under New York law, these instructions were more than adequate, even overly generous to defendants, for New York permits a "thing to speak for itself" as a matter of inference even when plaintiff has not shown that the instrument was in the defendant's Exclusive control; the inference may be equally applicable to several persons if "they shared a common duty and there was no indication that any one of them in particular had actually caused the injury." De Witt Properties, Inc. v. City of New York, 44 N.Y.2d 417, 427, 406 N.Y.S.2d 16, 21, 377 N.E.2d 461, 466 (1978); See also Restatement (Second) of Torts § 328D, comment g (1965). Here there was evidence (some of which we have already recounted) that Castle, 400 Concrete, and Berkeley "shared a common duty" to keep the workplace safe, and the court was justified in submitting a permissive inference charge to the jury. Although Berkeley complains of the court's language "in control of everything," the court then stated that the jury must find that Berkeley exercised Exclusive control over the instrumentality. Reviewing the charge as a whole, we believe that the court fairly stated the law.
Castle's agreement to indemnify 400 Concrete was for "any and all claims, losses, suits, damages, judgments, expenses, costs and charges of every nature and kind, both legal and otherwise, whether direct or indirect, by reason of personal injuries, death or property damage to any persons or others caused by, arising out of or occurring in connection with the...
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