Galbraith v. John B. Pike & Son, Inc.
| Decision Date | 21 February 1963 |
| Citation | 18 A.D.2d 39,238 N.Y.S.2d 263 |
| Parties | Anna GALBRAITH, as Administratrix of the Estate of James F. Galbraith, Deceased, Appellant, v. JOHN B. PIKE & SON, INC., and Ernest Drew Doing Business as Drew's Paint Spot, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Francis G. Hessney, Canandaigua, for appellant.
Coyle, Marks & Jordan, Rochester, for respondent, John B. Pike & Son, Inc. (William M. Marks, Rochester, of counsel).
Winchell, Goldwater & Connors, Rochester, for respondent, Ernest Drew (Richard H. Connors and Paul K. Lange, Rochester, of counsel).
Before WILLIAMS, P. J., and BASTOW, HALPERN, McCLUSKY and HENRY, JJ.
The trial court erred in dismissing the complaint at the close of the plaintiff's case. The evidence established a prima facie case against the defendant Drew, both under section 240 of the Labor Law and under common law principles, and it also established a prima facie case against the defendant Pike at common law.
The action had been brought by the plaintiff as administratrix of the estate of Frank Galbraith for the wrongful causing of his death. On April 12, 1961, the decedent had fallen to his death from a scaffold on which he was working as a painter in the pilot room of a research plant which was being built by the defendant Pike as general contractor. The defendant Drew was the sub-contractor for the painting work.
Taking the view of the evidence most favorable to the plaintiff, as we must in reviewing a dismissal of the complaint at the close of the plaintiff's case, the facts may be fairly stated as follows:
The decedent was a free lance painter who was retained by Drew, under an oral agreement, to paint the ceiling and the walls of the pilot room for the sum of $575.00. The pilot room was three stories high. Under the terms of the oral agreement, the decedent was to use his own spraying outfit and he was to furnish his own helper but Drew was to furnish the paint. The evidence warranted a finding that, under the agreement, it was Drew's obligation to provide a scaffold for the work.
When the decedent arrived for work on the morning of April 12, 1961, Drew informed him that his (Drew's) scaffold was 'too low' and that he would try to borrow one from Pike. Pike's superintendent authorized Drew to use a seven level scaffold, which was already standing in a corner of the pilot room, and Drew accordingly took possession of it and turned it over to the decedent.
The scaffold consisted of tubular pipes fastened together. Wooden planks had been placed on top of the scaffold to serve as a platform, which presumably could be used for the painting of the ceiling. At the side of the scaffold nearest the north wall against which it had been placed, there was an outrigger arrangement. This consisted of two brackets extending from the scaffold toward the wall, upon which a plank had been placed to form a platform from which the wall could be painted. The outriggers could be lowered from level to level as the painting job progressed. There were no guard rails at the ends of the outrigger platform.
The decedent apparently completed the painting of the ceiling in the area of the scaffold and then, at some time during the first hour of his work, the decedent lowered the outrigger platform from the top or seventh level to the sixth level for the purpose of painting the upper part of the wall. He proceeded to spray paint to a point on the wall about 50 inches west of the westerly end of the platform and, in so doing, he fell off the end of the platform to the ground and sustained the injuries which caused his death.
A prima facie case was plainly made out against the defendant Drew both under the Labor Law and under common law principles.
Section 240 of the Labor Law, insofar as here relevant provided:
'1. A person employing or directing another to perform labor of any kind in the * * * painting * * * of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding * * * and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed or directed.
To implement the statute, the Board of Standards and Appeals adopted Rules 23-3.26, 23-12.5 and 23-12.10.
The scaffold, as supplied by the defendant Drew, violated the statute and the rules in several respects. The most important violation was the absence of guard rails at the ends of the outrigger platform.
We may assume for the purposes of the present appeal that the decedent was not an employee of Drew but was an independent contractor. Nevertheless, Drew was a person 'directing' the decedent within the meaning of section 240 of the Labor Law. In view of the contractual arrangement under which Drew was to supply the scaffold and in view of the fact that Drew actually did supply the scaffold upon which the decedent was working at the time of the fatal accident, it must be held that Drew in effect 'directed' the decedent to use the scaffold supplied by him. In this situation, the statute is plainly applicable to Drew and he is subject to absolute liability for any violation of the statute.
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