Garlichs v. Empire State Bldg Corp.

• Decision Date: 23 May 1957
• Citation: 3 N.Y.2d 780,164 N.Y.S.2d 33
• Parties: , 143 N.E.2d 790 Fred GARLICHS, Appellant, v. EMPIRE STATE BUILDING CORP., Respondent, and Consolidated Textiles Co. Inc., et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 33

164 N.Y.S.2d 33

3 N.Y.2d 780, 143 N.E.2d 790

Fred GARLICHS, Appellant, v. EMPIRE STATE BUILDING CORP., Respondent, and Consolidated Textiles Co. Inc., et al., Defendants.

Court of Appeals of New York.

May 23, 1957.

Appeal from Supreme Court, Appellate Division, Second Department, 2 A.D.2d 750, 153 N.Y.S.2d 275.

Window cleaner employed by window cleaning concern brought action against owner of building for injuries, on ground that owner of building failed to furnish window cleaner with a safe place to work.

The Supreme Court, Trial Term, Suffolk County, L. Barron Hill, J., entered judgment for the window cleaner, and the owner of the building appealed.

The Appellate Division reversed the judgment, dismissed the complaint, and held that where owner of building instructed window cleaner to notify building maintenance office about windows, which were stuck, and not to open such windows, and window cleaner injured his back while trying to open a stuck window, owner of building did not fail to furnish window cleaner with a safe place to work, and that owner of building was not negligent in failing to anticipate that window cleaner might injure himself by using 'ordinary strength' to open a window.

The window cleaner appealed to the Court of Appeals, contending that the Appellate Division erroneously reversed the judgment in favor of the window cleaner, and that the Appellate Division erroneously dismissed the complaint of the window cleaner, and that the opinion of the Appellate Division was based on an erroneous view of the testimony.

Mathew Vener, New York City (Sidney R. Siben, New York City, and Daniel Kirchman, New York City, on the brief), for plaintiff-appellant.

Galli & Locker, New York City (Royce A. Wilson, New York City, and Patrick E. Gibbons, New York City, of counsel), for defendant-respondent.

Judgment affirmed, with costs, upon the memorandum opinion of the Appellate Division.

All concur except FROESSEL, J., who dissents in an opinion in which CONWAY, C. J., and BURKE, J., concur.

FROESSEL, Justice (dissenting).

This is an action to recover damages for personal injuries. Plaintiff was employed as a window cleaner by the Terminal Window Cleaning Company, which had a contract to clean the windows of the Empire State Building, owned, operated and controlled by Empire State Building Corp. (hereinafter called defendant). He had been working as a window cleaner for approximately 20 years, and in the Empire State Building for approximately 6 to 8 years.

Plaintiff worked under the general direction of the assistant custodian of the building, Corbett, who was an employee of defendant, and who told plaintiff in which rooms to clean windows. Plaintiff and one Jablonsky customarily cleaned as a team, covering the section of windows assigned to them about twice every month. It was plaintiff's duty to clean the outside as well as the inside of each window. In order to do this it was necessary for him to open each window and climb outside.

In the course of this work, a window would at times 'stick' and not open easily. In such event, plaintiff was instructed by defendant 'not to fool around with that window', to 'leave it alone', 'not to touch the window', and to report it either to Corbett or to the chief building carpenter, Brown. Upon such a report, Brown's department would normally repair the window within a day.

Early in December, 1950, about two weeks before the accident, plaintiff found that a certain window in suite 4719 on the 47th floor would not open. According to his instructions, plaintiff skipped the window and reported to Corbett, who told him that he was 'going to take care of it'. Neither Corbett nor Brown had any record available of such report, which records were kept for short periods, and neither was able to recall whether this particular report had been made.

On December 21, 1950, plaintiff was again directed by 'a slip * * * in the locker room' to clean the windows on the 47th floor. The windows in suite 4719 had recently been painted, but 'the paint was dry'. Plaintiff found that they all stuck a little when opened, although his coworker, Jablonsky, experienced no such difficulty they could be opened 'without a strain'. The window which plaintiff had previously reported as defective was located about three feet off the floor behind a radiator extending about one half foot from the window. Plaintiff, knowing that this was the same window which he had previously reported, reached across the radiator and, while using an 'ordinary amount of strength', he felt a sharp pain in his back and his legs went numb. The accident was witnessed by Jablonsky.

Plaintiff's doctor examined him on the day of the accident and found that he had sustained a severe back sprain, severe paresthesia of the right ieg, and also concluded he 'was dealing with a herniated disc'. The doctor expressed the opinion that these injuries created a permanent disability, and that they could have been caused by plaintiff's attempt to lift the window. Though plaintiff was examined by defendant's physician, the latter was not called to testify.

Plaintiff, as already indicated, was the employee of an independent contractor, which was employed by defendant to work on its building. Defendant consequently owed to plaintiff the same duty of exercising reasonable care to furnish him with a safe place to work and safe equipment to work with as it owed to its own employees (Circosta v. 29 Washington Sq. Corp., 2 N.Y.2d 996, 163 N.Y.S.2d 611; Haefeli v. Woodrich Eng. Co., 255 N.Y. 442, 448, 175 N.E. 123, 125; Caspersen v. La Sala Bros., 253 N.Y. 491, 494, 171 N.E. 754, 755; Dougherty v. Pratt Inst., 244 N.Y. 111, 113, 155 N.E. 67, 68; McLean v. Studebaker Bros. Co., 221 N.Y. 475, 477-478, 117 N.E. 951, 952, 1 A.L.R. 1551; Hess v. Bernheimer & Schwartz Pilsener Brewing Co., 219 N.Y. 415, 418, 114 N.E. 808, 809; Wohlfron v. Brooklyn Edison Co., 238 App.Div. 463, 465, 265 N.Y.S. 18, 20, affirmed 263 N.Y. 547, 189 N.E. 691; Labor Law, § 200; cf. Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 317, 83 N.E.2d 133, 134, 10 A.L.R.2d 848). The trial court's charge was obviously based on this view of the law, for he charged negligence and contributory negligence, without exception. The record contains sufficient evidencd to support a jury verdict that defendant violated this duty. Defendant was notified approximately two weeks before the accident that the window at which plaintiff was eventually injured would not open. With such knowledge, defendant's duty to provide a safe place to work included a duty to repair this window. In fact, plaintiff was assured that this would be done....