Haimes v. New York Telephone Co.

• Decision Date: 21 December 1978
• Citation: 385 N.E.2d 601,46 N.Y.2d 132,412 N.Y.S.2d 863
• Parties: , 385 N.E.2d 601 Jeanette HAIMES, as Administratrix of the Estate of Edward Haimes, Deceased, Respondent, v. NEW YORK TELEPHONE COMPANY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 863

412 N.Y.S.2d 863

46 N.Y.2d 132, 385 N.E.2d 601

Jeanette HAIMES, as Administratrix of the Estate of Edward

Haimes, Deceased, Respondent, v. NEW YORK TELEPHONE COMPANY, Appellant.

Court of Appeals of New York.

Dec. 21, 1978.

Lawrence E. Lagarenne and D. Christopher Du Bois, Monticello, for appellant

Michael Davidoff and John S. McBride, Monticello, for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

This action for wrongful death is grounded on an alleged violation of section 240 of the Labor Law of the State of New York. The basic question we are called upon to decide is whether a breach of the duties prescribed by that statute gives rise to absolute liability on the part of an owner of a building despite the fact that the owner exercised no supervision, control or direction of the work being performed and that the person injured by the violation was a self-employed independent contractor whom the owner had engaged to do the work.

Subdivision 1 of section 240 reads as follows: "All contractors and owners and their agents, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected For the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give Proper protection to a person so employed " (emphasis supplied). ¹

Essentially, the facts are undisputed. Plaintiff's decedent, Edward Haimes, was painting a cornice at the roof level of a building owned by the defendant, New York Telephone Company, when the ladder on which he was standing toppled, throwing him 18 feet to the ground and causing him to lose his life. The work was being done for a fixed price pursuant to defendant's purchase order. The exact time of performance and the other details of the work were left entirely to Haimes, who also supplied all equipment, including the ladder used on the job. At the time of the occurrence, no person was assisting the decedent and the ladder was not being secured against slippage by any mechanical or other means whatsoever. ²

The appeal comes to us in the following procedural context:

After a nonjury trial on the issue of liability alone, Trial Term, though its findings of fact accorded with those we have recited, dismissed the complaint, which was premised only on the alleged violation of section 240. The court did so solely because the plaintiff had failed to establish "control or supervision", which the Trial Judge then thought the statute required as an essential predicate for imposition of liability on the owner. ³ But the Appellate Division, noting that "no issue of fact having been considered" by it, reversed "on the law and the facts", ordered judgment entered in favor of the plaintiff and remitted the matter for assessment of damages. It thereafter granted defendant leave to appeal to this Viewed in perspective, section 240 is one of the progeny of our State's long line of legislative efforts to eliminate dangers to the health and safety of those working in hazardous occupations. As long ago as 1885, enactments to that end had already come to include the first "scaffold laws", which expressly placed house painters within the embrace of their protections (L.1885, ch. 314; L.1892, ch. 517). During the ensuing decades, with the growth of social consciousness, the statutory provisions became increasingly favorable to workers, but as is not unusual in such matters there came a time when the pendulum began to swing the other way.

court and, pursuant to CPLR 5713, certified the following question: "Did the Trial Term err as a matter of law in dismissing plaintiff's complaint?" For the reasons that follow, in answering the question in the affirmative, we also conclude that the complaint should not have been dismissed.

The retreat reached its most pronounced form with the passage of the 1962 amendments. Prior thereto, an owner or general contractor had come to be regarded as subject to vicarious first instance liability without regard to fault or control. The amendments, however, especially section 240's companion section 241, came to be construed as requiring that an owner or general contractor actually had to have exercised control or supervision before either could be held responsible for the negligent acts of others (see Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 292-293, 405 N.Y.S.2d 630, 631, 376 N.E.2d 1276, Supra ). However, the full effects of this turnabout had hardly come to be felt when the Legislature, in 1969, once again reversed its course and returned to what were essentially the pre-1962 provisions (see L.1919, ch. 545, § 2; L.1962, ch. 450, § 3; L.1969, ch. 1108, § 3).

In calling a halt to its earlier backtracking, the Legislature minced no words. Referring expressly to both section 240 and section 241, its stated purpose in redrafting these statutes was to fix "ultimate responsibility for safety practices * * * where such responsibility actually belongs, on the owner and general contractor" (N.Y.Legis. Ann., 1969, p 407). Whatever doubt may have remained that it had succeeded in doing so as to section 241 was laid to rest by our recent decision in Allen v. Cloutier Constr. Corp. (supra).

There is no less reason to apply the expressed legislative policy in our construction of section 240. Prior to 1969, this section placed liability for its violation upon "A person Employing or Directing another to perform labor" (emphasis ours); it now unqualifiedly places liability upon "All contractors and owners and their agents", duplicating the language of section 241. Under both amended sections, an owner no longer need be the employer of the worker or one directing his labor in order to be subject to liability. Furthermore, section 240 no longer contains any provision spelling out responsibility of subcontractors for compliance with the duties that section imposes; as Judge Cooke, writing in Allen, pointed out, the 1969 deletion of such a clause from section 241 was a significant factor in the revitalizing of that statute (Allen v. Cloutier Constr. Corp., supra, p. 298, 405 N.Y.S.2d p. 632, 376 N.E.2d p. 1278). If, with all that, an owner's liability had been intended to continue to be conditioned on control and supervision, it would have to be said that the Legislature, for all its vaunted labors and professions, had engaged in but an empty charade. There is no basis for such conclusion (Carinha v. Action Crane Corp., 58 A.D.2d 261, 396 N.Y.S.2d 191; Rocha v. State of New York, 45 A.D.2d 633, 360 N.Y.S.2d 484; Matter of Weinstein v. Swan-Finch Oil Corp., 7 Misc.2d 291, 162 N.Y.S.2d 427).

Having thus disposed of the underlying issue, we turn to the owner's alternative position, i. e., that, since Haimes was an independent contractor rather than an "employee" of one, he did not fall within the class of persons protected by section 240. It argues that neither the legislative history Little more, if anything, can be inferred from the fact that the statute, in referring to safety devices, states that these are intended for "protection to a person so employed". This is far from saying that such a person must be part of an employer-employee relationship. It needs no resort to the dictionary to know that the meaning of the word "employed"...