Halftown v. Triple D Leasing Corp.

• Decision Date: 09 July 1982
• Docket Number: No. 1,1
• Citation: 89 A.D.2d 794,453 N.Y.S.2d 514
• Parties: Seth HALFTOWN, Respondent, v. TRIPLE D LEASING CORPORATION, Edstrom Company, Inc., Appellants. Seth HALFTOWN, Respondent, v. ROGERS STRUCTURAL STEEL COMPANY, Appellant. TRIPLE D LEASING CORPORATION and Edstrom Company, Inc., Third Party Plaintiffs-Respondents, v. SOUTHERN TIER ERECTORS, Third Party Defendant Appellant, and Rogers Structural Steel Company, Third Party Defendant-Respondent. Appeal
• Court: New York Supreme Court — Appellate Division

Page 514

453 N.Y.S.2d 514

89 A.D.2d 794

Seth HALFTOWN, Respondent, v. TRIPLE D LEASING CORPORATION, Edstrom Company, Inc., Appellants.

Seth HALFTOWN, Respondent, v. ROGERS STRUCTURAL STEEL COMPANY, Appellant.

TRIPLE D LEASING CORPORATION and Edstrom Company, Inc., Third Party Plaintiffs-Respondents, v. SOUTHERN TIER ERECTORS, Third Party Defendant Appellant, and Rogers Structural Steel Company, Third Party

Defendant-Respondent. Appeal No. 1.

Supreme Court, Appellate Division Fourth Department.

July 9, 1982.

Hornburg, Diggs & Marks, P. C., by Philip Marks, Olean, for appellant Triple D Leasing.

Cox, Barrell, Walsh, Roberts & Grace, by Gerald Grace, Buffalo, for appellant Edstrom Co.

Herman J. Ginsburg by Herman J. Ginsburg, Kenmore, for appellant Rogers Structural Steel.

Dixon & DeMarie, P. C., by Joseph DeMarie, Buffalo, for appellant Southern Tier Erectors.

Collins, Collins & DiNardo, P. C., by John F. Collins, Buffalo, for respondent Halftown.

Before SIMONS, J. P., and DOERR, DENMAN, BOOMER and MOULE, JJ.

MEMORANDUM:

While employed by third party defendant, Southern Tier Erectors, plaintiff sustained severe and painful burns while assisting in the erection of a steel column that came into contact with overhead electrical wires. Plaintiff sued the owner (Triple D Leasing Corp.), general contractor (Edstrom Co. Inc.), and subcontractor (Rogers Structural Steel Co.), all of whom instituted third party actions against plaintiff's employer, Southern Tier. Before the trial began, the court, relying on Long v. Forest-Fehlhaber, 74 A.D.2d 167, 427 N.Y.S.2d 649 and language contained in Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 405 N.Y.S.2d 630, 376 N.E.2d 1276 ruled that comparative negligence would not be a defense. At the close of evidence, the court granted the third party plaintiffs' motion for a directed verdict against Southern Tier, finding that Southern Tier, as the party in control, must bear full responsibility for the injury. The only question submitted to the jury was whether Southern Tier failed to provide a safe workplace; if so, defendants would be vicariously liable to plaintiff, but defendants would be entitled to full indemnification from Southern Tier. On appeal the parties raise numerous issues, but we address only four of them.

We conclude, first, that there must be a new trial on the liability issue because of the court's erroneous determination that comparative negligence is not a defense. Although the law was unclear at the time, the Court of Appeals has since determined that comparative negligence is a defense in an action based on a violation of the regulations promulgated pursuant to section 241 (subd. 6) of the Labor Law (Long v. Forest-Fehlhaber, 55 N.Y.2d 154, 161, 448 N.Y.S.2d 132, 433 N.E.2d 115).

We also conclude that there must be a new trial on the issue of damages because of errors in the summation. Counsel referred to the time-unit formula for valuing pain and suffering, clearly an improper remark in this State (De Cicco v. Methodist Hosp. of Brooklyn, 74 A.D.2d 593, 424 N.Y.S.2d 524; Paley v. Brust, 21 A.D.2d 758, 250 N.Y.S.2d 356). Counsel also told the jury six times that they were "the conscience of the community" and must send a message to those in the construction field to be more careful so that this does not happen again, thereby inviting the jury to award punitive damages although such were not involved in the pleadings. While both remarks might be viewed as harmless error in light of...