Havas v. Victory Paper Stock Co., Inc.

• Decision Date: 14 February 1980
• Citation: Havas v. Victory Paper Stock Co., Inc., 49 N.Y.2d 381, 426 N.Y.S.2d 233 (N.Y. 1980)
• Parties: , 402 N.E.2d 1136 Leslie HAVAS et al., Appellants, v. VICTORY PAPER STOCK CO., INC., Defendant and Third-Party Plaintiff-Respondent. Morgan Guaranty Trust Co., Third-Party Defendant-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 233

426 N.Y.S.2d 233

49 N.Y.2d 381, 402 N.E.2d 1136

Leslie HAVAS et al., Appellants, v.VICTORY PAPER STOCK CO., INC., Defendant and Third-Party Plaintiff-RespondentMorgan Guaranty Trust Co., Third-Party Defendant-Respondent.

Court of Appeals of New York.

Feb. 14, 1980.

Henry G. Miller and Lawrence T. D'Aloise, Jr., White Plains, for appellants.

Robert L. Horkitz, New York City, for defendant and third-party plaintiff-respondent.

Bertram W. Eisenberg, Liberty, for third-party defendant-respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

This is an appeal from an order of the Appellate Division which reversed on the law two judgments, one in favor of the plaintiff, Leslie Havas, against the defendant, Victory Paper Stock Company, and the other in favor of Victory, as third- plaintiff, against Morgan Guaranty Trust Company, as third-party defendant.Both followed a trial by jury, which besides passing on liability and damages, also apportioned the damages as between Victory and Morgan.The order of reversal also dismissed the complaint.Raised before us in the main are questions relating to the roles of Judge and jury in a negligence suit.

The facts are essentially undisputed.Havas' employer, Morgan, had an ongoing arrangement with Victory for the latter to remove bales of wastepapers as they accumulated at the Morgan offices at Wall and Broad Streets in New York City.The bales were bulky.They would weigh as much as a thousand pounds each.The transfer from Morgan to Victory usually was effected by means of a hydraulic forklift which Morgan's men, working under Havas' supervision, would use to mechanically raise the bales from the sidewalk to the level of the platform of a Victory flatbed truck, a point at which the latter's driver would assume control of their placement.

On the day of the accident, however, the lift was out of commission.Rather than send the truck back empty, Havas' superior, over his objection, devised an ad hoc method of loading the truck.It required certain Morgan employees to position a 10-foot wooden ramp so that it bridged the gap between the sidewalk and the horizontal edge of the bed of the truck, which was three feet above ground level.The bottom of this ramp had no footings or other provision to prevent it from sliding; nor did the top of the ramp, though its lip overlapped the edge of the truck floor, have any built-in device by which it and the truck could be secured to one another.The unsecured and unfastened ramp was then used as a runway up which Morgan employees were manually to move the heavy bales to the truck platform, from which the Victory driver would add a pulling force exerted by means of a heavy iron hook with which he would spear the bales as they approached the top.

This modus operandi apparently was followed without untoward incident as to two bales.But the third turned out to be another matter.Whether due to the great weight of the particular bale or the steepness of the incline of the ramp up which it had to travel, the Morgan crew that was handling the sidewalk end of the operation was experiencing great difficulty in moving it.Noticing their predicament, Havas and another Morgan employee, both of whom happened to be in the vicinity but neither of whom had participated in manipulating the other bales, reacted spontaneously by coming to the assistance of the others.They did so by stepping onto the ramp and there adding their own manpower to the struggle to push the bale toward its intended destination.While engaged in these efforts, and at a time when they and the other Morgan employees had brought the bale to a point at which the Victory driver had already applied his hook to it, the unattached ramp slipped away from the truck and crashed to the ground along with Havas.

Since the articles of property which played some role in this episode the ramp, the truck, the bale and the hook were owned by or were in the control of either Victory or Morgan or both, and the only persons who figured in it were employees of either one or the other, conceptually any possible suit of negligence would have to be lodged against Morgan, Victory or possibly their employees.Presumably at least in part because a third-party suit ordinarily will not lie against one's own employer or fellow servant (seeWorkers' Compensation Law, §§ 11,29, subd. 6), plaintiff elected to bring its action against Victory alone, and it was that defendant, not inhibited by the bar of the Workers' Compensation Law, who brought Morgan in as a third-party defendant.By its verdict, the jury found both liable and apportioned their culpability at 50% each.

In reversing and dismissing, the Appellate Division took the position that there was no duty of reasonable care owed by Victory to Havas and that, in any event, "there was no negligent act or omission on the part of Victory's driver that proximately contributed to the accident"(66 A.D.2d, p. 954, 411 N.Y.S.2d, p. 453).We disagree on both counts and hold that the Trial Judge properly sent the case to the jury.

It seems to us that the answers to both issues posed by the Appellate Division's rationale whether Victory owed a duty to the plaintiff and, if it did, whether, in the face of it, Victory failed to act in a reasonably prudent manner turn largely on foreseeability.For, despite the broadening of tort liability concepts to reflect economic, social and political developments (see, e. g., Micalleff v. Miehle Co., 39 N.Y.2d 376, 386, 384 N.Y.S.2d 115, 121, 348 N.E.2d 571, 577;Codling v. Paglia, 32 N.Y.2d 330, 340, 345 N.Y.S.2d 461, 467, 298 N.E.2d 622, 627), in a case which raises such traditional negligence law queries as does the one before us the answers are still to be found in the principle so pungently phrased by Cardozo that "(t)he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation"(Palsgraf v. Long Is. R. R. Co., 248 N.Y. 339, 344, 162 N.E. 99, 100).Or, as it is spelled out more precisely in the English case that is the progenitor of the foreseeability principle, "(W)henever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such...