Heritage v. Van Patten

• Citation: 453 N.E.2d 1247,59 N.Y.2d 1017,466 N.Y.S.2d 958
• Parties: , 453 N.E.2d 1247 Wayne D. HERITAGE et al., Appellants, v. Robert VAN PATTEN, Respondent.
• Decision Date: 07 July 1983
• Court: New York Court of Appeals

Page 958

466 N.Y.S.2d 958

59 N.Y.2d 1017, 453 N.E.2d 1247

Wayne D. HERITAGE et al., Appellants, v. Robert VAN PATTEN, Respondent.

Court of Appeals of New York.

July 7, 1983.

[453 N.E.2d 1248] Joseph E. Rosch and Christopher L. Barker, Ballston Spa, for appellants

Edward F. Layden, Whitehall, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division 90 A.D.2d 936, 457 N.Y.S.2d 912 should be affirmed, with costs.

To impose liability upon defendant Van Patten, owner of the land on which plaintiff, a coemployee of Van Patten, was injured, by virtue of section 241 of the Labor Law would be to disregard the express legislative prohibition established by subdivision 6 of section 29 of the Workers' Compensation Law which makes compensation the exclusive remedy of an employee injured "by the negligence or wrong of another in the same employ." To paraphrase Williams v. Hartshorn 296 N.Y. 49, 50-51, 69 N.E.2d 557: Regardless of his status as owner of the premises where the injury occurred, Van Patten remains a coemployee in his relations with plaintiff in all matters arising from and connected with their employment.

That the purpose of section 241 of the Labor Law was to impose a nondelegable duty upon a property owner regardless of the absence of control, supervision or direction of the work by him (Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 405 N.Y.S.2d 630, 376 N.E.2d 1276) provides no greater reason for denying exclusivity to the compensation remedy than did the derivative liability imposed upon a vehicle owner by section 388 of the Vehicle and Traffic Law, the purpose of which was, like section 241 of the Labor Law, to create a remedy which was previously nonexistent. Yet there is no question that a vehicle owner, not himself a coemployee of plaintiff, is protected by subdivision 6 of section 29 of the Workers' Compensation Law from liability for injury to plaintiff resulting from operation of the owner's vehicle by a coemployee of plaintiff (Naso v. Lafata, 4 N.Y.2d 585, 176 N.Y.S.2d 622, 152 N.E.2d 59; Rauch v. Jones, 4 N.Y.2d 592, 176 N.Y.S.2d 628, 152 N.E.2d 63; Malone v. Jacobs, 88 A.D.2d 927, 450 N.Y.S.2d 885; see Sikora v. Keillor, 13 N.Y.2d 610, 240 N.Y.S.2d 601, 191 N.E.2d 88). "The statute, having deprived the injured employee of a right to maintain an action against a negligent coemployee, bars a derivative action which necessarily is dependent upon the same claim of negligence for which the exclusive remedy has been provided" (Rauch v. Jones, supra, 4 N.Y.2d at p. 596, 176 N.Y.S.2d 628, 152 N.E.2d 63).

COOKE, Chief Judge (dissenting).

I cannot agree that merely because a landowner is a coemployee of an injured worker, the landowner may not be held liable for a violation of his or her duty to provide a safe workplace under section 241 of the Labor Law. I therefore dissent and vote to reverse.

It is true that subdivision 6 of section 29 of the Workers' Compensation Law states that workers' compensation benefits "shall be the exclusive remedy to an employee * * * when such employee is injured or killed by the negligence or wrong of another in that same employ." This exclusivity provision should not be construed, however, to negate an owner's absolute and nondelegable duty to insure the safety of construction and excavation sites under section 241 of the Labor Law. Under subdivision 6 of the section, all contractors and property owners, except certain owners of one- or two-family dwellings, must insure that "[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places."

In enacting this provision, the Legislature's intention was "to give the workman in the hazardous employment of construction, demolition and excavationadded protection, other than workmen's compensation, in the form of nondelegable duties cast upon the owner and general contractor" (Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 299, 405 N.Y.S.2d 630, ...