Horan v. Dormitory Authority

• Decision Date: 29 November 1973
• Parties: Daniel HORAN, as father and natural guardian of Thomas Horan, et al., Respondents, v. DORMITORY AUTHORITY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 448

349 N.Y.S.2d 448

43 A.D.2d 65

Daniel HORAN, as father and natural guardian of Thomas Horan, et al., Respondents, v. DORMITORY AUTHORITY, Appellant.

Supreme Court, Appellate Division, Third Department.

Nov. 29, 1973.

Donohue, Bohl, Clayton & Komar, Albany (Paul F. Donohue, Albany, of counsel), for appellant.

Rosenstock & Turner, Albany (James S. Carter of Carter, Conboy, Bardwell & Case, Albany, of counsel), for respondents.

Before HERLIHY, P.J., and STALEY, GREENBLOTT, KANE and REYNOLDS, JJ.

STALEY, Justice.

This is an appeal from a judgment of the Supreme Court, entered October 17, 1972 in Albany County, upon a directed verdict in favor of plaintiffs on the issue of defendant's liability, and a jury verdict awarding damages to them.

On August 21, 1967 Thomas Horan was working as a laborer on the construction of a dormitory for Siena College in Loudonville, New York. He was a second year college student, and was employed for the summer by the general contractor which had been engaged by defendant to construct the dormitory building. On August 21, 1967 Horan fell through a stairwell, skylight or hatchway in the roof of the four-story building to the concrete basement, four floors below. There were no witnesses who actually saw Horan fall through the hole, but Maxford Palmer was working with Horan on the day in question. They were working on the roof, 'picking up the loose stuff that was laying around, getting it ready for the roofer to do the work, scraps of wood, pieces of block, pieces of brick, whatever was there.'

At the time of the accident, Palmer was some 50 feet from Horan with his back turned to him. Palmer heard screams from below and walked to the place where Horan had been standing. He saw the hole and a piece of plywood, approximately four feet square. Palmer stated that he had seen the opening before, and that there was never to his knowledge any barricade or banister around it, or a cover over it.

Robert Pistana, another co-worker, testified that at the moment of the accident he was stepping from the roof onto the scaffolding to continue working with the bricklayers when he heard a yell. He stated that he saw Horan bend over and pick up a fairly large piece of plywood, and saw the top of his body as he fell through the hole. Pistana stated that the piece of plywood had covered the hole, and that there was no sign or marking indicating that the wood covered a hole. He said that he had thought that the cover was just another piece of plywood lying on the roof. He described the plywood piece as fairly good size, three by four feet, probably three-quarters of an inch thick.

Defendant raises three issues on appeal: (1) sections 200, 241 and 241--a of the Labor Law do not apply to the owner, Dormitory Authority; (2) there was no violation of either the Labor Law or the Industrial Code, and the plaintiff's complaint should be dismissed; and (3) the verdicts of the jury were excessive as a matter of law and fact.

The trial court based its direction of the verdict against the respondent solely upon the alleged violation of the provisions of section 241--a of the Labor Law. Therefore, the disposition of the first issue raised by defendant rests on whether section 241--a applies to it under the circumstances, and whether there was a violation of the section.

Section 241--a of the Labor Law provides as follows:

' § 241--a. Protection of workmen in or at elevator shaftways, hatchways and stairwells

'Any men working in or at elevator shaftways, hatchways and stairwells of buildings in course of construction or demolition shall be protected by sound planking at least two inches thick laid across the opening at levels not more than two stories above and not more than one story below such men, or by other means specified in the rules of the board.'

Section 241--a requires that stairwells in buildings under construction be protected by a cover of 'sound' planking laid across the opening at levels 'not more than one story below' where men are working, which section has been strictly construed applying to owners of the building as well as contractors. (Koploff v. St. Vincent Ferrer Church, 39 A.D.2d 581, 331 N.Y.S.2d 719, app. dsmd. 30 N.Y.2d 949, 335 N.Y.S.2d 700, 287 N.E.2d 390; Haskins v. City of New York, 28 A.D.2d 656, 280 N.Y.S.2d 773; Vassiliades v. Blitz, 36 Misc.2d 5, 232 N.Y.S.2d 469.) Further, contributory negligence is not a defense where a violation of this section is involved. (Koploff v. St. Vincent Ferrer Church, Supra.)

It is undisputed that defendant failed to provide a sound planking covering at any level below the roof area where the infant plaintiff was working and, as a result, he was caused to fall four stories uninterrupted to the ground below. In Joyce v. Rumsey Realty Corp., 17 N.Y.2d 118, 269 N.Y.S.2d 105, 216 N.E.2d 317, a contractor was held to be liable under section 241--a of the Labor Law. The court found the duty imposed by the statute to be 'a flat and unvarying' one and 'conclusive evidence of negligence' calling for a directed verdict. In the case of Haskins v. City of New York, Supra, the action, based on section 241--a, was against the owner of the premises in which the accident occurred, and the Appellate Division directed a verdict in favor of plaintiff on the issue of liability.

The court stated at page 657 of 28 A.D.2d, at page 775 of 280 N.Y.S.2d:

'Section 241--a employs broad and all-inclusive language. Clearly designed to broaden the cloak of protection to all workers engaged in hazards of work near stairwells, it affects all those having the over-all responsibility for the demolition of a building. In this case, the City. While section 240 of the Labor Law may not apply to an owner who engaged an independent contractor to perform the work, section 241 does impose a nondelegable duty on owners, making them liable for its violation even though the work is being performed by an independent contractor. * * * The purpose of section 241--a being similar to that of section 241, the sections should be read In para materia. Therefore, we conclude that section 241--a casts a nondelegable duty upon the City (the owner of the building).'

Defendant also argues that subdivision d of section 23.11 (since repealed) of the Industrial Code, requiring that 'to minimize injuries from falls, a tight wooden platform of two inch planks, three-quarters inch plywood or equivalent, or a life net shall be installed not more than one story below the level where the men are working', was complied with. The mere placing of an unsecured and unmarked piece of plywood over a hole is by no means a tight covering. A plywood covering should be secured to prevent someone from inadvertently picking it up or to keep it from sliding or blowing away. (Cf. Skibicki v. Diesel Constr. Co., 56 Misc.2d 955, 290 N.Y.S.2d 83, affd. 29 A.D.2d 1050, 290 N.Y.S.2d 860.) No such precaution was taken here and it cannot be argued that defendant complied with either the specific requirements or general intent of the Industrial Code. In addition, it is questionable whether or not the plywood covering on the roof met the requirements of the code. The only testimony relative to the description of the plywood piece is Pistana's testimony that it was three by four feet, probably three-quarters of an inch thick. The rule of the board requires 'three-quarters plywood or equivalent' and we submit that the evidence does not prove that such was met.

In the case of Gorman v. Grand Central Building, 29 A.D.2d 849, 287 N.Y.S.2d 929, affd. 22 N.Y.2d 821, 292 N.Y.S.2d 916, 239 N.E.2d 655, it was undisputed that the shaftway at the 30th floor was covered by planking at least two inches thick and, therefore, section 241--a had been complied with.

Defendant places great reliance on the case of Bidetto v. New York City Housing Auth., 25 N.Y.2d 848, 303 N.Y.S.2d 695, 250 N.E.2d 735, for the proposition that an owner is liable for a lack of compliance with sections 200 and 241 of the Labor Law, only if the owner has direction and control of the work and/or the injury occurred in 'an area of common usage in the construction over which the owner retained control.' As previously stated, the trial court based its decision in this case on a violation of section 241--a of the Labor Law which was not involved in any way in the Bidetto case where the injured party was working as a brick layer and was injured by falling bricks from the floor above where he was working, placed there by his employer the contractor.

Defendant further contends that the verdicts for the infant plaintiff in the sum of $350,000 and for his father in the sum of $15,000 were excessive. The infant plaintiff suffered severe injuries including a fractured skull, cerebral concussion and contusion of the brain with permanent brain damage and, in addition, diabetes insipidus, a glandular disease. There is ample evidence in the record to establish that had the accident not occurred, Thomas Horan would have successfully completed his studies at Albany College of Pharmacy and become a pharmacist earning something in excess of $10,000 per year immediately after graduation. The record also shows that after the accident he may never have the mental or physical capability to work at all. A loss of earnings of $10,000 per year for 50 years would total $500,000 in itself, with no consideration at all of medical expenses, pain and suffering, or humiliation. Plaintiff had the intelligence and opportunity to complete pharmacy school and to pursue a career as a pharmacist. Therefore, a verdict of $350,000 to compensate him for a loss of potential earnings, pain and suffering, is not excessive.

As for Daniel Horan, the verdict of $15,000 is clearly excessive. Medical expenses incurred during the period of Thomas' minority were slightly in excess of $5,000, so the verdict included nearly $10,000 for loss of services. The accident occurred on August 21, 1967,...