Kelly v. Diesel Const. Division of Carl A. Morse, Inc.

• Decision Date: 10 July 1974
• Docket Number: PERSONNEL-MATERIAL,CHESEBRO-WHITMAN
• Citation: 358 N.Y.S.2d 685,35 N.Y.2d 1,315 N.E.2d 751
• Parties: , 315 N.E.2d 751 Harold J. KELLY, Respondent, v. DIESEL CONSTRUCTION DIVISION OF CARL A. MORSE, INC., Respondent. WHITEHOIST CO., INC., Appellant, andCO. DIVISION OF PATENT SCAFFOLDING CO.-HARSCO CORP. et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 685

358 N.Y.S.2d 685

35 N.Y.2d 1, 315 N.E.2d 751

Harold J. KELLY, Respondent, v. DIESEL CONSTRUCTION DIVISION OF CARL A. MORSE, INC., Respondent WHITE PERSONNEL-MATERIAL HOIST CO., INC., Appellant and CHESEBRO-WHITMAN CO. DIVISION OF PATENT SCAFFOLDING CO.-HARSCO CORP. et al., Respondents.

Court of Appeals of New York.

July 10, 1974.

Richard Bakalor and Robert E. Quirk, New York City, for appellant.

Morris Zweibel, New York City, for Diesel Const. Div. of Carl A. Morse, Inc., respondent.

BREITEL, Chief Judge.

In a negligence action, a subcontractor's employee recovered a judgment for $43,000 for personal injuries sustained by him. The general contractor and a negligent hoist company were jointly cast in judgment. On its cross claim the general contractor, Diesel, recovered a judgment for the full amount against the negligent hoist company, White. The hoist company appeals. The principal issue is whether a general contractor held liable to an injured subcontractor's employee under sections 240 and 241 of the Labor Law, Consol. Laws, c. 31, is entitled to indemnification or contribution from a hoist company whose negligence, in whole or in part, caused the accident. The right is asserted under common-law principles and not by virtue of an indemnification covenant or agreement.

The issue of liability was tried separately before a jury which, on a general verdict with interrogatories, found only the hoist company liable to plaintiff and that the accident was due solely to the hoist company's negligence. The court, however, granted judgment for plaintiff against the general contractor, as a matter of law, based on the finding of negligence solely against the hoist company. The amount of damages was stipulated, and the trial court, without a jury, held that the general contractor was entitled to full indemnification from the hoist company. The Appellate Division affirmed.

There should be an affirmance. The general contractor, Diesel, was entitled to contribution or indemnification from the hoist company, White. By its verdict, the jury found White, among all defendants, to be solely responsible for the accident. Diesel was liable by statutory impotation of White's negligence. The older rule that sections 240 and 241 deprived an owner or general contractor, regardless of where the fault lay, of the right to contribution or indemnification for construction, maintenance, excavation, or demolition accidents is no longer applicable. This is so in light of the universality of insurance and current doctrine favoring apportionment of damages among joint tort-feasors.

Plaintiff Harold Kelly was a steamfitter employed by a subcontractor, Raisler Corporation, in the construction of a 40-story office building in Manhattan. He was injured in July, 1967 when the personnel elevator hoist on which he and others were descending fell 20 floors to the bottom of the shaft. The hoist had been furnished for the use of all construction workers and tradesmen. Kelly had ridden it daily for some six months.

Diesel, as general contractor, undertook to furnish, maintain and operate the hoist. By various intermediate subcontracts it was White's responsibility to supply and maintain the hoist, particularly its brakes and other safety devices. White inspected the equipment before installation and regularly thereafter every one or two weeks.

As noted, after a trial on the liability issue alone, the jury returned a general verdict in favor of plaintiff Kelly against White alone, and by answers to interrogatories, found that the malfunctioning of the hoist was caused by a 'defective brake', and a 'defective bottom final limit switch', due to improper maintenance by White. The trial court set aside the verdict in favor of Diesel and directed a verdict against it as a matter of law. The court held that improper maintenance by the hoist company White must be imputed to the general contractor, in light of its 'nondelegable duty' to provide a safe place to work. The duty derives from sections 240 and 241 of the Labor Law, as they read at the time of the accident in 1967. The court then went on, by stipulation of the parties, to decide the general contractor's cross claim against the hoist company White and awarded it full indemnification under the rule of Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288.

Sections 240 and 241 have been uniformly construed to impose nondelegable duties on owners and general contractors for breach of which they are deemed primary or 'active' tort-feasors and are denied indemnification from joint tort-feasors. This is so even if the joint tort-feasor had been, in fact, solely responsible for the accident and indemnification would otherwise lie at common law (Rufo v. Orlando, 309 N.Y. 345, 350, 130 N.E.2d 887, 889: Semanchuck v. Fifth Ave. & 37th St. Corp., 290 N.Y. 412, 421--423, 49 N.E.2d 507, 509--511; Walters v. Rao Elec. Equip. Co., 289 N.Y. 57, 61--62, 43 N.E.2d 810, 811--812; Tully v. Roosevelt Props., 34 A.D.2d 786, 311 N.Y.S.2d 41). It was said that the rule accorded with legislative purpose not merely to create a fund for the injured workman's recovery, but to prevent accidents. This sanction was thought necessary to compel a high standard of care (see Rufo v. Orlando, 309 N.Y. 345, 350--351, 130 N.E.2d 887, 889--890, Supra). Notably, and quite inconsistent with this attributed purpose, the liability might still be shifted by insurance or express indemnification agreements (see Semanchuck v. Fifth Ave. & 37th St. Corp., Supra).

Were the rule last discussed retained, the doctrine of Dole v. Dow Chem. Co. (supra) would not permit Diesel a right of contribution or indemnification from White. Dole recast the analysis and terminology categorizing active and passive tortfeasors and primary and secondary liability. It did not alter or detract from the right of one held only vicariously liable to obtain full indemnification from the party wholly responsible for the accident (see Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 564--566, 347 N.Y.S.2d 22, 30--33, 300 N.E.2d 403, 409--410). Nor would it alter the rule of Semanchuck and like cases which barred the shifting of the vicarious liability, described as 'nondelegable', imposed by sections 240 and 241.

There is no good reason to continue the artificial policy involved in denying an owner or contractor, liable vicariously only under the applicable sections of the Labor Law, from obtaining indemnification under common-law principles, or, in a proper case, contribution under the doctrine in Dole v. Dow Chem. Co. (supra). The owner or general contractor almost universally, if not indeed universally, covers his liability, primary or secondary, with liability insurance. In most instances he requires a covenant of indemnification from his subcontractors or suppliers, which the courts have always accepted as enforceable and not a violation of public policy. It is...