Kelly v. Diesel Const.

• Citation: 70 Misc.2d 686,334 N.Y.S.2d 309
• Parties: Harold J. KELLY, Plaintiff, v. DIESEL CONSTRUCTION, a division of Carl A. Morse Inc., et al., Defendants.
• Decision Date: 02 May 1972
• Court: New York Supreme Court

Page 309

334 N.Y.S.2d 309

70 Misc.2d 686

Harold J. KELLY, Plaintiff, v. DIESEL CONSTRUCTION, a division of Carl A. Morse Inc., et

al., Defendants.

Supreme Court, Trial Term, New York County, Part 63.

May 2, 1972.

Kuzmier, McKeon & Carrion (James T. McKeon, New York City, of counsel), for plaintiff.

Craig & Geen (Stanley Geen, New York City, of counsel), for Diesel Construction, a division of Carl A. Morse Inc. and Construction Cleaning Service, Inc., defendants.

McMahon & Lyons (William T. Alt, New York City, of counsel), for Chesebro Whitman Co., defendant.

MacIntyre, Burke & Curry (Thomas F. Cohalan, New York City, of counsel), for White-Personnel-Material Hoist Co., defendant.

ALLEN MURRAY MYERS, Judge.

Plaintiff, a steamfitter employed by a subcontractor in the construction of a 40-story office building, was injured when a personnel-material hoist fell more than twenty stories to the bottom of the shaft. He brought an action to recover damages against the general contractor (Diesel) who undertook to and did in fact furnish, maintain and operate the hoist for the use of the employees of all of the subcontractors on the job; the subcontractor (Chesebro), to whom the general contractor had subcontracted the job of furnishing, installing and maintaining the hoist and the shaft or hoist tower; the sub-subcontractor (White) from whom the subcontractor, Chesebro leased the hoist and to whom Chesebro subcontracted the duty of maintaining the hoist in a safe operating condition; and the subcontractor (Construction) to whom the general contractor had subcontracted the operation of the hoist.

Plaintiff brought this action against the defendants on theories of common-law negligence, violation of sections 200(1), 240, and 241 of the Labor Law in effect on July 13, 1967, the date of the accident, and breach of warranty. But plaintiff abandoned the theory of breach of warranty.

At the trial on the issue of liability only, the Court charged the jury with common-law negligence, violations of sections 200(1) and 241 of the Labor Law, (by consent reserved to itself the issues of the general contractor's violation of section 240 of the Labor Law the cross-claims of the defendants among themselves) and submitted to the jury the following interrogatories which it answered as indicated:

1) Was the malfunctioning of the hoist caused by any or all of the following:

(a) A defective brake? Answer--Yes

(b) A defective bottom final limit switch? Answer--Yes

(c) Defective operation, the failure to apply the switch to actuate the emergency brake? Answer--No

2) Did the defendant, White Personnel-Material Hoist Co., Inc. furnish to the construction job, by lease to the defendant Chesebro-Whitman Co., a hoist containing

(a) A defective brake? Answer--No

(b) A defective bottom final limit switch? Answer--No 3) Did the defendant Chesebro-Whitman Co. furnish and install at the construction job, pursuant to a contract with the defendant, Diesel Construction, a hoist containing

(a) A defective brake? Answer--No

(b) A defective bottom final limit switch? Answer--No

4) Did the defendant, Chesebro-Whitman Co. Know or in the exercise of reasonable care should it have known that the hoist which it furnished was defective? Answer--No

5) Did the defendant, White Personnel-Material Hoist Co., Inc. know or in the exercise of reasonable care should it have known that the hoist which it leased to Chesebro-Whitman Co. was defective? Answer--No

6) Did White Personnel-Material Hoist Co. Inc. maintain the hoist after it was installed at the job site in a reasonably safe condition? Answer--No

7) Did the defendant, Diesel Construction know, or in the exercise of reasonable care should it have known that the hoist was defective? Answer--No

The jury returned a general verdict only against the defendant, White and by the answers to the interrogatories found that the malfunctioning of the hoist was caused by a defective brake, a defective bottom switch, and by White's defective maintenance.

Upon the motion of White and upon the Court's own motion the Court set aside the verdict in favor of Diesel and directed a verdict against it as a matter of law. See Sarnoff v. Chas. Schad, Inc., 22 N.Y.2d 180, 292 N.Y.S.2d 93, 239 N.E.2d 194.

A verdict was directed against Diesel on the grounds that as a general contractor who had undertaken to furnish, maintain and operate a hoist for the use of employees of its subcontractos, it could not avoid its common law and statutory duties by the simple expedient of delegating this obligation to another subcontractor. (Besner v. Central Trust Co., 230 N.Y. 357, 130 N.E. 577; Rumetsch v. Wanamaker, New York, Inc., 216 N.Y. 379, 110 N.E. 760; Sciolaro v. Asch, 198 N.Y. 77, 91 N.E. 263; Stott v. Churchill, et al., 15 Misc. 80, 36 N.Y.S. 476, aff'd. 157 N.Y. 692, 51 N.E. 1094; Hanley v. Central Savings Bank, 255 App.Div. 542, 8 N.Y.S.2d 371, aff'd. 280 N.Y. 734, 21 N.E.2d 513; Chandler v. Glaser Contracting Co., 80 N.Y.S.2d 502).

The courts have so held because an elevator, which a personnel hoist really is, is fraught with obvious danger if not properly maintained.

Sections 200 and 241 of the Labor Law (as of 1967) were merely codifications of the common law which required a general contractor to provide his subcontractors and their employees with a safe place to work and safe ingress and egress or ways and approaches thereto. Butler v. D.M.W. Contracting Co., Inc., et al., 286 App.Div. 828, 142 N.Y.S.2d 24, aff'd. 309 N.Y. 990, 132 N.E.2d 898; Iacono v. Frank & Frank Contracting Co., 259 N.Y. 377, 182 N.E. 23; Caspersen v. La Sala Bros., 253 N.Y. 491, 171 N.E. 754; Gambella v. Johnson & Sons, 285 App.Div. 580, 140 N.Y.S.2d 208. The hoist provided by Diesel was a means of ingress and egress.

Proof of notice of an unsafe condition, actual or constructive, is a prerequisite to the imposition of liability under sections 200 and 241 of the Labor Law. (Schnur v. Shanray Construction Corp., et al., 31 A.D.2d 513, 294 N.Y.S.2d 652; Zinsenheim v. Cong. Beth David, 10 A.D.2d 501, 200 N.Y.S.2d 753; Zaulich v. Thompkins Square Holding Co., Inc., 10 A.D.2d 492, 200 N.Y.S.2d 550; Dittiger v. Isal Realty Corp., 264 App.Div. 279, 35 N.Y.S.2d 311, revd. on other grounds, 290 N.Y. 492, 49 N.E.2d 980; De Luca v. Fehlhaber Corp., 38 Misc.2d 184, 237 N.Y.S.2d 852). Since the jury found that Diesel neither had actual nor constructive notice of the dangerous condition of the hoist, liability to the plaintiff could not be foisted upon it were it not for the fact that Diesel's duty to furnish the plaintiff with a reasonably safe hoist was non-delegable. Diesel could not escape liability for the failure of White to maintain the hoist in a reasonably safe condition merely because Diesel had delegated the duty of maintenance to a subcontractor who had delegated it to White. Therefore, as a matter of law, Diesel must be held liable to the plaintiff for the breach of its non-delegable duty to furnish the plaintiff with a hoist in a reasonably safe operating condition.

I also find as a matter of law that Diesel violated section 240 of the Labor Law. A violation of this statute makes one absolutely liable to the class of persons for whose benefit the statute was enacted without regard to the principles of negligence. (Sarnoff v. Charles Schad, Inc., Supra; Quigley v. Thatcher, 207 N.Y. 66, 100 N.E. 596; Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 83 N.E.2d 133; Tully v. Roosevelt Properties, Inc., 34 A.D.2d 786, 311 N.Y.S.2d 41; Galbraith v. Pike & Son, 18 A.D.2d 39, 238 N.Y.S.2d 263.)

In the case at bar Diesel furnished the hoist in question for the use of its subcontractors and their employees, of which the plaintiff was one. The plaintiff was thus required by Diesel to use the hoist to get to and from his place of work. Plaintiff was compelled to use the hoist for there was no other practical way to get to and from the 38th floor where he was working. Diesel furnished the hoist because it was obviously necessary for the efficient performance of the work of construction. I can see no material difference between the factual pattern in the case at bar and that in Sarnoff v. Charles Schad, Inc., Supra except that in Sarnoff the general contractor had furnished 'scaffolds to be used in the work and, thereby impliedly required the workmen to use them' (22 N.Y.2d p. 185, 292 N.Y.S.2d p. 97, 239 N.E.2d p. 196), whereas in the case at bar the contractor had furnished a hoist. Section 240 specifically mentions the furnishing of hoists as well as scaffolding and 'other devices which shall be so constructed . . . and operated as to give proper protection to a person so employed or directed.'

The hoist was a most necessary and integral part of the work of construction. Without it the furnishing of men and materials when and where needed would become impossible and construction would come to a halt. In Tully v. Roosevelt, Supra, a general contractor was held liable to an employee of a subcontractor who was injured by a defective material hoist even though a subcontractor owned the well-wheel and rope. If anything, more care should be taken with a personnel hoist, as here involved, where lives are at stake. As stated in Quigley, supra (p. 68, 100 N.E. p. 596):

'This statute is one for the protection of workmen from injury, and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed.'

Diesel's argument that Section 240 only covers material hoists and not personnel hoists makes a mockery of the statute when one considers that the statute's purpose was to safeguard workingmen from injury from faulty equipment furnished them in construction or demolition work which they have no choice but to use. Accordingly, Diesel is held to be liable to plaintiff for violating the absolute duty imposed upon it by Section 240 of the Labor Law to furnish plaintiff with a reasonably safe hoist. Section...