Koenig v. Patrick Const. Corp.

• Decision Date: 02 December 1948
• Citation: 83 N.E.2d 133,298 N.Y. 313
• Parties: KOENIG v. PATRICK CONST. CORPORATION.
• Court: New York Court of Appeals Court of Appeals

298 N.Y. 313

83 N.E.2d 133

KOENIG

v.PATRICK CONST. CORPORATION.

Court of Appeals of New York.

Dec. 2, 1948.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Isidore Koenig against the Patrick Construction Corporation to recover for injuries sustained by the plaintiff when ladder on which he was working slipped. From a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department, entered November 12, 1947, 272 App.Div. 1032, 74 N.Y.S.2d 19, affirming, by a divided court, a judgment of the Supreme Court in favor of the defendant entered in Queens County upon a verdict rendered at a Trial Term, the plaintiff appeals.

Judgment reversed and a new trial granted. Bernard Meyerson, of Brooklyn, and Herman B. Zipser, of New York City, for appellant.

Albert P. Thill, John P. Smith and Thomas F. Keane, all of New York City, for respondent.

FULD, Judge.

We are called upon to determine whether, in the action for damages brought by an injured worker on the strength of section 240 of the Labor Law, Consol.Laws, c. 3, a defendant may assert the worker's contributory negligence as a defense.

Plaintiff, a window cleaner, had been hired as an independent contractor by defendant to do the work necessary on the windows of a school which defendant was engaged in constructing. On the day of the accident, February 7, 1941, plaintiff was atop a ladder, some 16 or 17 feet above the floor, scraping and removing paint from one of the large windows in the auditorium. While plaintiff was thus engaged, the ladder which had been placed by him against the wall, with its base some 4 feet from the wall slipped out and hurled him to the floor. It was plaintiff's claim that, in spite of his protests, he had been directed by defendant's employees to use the ladder in order to reach the windows; that the ladder, a straight, wooden, rung-type affair about 20 feet long, was without the usual devices at the bottom called ‘safety shoes' to prevent slipping when the ladder was in use; and that it likewise lacked notches to which such safety shoes could be fitted.

Plaintiff, seriously injured, commenced this suit for damages predicated primarily upon defendant's asserted failure to comply with the requirements of section 240 of the Labor Law. That statute provides, in part, that a person ‘employing or directing another to perform labor of any kind in the erection * * * repairing * * * painting, cleaning or pointing of a building or structure shall furnish * * * or cause to be furnished * * * scaffolding * * * ladders,’ or any other safe equipment required for the worker's protection.

Upon the trial, the court charged, that under section 240, plaintiff could recover only if he proved (1) that defendant ‘assumed to furnish this ladder to the plaintiff to be used under the circumstances under which it was used, and that those circumstances were such that the danger of an accident was foreseeable by the defendant’; (2) that defendant ‘failed in its duty’, and (3) that plaintiff had not ‘contributed any negligence to the accident himself.’

The jury returned a verdict in favor of defendant, and because of the last item of instruction, the possibility is present that that verdict in defendant's favor was predicated upon a finding that plaintiff had been guilty of contributory negligence. In the view which we take of the law, that would be an erronous basis for the verdict. That error in the charge requires reversal, despite the fact that it is quite likely considering the entire record that the jury found that defendant did not violate section 240, and, accordingly, did not even reach the question of plaintiff's contributory negligence.

Though defendant was also charged with common-law negligence, the gravamen of the complaint, as indicated, was that defendant was liable for having violated its statutory duty to furnish plaintiff safe equipment. Of course, if defendant did actually direct the work, it is of no moment we simply note in passing that plaintiff happened to be an independent contractor rather than an ordinary employee. See, e. g., Sdoia v. Cawley, 290 N.Y. 847, 50 N.E.2d 240;Weber v. State, Ct.Cl., 53 N.Y.S.2d 598. Plaintiff, being thus included within the class protected, is entitled to the full benefit of the statute.

Firmly established is the principle of law that a plaintiff's carelessness is no bar to his recovery under a statute which imposes liability ‘regardless of negligence’. See Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 305, 306, 200 N.E. 824, 830, 104 A.L.R. 450. Obviously, not every statute which commands or prohibits particular conduct is within this principle. Only when the statute is designed to protect a definite class of persons from a hazard of definable orbit, which they themselves are incapable of avoiding, is it deemed to create a statutory cause of action and to impose a liability unrelated to questions of negligence. This rule is based upon the view that, not being dependent upon proof of specific acts of negligence on defendant's part, the cause of action may not be defeated by proof of plaintiff's want of care. Thus, it has been said, ‘If the defendant's negligence consists in the violation of a statute enacted to protect a class of persons from their inability to exercise self-protective care, a member of such class is not barred by his contributory negligence from recovery for bodily harm caused by the violation of such statute’. Restatement, Torts, s 483.

Irrespective of how the courts may once have viewed the question (cf., e. g., Maleeny v. Standard Shipbuilding Corp., 237 N.Y. 250, 142 N.E. 602;Maloney v. Cunard S. S. Co., 217 N.Y. 278, 111 N.E. 835;Gombert v. McKay, 201 N.Y. 27, 94 N.E. 186, 42 L.R.A.,N.S., 1234), it is our judgment that both sound reason and persuasive decisions, involving statutes whose content and purpose are similar to those of section 240, require the conclusion that that statute does not permit the worker's contributory negligence to be asserted as a defense. See, e. g., Pollard v. Trivia Bldg. Co., 291 N.Y. 19, 50 N.E.2d 287;Teller v. Prospect Heights Hosp., 255 App.Div. 488, 8 N.Y.S.2d 274, reversed on other grounds 280 N.Y. 456, 21 N.E.2d 504;Lowenhar v. Commercial Outfitting Co., 260 App.Div. 211, 21 N.Y.S.2d 112, affirmed 285 N.Y. 671, 34 N.E.2d 376;Stern v. Great Island Corp., 250 App.Div. 115, 293 N.Y.S. 608;Osborne v. Salvation Army, 2 Cir., 107 F.2d 929,Labor Law, s 202; Karpeles v. Heine, 227 N.Y. 74, 124 N.E. 101, Labor Law, s 93; Schmidt v. Merchants Despatch Transp. Corp., supra, 270 N.Y. 287, 303, 304, 306, 200 N.E. 824, 828, 829, 830, 104 A.L.R. 450,Labor Law, s 299. For example, in construing a statute of...