Long v. Forest-Fehlhaber, FOREST-FEHLHABE

• Decision Date: 18 February 1982
• Docket Number: FOREST-FEHLHABE,D
• Citation: 448 N.Y.S.2d 132,55 N.Y.2d 154,433 N.E.2d 115
• Parties: , 433 N.E.2d 115 Ernest A. LONG, Jr., Respondent, v.efendant-Appellant and Third-Party Plaintiff-Appellant, Walsh Corbetta Construction Company, Third-Party Defendant-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 132

448 N.Y.S.2d 132

55 N.Y.2d 154, 433 N.E.2d 115

Ernest A. LONG, Jr., Respondent, v. FOREST-FEHLHABER, Defendant-Appellant and Third-Party Plaintiff-Appellant Walsh Corbetta Construction Company, Third-Party Defendant-Respondent.

Court of Appeals of New York.

Feb. 18, 1982.

William F. McNulty, Anthony J. McNulty, New York City, and Frank J. Warner, Jr., Albany, for defendant-appellant and third-party plaintiff-appellant.

Martin Brickman, Albany, for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

This appeal calls upon us to say whether contributory negligence, as to pre-September, 1975 accidents, or comparative negligence, as to ones occurring since then, ¹ is a defense to an action premised on the violation of rules promulgated by the State Board of Standards and Appeals pursuant to subdivision 6 of section 241 of the Labor Law. ² The issue arises in the following factual and procedural context: The plaintiff, Ernest A. Long, Jr., an experienced concrete finisher employed by the third-party defendant, Walsh Corbetta Construction Company, was injured at approximately 7:15 a. m. on February 3, 1975 at the construction site of the South Mall of the State Capitol in Albany. The occurrence took place when, while walking on the "pitch black" flooring of a temporary passageway which led to a shack in the area where he was to work, he tripped over an exposed electrical conduit. Long brought suit against the defendant, Forest-Fehlhaber, Joint Venture, the electrical contractor on the job, who, in turn, cross-complained against Walsh Corbetta. The case has now been tried twice.

At the first trial, the Judge sent the case to the jury essentially on the theory that, while Forest-Fehlhaber was at fault in failing to comply with Board of Standards and Appeals rule 23-1.30 (12 NYCRR 23-1.30), which governed illumination of the passageway involved, ³ contributory negligence on the part of the plaintiff could be a complete defense. Concordantly, the defendant had contended that Long, though he had every reason to expect midconstruction objects to be in his path, knowingly entered the yet unlit path on which he met with his injury some three quarters of an hour before the expected starting time for employees. The general verdict of the jury was for the defendant. ⁴ But, the Appellate Division, deeming the charge on contributory negligence erroneous, modified, on the law, by reversing so much of the judgment as dismissed the cause of action grounded on a violation of subdivision 6 of section 241 of the Labor Law and dismissed the third-party complaint and, as to each, ordered a new trial at which the sole liability issues were to be "(1) whether the defendant breached its duty under subdivision 6 of section 241 of the Labor Law 'to provide reasonable and adequate protection and safety to the persons employed therein' and (2) if such a breach be found, whether it proximately caused the plaintiff's injuries" 74 A.D.2d 167, 172, 427 N.Y.S.2d 649; Justice Staley filed a sole dissent.

It was on this theory, and under a specific instruction that Long's own negligence would not be a defense, that the second trial ensued. On this occasion, the jury, its specific findings crystallized by special interrogatories submitted to it by the court, found that both defendant Forest-Fehlhaber and third-party defendant Walsh Corbetta had violated subdivision 6 and that, by way of apportionment under Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, each was liable for one half of the damages to which the jury found the plaintiff was entitled.

On the present appeal by Forest-Fehlhaber, taken pursuant to CPLR 5601 (subd. ) from the final judgment entered after the second trial, the nonfinal order by which the Appellate Division modified the judgment entered after the first trial is now before us for review. ⁵ For the reasons which follow, we believe this order should be reversed.

We begin our analysis by noting that the Appellate Division, in holding contributory negligence alien to the case, expressly relied on an overliteral interpretation of the single use of the phrase "absolute liability" as it appeared in Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 300, 405 N.Y.S.2d 630, 376 N.E.2d 1276 in a sentence stating that "the 1969 legislation fashions absolute liability upon an owner or contractor for a breach of the duties imposed by subdivisions 1 through 6 of section 241 irrespective of their control or supervision of the construction site". In so construing these words, which, in the context of the Allen opinion, merely were intended to emphasize the nondelegable nature of the duties the newly enacted statute imposed on owners and contractors rather than to upgrade these duties, insufficient stress was laid on the remainder of the text, including, pertinently, the qualifying phrase "irrespective of their control or supervision" in the remainder of the very same sentence in which "absolute liability" appears. Indeed, not only had the immediately preceding sentence expressly referred to owners' and contractors' "nondelegable duty", but the opening paragraph of the opinion defined the sole issue before the court to be "whether an owner or general contractor may be held to answer for the damages * * * absent a showing that they controlled, directed or supervised the work site". Most decisively, Allen recognized that a violation of an administrative regulation, though promulgated by leave of a statute, is simply some evidence of negligence (Allen v. Cloutier Constr. Corp., supra, at p. 298, 405 N.Y.S.2d 630, 376 N.E.2d 1276).

Moreover, only some months later, in Haimes v. New York Tel. Co., 46 N.Y.2d 132, 136, 412 N.Y.S.2d 863, 385 N.E.2d 601, after referring to the Legislature's intent to place " 'ultimate responsibility for safety practices * * * where such responsibility actually belongs, on the owner and general contractor' (N.Y.Legis.Ann., 1969, p. 407)", we stated that "doubt may have remained that it had succeeded in doing so as to section 241 was laid to rest by our recent decision in Allen v. Cloutier Constr. Corp.". In short, the thrust of Allen was that "ultimate responsibility" or "absolute liability" or "nondelegability" of the duty of an owner or general contractor under subdivision 6 of section 241, whatever the niceties of its articulation, was unavoidable only in the sense that it could not be delegated to another rather than, as the majority of the Appellate Division mistakenly assumed, that the owner or general contractor would not be allowed to raise any defense to the imposition of liability (see Monroe v. City of New York, 67 A.D.2d 89, 103, 414 N.Y.S.2d 718).

This, of course, is reinforced by the principle, long and firmly established in New York, that the violation of a rule of an administrative agency or of an ordinance of a local government, lacking the force and effect of a substantive legislative enactment, is "merely some evidence which the jury may consider on the question of defendant's negligence" (Teller v. Prospect Hgts. Hosp., 280 N.Y. 456, 460, 21 N.E.2d 504). Unlike a violation of the explicit provisions of a statute proper, a breach of an administrative rule, because it does not establish negligence as a matter of law, does not render a plaintiff's own...