Long v. Forest-Fehlhaber, Joint Venture, FOREST-FEHLHABE

• Decision Date: 08 May 1980
• Docket Number: JOINT,FOREST-FEHLHABE
• Citation: 427 N.Y.S.2d 649,74 A.D.2d 167
• Parties: Ernest A. LONG, Jr., Appellant, v.VENTURE, Defendant and Third-Party Plaintiff-Respondent; Walsh Corbetta Construction Company, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 649

427 N.Y.S.2d 649

74 A.D.2d 167

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

Supreme Court, Appellate Division, Third Department.

May 8, 1980.

Martin Brickman, Albany, for appellant.

Ainsworth, Sullivan, Tracy & Knauf, Albany (Frank J. Warner, Jr., Albany, of counsel), for defendant and third-party plaintiff-respondent.

Before GREENBLOTT, J. P., and SWEENEY, KANE, STALEY and CASEY, JJ.

OPINION FOR MODIFICATION

CASEY, Justice.

The principal issue raised by the appeal is whether contributory negligence is a defense to a violation of section 241 (subd. 6) of the Labor Law, as amended in 1969. The question arises in the following context.

On February 3, 1975, between 7:20 A.M. and 7:45 A.M. the plaintiff, a cement finisher employed by the third-party defendant, sustained personal injuries when he fell over an electrical conduit allegedly installed by the defendant, the contractor for temporary electrical service, at the South Mall project. The fall occurred in a passageway that had been provided for workmen as an easy access to the job site. To get to his job, the plaintiff's path was through a temporary door, down a ramp four to six feet long, and into a large room where two rows of concrete blocks piled five feet high on pallets formed an aisleway about three or four feet wide. A series of lights with uncovered bulbs was placed overhead and spaced every two to four feet. On the day of the accident, the plaintiff claims the bulbs had not been lit and without such illumination it was possible to see the concrete blocks only with the entrance door open, but that the area was dark with the door closed. One light bulb was lit, well ahead of the plaintiff, and provided a direction as the plaintiff made his way along the aisle. With no light at his feet he stumbled and fell over a conduit pipe, many of which he claims had been installed by the defendant in that area and projected upward from the floor nine to twelve inches.

The contract for temporary electrical service between the defendant and the State architect's office provided that temporary lighting be

maintained and energized from a period starting fifteen minutes before the earliest established starting time for any trade and fifteen minutes after the latest established quitting time for any trade.

There was testimony that the trades ordinarily started at 8:00 A.M., requiring the system to be lit at 7:45 A.M. The plaintiff's testimony revealed that he had arrived at work before 7:45 A.M. and that the accident happened before that time.

The original complaint alleged only common law negligence. After the trial had started on May 1, 1978, the plaintiff moved, and was granted permission by the court, to amend the complaint to include violations of sections 200 and 241 (subds. 6, 7, 8) of the Labor Law. On May 2, 1978, the Court of Appeals decided Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 405 N.Y.S.2d 630, 376 N.E.2d 1276.

On the facts, as generally outlined above, the court charged, without exception by the plaintiff, common law negligence and also the violations of the Labor Law that it had permitted to be added during the trial. Without attempting to limit or to apply contributory negligence to any specific cause of action, the court charged generally that any contributory negligence on the plaintiff's part would bar his recovery under all of the submitted causes of action and theories of liability. The accident having occurred before September 1, 1975 such an instruction was proper as to common law negligence (Nelson v. Nygren, 259 N.Y. 71, 181 N.E. 52) and as to section 200 of the Labor Law (Holgerson v. South 45th St Garage, 16 A.D.2d 255, 227 N.Y.S.2d 195, affd. 12 N.Y.2d 1011, 239 N.Y.S.2d 134, 189 N.E.2d 628) and would be proper as to section 241 (subd. 6) of the Labor Law if a violation of that statute does not impose absolute liability on the defendant contractor. Although no exception was taken by the plaintiff to the charge as given by the court, the jury returned to the courtroom after it had commenced deliberations to ask a question as to the action to be taken if "the negligence is shared by both the plaintiff and the defendant", to which the court charged that "if you find the plaintiff was negligent or contributorily negligent * * * then your verdict would have to be no cause of action to the plaintiff * * * the plaintiff had the burden to prove that he himself was free from contributory negligence".

Following these instructions the jury recommended deliberations. The plaintiff's counsel noted an exception to what he said "was a new charge" and "if they find the plaintiff contributorily negligent they would have to bring in a verdict for no cause for action." Thus the issue was raised and preserved for this appeal as to whether the trial court's instructions in response to the jury's question was reversible error insofar as it stated that a finding of contributory negligence would bar the plaintiff's recovery for a violation of section 241 (subd. 6) of the Labor Law.

We find such instruction was reversible error and we hold that contributory negligence is not a defense to a violation of section 241 (subd. 6) of the Labor Law as amended in 1969. Our conclusion is based on a consideration of the legislative amendments to that statute, as considered in Allen v. Cloutier Constr. Corp. (supra ). In Allen, the Court of Appeals imposed a "nondelegable duty" on owners and contractors, even though they exercised no control over the construction site. Consequently, the effect of contributory negligence was not mentioned. The court stated, however, that "the conclusion is inescapable that the change effected by 1969 legislation was a substantial one, for it 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 (cf. Rocha v. State of New York, 45 A.D.2d 633, (360 N.Y.S.2d 484,) mot. for lv. to app. den. 36 N.Y.2d 642 (366 N.Y.S.2d 1026, 325 N.E.2d 880))." (Allen v. Cloutier Constr. Corp., supra, 114 N.Y.2d p. 300, 405 N.Y.S.2d p. 634, 376 N.E.2d p. 1280, emphasis supplied.) If that was said by way of dictum, then the dictum is judicial in nature and not merely obiter, and meant, in our opinion, to express the legislative intent of the amendment, i. e., that the statute as amended imposed absolute liability. The use of such words cannot be construed as a judicial slip of the tongue or as synonymous with "nondelegable duty". The reasonable interpretation is that the Court of Appeals meant what it said in Allen, i. e., that the duty imposed by the 1969 amendment of section 241 (subd. 6) of the Labor Law (as well as subds. 1 through 5) is "absolute" as well as "nondelegable". This interpretation accords with the legislative history and purpose of the statute.

Prior to 1962, subdivisions 1 through 5 of that section imposed absolute first instance liability unrelated to questions of negligence to which contributory negligence was no defense. (Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 83 N.E.2d 133; cf. Vincent v. Riggi & Sons, 30 N.Y.2d 406, 334 N.Y.S.2d 380, 285 N.E.2d 689.) Subdivisions 6 and 7, which provided for the promulgation of administrative rules and regulations, were, if violated, merely some evidence of negligence (Conte v. Large Scale Development Corp., 10 N.Y.2d 20, 217 N.Y.S.2d 25, 176 N.E.2d 53; Utica Mut. Ins. Co. v. Mancini & Sons, 9 A.D.2d 116, 192 N.Y.S.2d 87), and as to these subdivisions contributory negligence would be a defense.

By the 1962 amendment, the Legislature substituted, in place of the seven subdivisions, one paragraph that set forth general duties as to work operations for owners general contractors and subcontractors in construction, excavation and demolition work to provide "reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places". This amendment was held not to impose absolute liability and a violation of such statute not negligence per se, so that contributory negligence was a defense to such statutory violation (Corbett v. Brown, 32 A.D.2d 27, 299 N.Y.S.2d 219).

In 1969 the statute was again amended by restoring subdivisions 1 through 5 as they generally were prior to 1962 and by adding subdivision 6 requiring owners and contractors to provide "reasonable and adequate protection and safety" to workmen covered by the statute. Subdivisions 7 and 8 permitting administrative rules and regulations were enacted in the same fashion and with the same effect as subdivisions 6 and 7 read prior to the 1962 amendment. It is the legislative addition of subdivision 6 in 1969 that has caused the difficulty. However, by linking subdivision 6 to subdivisions 1 through 5 (which admittedly impose absolute liability) and by making subdivision 6 co-equal with subdivisions 1 through 5, a legislative intent to impose absolute liability for a violation of subdivisions 1 through 6 may be judicially concluded. Although subdivision 6 requires owners and contractors to provide "reasonable and adequate protection and safety" to workmen covered by the statute, there is no reason to believe that the Legislature cannot make the liability imposed by such subdivision "absolute", if the Legislature desired to do so. That the Legislature so intended may be gleaned from the language of Allen (supra ), wherein the court stated (44 N.Y.2d 290, 300, 405 N.Y.S.2d 630, 634, 376 N.E.2d 1276, 1280): "Doubtless this duty is onerous; yet it is one the Legislature quite reasonably deemed necessary by reason of the exceptional dangers inherent in connection with constructing or demolishing buildings or doing any excavation in connection thereof". If the type of work to be done be...