Lopes v. Rostad

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: WACHTLER; BREITEL
• Citation: Lopes v. Rostad, 45 N.Y.2d 617, 412 N.Y.S.2d 127 (N.Y. 1978)
• Decision Date: 06 December 1978
• Parties: , 384 N.E.2d 673 Maria T. LOPES, as Administratrix of the Estate of Manuel D. Lopes, Deceased, Respondent, v. Harold R. ROSTAD et al., Respondents, and County of Nassau, Appellant, et al., Defendants. COUNTY OF NASSAU, Third-Party Plaintiff-Respondent, v. S. ZARA & SONS CONTRACTING CO., INC., Third-Party Defendant-Appellant. Vito MARTINO, Respondent, et al., Plaintiff, v. COUNTY OF NASSAU, Appellant, and Palma Rostad et al., Respondents. COUNTY OF NASSAU, Third-Party Plaintiff-Respondent, v. ZARA & SONS CONTRACTING CO., INC., Third-Party Defendant-Appellant.

Page 127

412 N.Y.S.2d 127

45 N.Y.2d 617, 384 N.E.2d 673

Maria T. LOPES, as Administratrix of the Estate of Manuel D.

Lopes, Deceased, Respondent, v. Harold R. ROSTAD et al., Respondents, and County of Nassau, Appellant, et al., Defendants.

COUNTY OF NASSAU, Third-Party Plaintiff-Respondent, v. S. ZARA & SONS CONTRACTING CO., INC., Third-Party

Defendant-Appellant.

Vito MARTINO, Respondent, et al., Plaintiff, v. COUNTY OF NASSAU, Appellant, and Palma Rostad et al., Respondents.

COUNTY OF NASSAU, Third-Party Plaintiff-Respondent, v. ZARA & SONS CONTRACTING CO., INC., Third-Party Defendant-Appellant.

Court of Appeals of New York.

Dec. 6, 1978.

E. Richard Rimmels, Jr., Mineola, for appellant.

David Rosenberg, Peter M. Pryor, Abraham I. Marglin, New York City and David J. Wiener, for third-party defendant-appellant.

Marshall D. Sweetbaum, Plainview and Bernard P. McSherry, Huntington, for Maria T. Lopes, respondent.

E. Richard Rimmels, Jr., Mineola, for third-party plaintiff-respondent.

OPINION OF THE COURT

WACHTLER, Judge.

S. Zara Contracting Co., Inc. (Zara), by contract with the County of Nassau (County) undertook a sanitary sewer construction project. On September 3, 1971 at 9:00 a. m., while repairing a manhole in connection with the project, Manuel Lopes and Vito Martino, both employees of Zara, were struck by an automobile driven by Harold Rostad and owned by his mother Palma Rostad. As a result of the accident Lopes died and Martino suffered personal injuries.

The accident occurred in the northbound lane of Babylon Turnpike, a two-lane county highway in the Village of Freeport. Just prior to the accident Harold Rostad had been driving in the southbound lane at approximately 30 mph. At that time the weather was clear, the road was dry, and nothing obstructed Rostad's vision, nor otherwise interfered with his driving. Except for a red flag attached to a tripod located about 50 feet south of the manhole in the northbound lane, no warning devices of any kind had been placed to alert on-coming traffic of the potential hazard of the construction zone.

It was the responsibility of Joseph Duffe, a civil engineer employed by the County, to supervise a team of County engineers who inspected Zara's work to assure that the project was progressing satisfactorily. There was no indication, however, that the County, through Duffe or otherwise, had taken any actions by which it assumed the responsibility of placing warning devices around the job site. To the contrary, the contract between the County and Zara stated that "(t)he Contractor shall provide to the satisfaction of the (County) Engineer and at his own expense, suitable barricades and warning signs for the protection of pedestrians and vehicular traffic" (Contract, art. 6).

Two separate actions, jointly tried before a jury, were brought against the Rostads and the County of Nassau, one for the wrongful death of Lopes and the other in negligence for the personal injuries sustained by Martino. The County, by way of a third-party action, sought common-law indemnification (see Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288) from Zara in both actions. Finding for the plaintiffs in each case the jury apportioned the damages 70% Against the Rostads and 30% Against the County. By stipulation of the parties, the court considered the County's indemnification claim and awarded judgment over against Zara on the theory of common-law indemnification for the entire contribution of the County to the plaintiffs' recoveries. The Appellate Division affirmed unanimously and we granted leave to appeal.

The plaintiffs' theory of liability against the County is that sections 102 and 139 of the Highway Law ¹ impose a nondelegable duty on the County to supervise construction work on County roads, and for liability for injuries sustained as a result of dangerous road conditions. The primary issue is whether the nondelegable duty of the County to maintain its roads in a safe condition, which concededly applies to the traveling public, extends to employees of an independent contractor who suffer injuries caused in part by the contractor's negligence while working on a County road construction project. We hold that the County's nondelegable duty does not apply in such a case.

It has long been established that a governmental body, be it the State, a county or a municipality, is under a nondelegable duty to maintain its roads and highways in a reasonably safe condition, and that liability will flow for injuries resulting from a breach of the duty (Neddo v. State of New York, 194 Misc. 379, 85 N.Y.S.2d 54, affd. 275 App.Div. 492, 90 N.Y.S.2d 650, affd. 300 N.Y. 533, 89 N.E.2d 253). Because the duty is nondelegable, even if the dangerous condition of the road, which caused the injury, is created by an independent contractor, the obligation imposed on the governmental body nevertheless remains fixed (Pettengill v. City of Yonkers, 116 N.Y. 558, 22 N.E. 1095).

The source of this duty is not only the common law, but also statute. Section 102 of the Highway Law provides: "The County superintendent * * * shall * * * 1. Have general charge and supervision of the work of constructing, improving, repairing and maintaining all county roads". The consequent liability of a county for breaching this duty is also prescribed by statute: "When, by law, a county has charge of the repair or maintenance of a road * * * the county shall be liable for injuries to person or property sustained in consequence of such road * * * being defective, out of repair (or) unsafe * * * because of the negligence of the county, its officers, agents or servants" (Highway Law, § 139).

Although the County concedes, as indeed it must, that it is subject to this statutory nondelegable duty, it argues that the legislative policy behind the statutes was to protect the traveling public exclusively. Since the injured parties in this case were employees of an independent contractor, and were injured through the contractor's negligence while working at the job site, the County urges that they were not part of the traveling public. Hence the County claims it owed them no duty to maintain the road in a safe condition.

To determine the proper scope and breadth to be accorded these statutes and the duty they impose, we must be guided primarily by the intent of the Legislature. "In many cases the evident policy of the legislature is to protect only a limited class of individuals. If so, the plaintiff must bring himself within the class in order to maintain an action based on the statute" (Prosser, Torts (4th ed.), § 36, p. 194; Chotapeq, Inc. v. Bullowa, 291 N.Y. 70, 74, 50 N.E.2d 548, 550; Dean v. Baumann, 39 A.D.2d 138, 332 N.Y.S.2d 665, affd. 32 N.Y.2d 756, 344 N.Y.S.2d 950, 298 N.E.2d 114). Only if the person seeking redress comes within the protective orbit of the statute, will his claim based upon a breach of a statutory duty be upheld (Van Gaasbeck v. Webatuck Cent. School Dist., 21 N.Y.2d 239, 244-245, 287 N.Y.S.2d 77, 81-82, 234 N.E.2d 243, 246-247; Beauchamp v. New York City...