Major v. Waverly & Ogden, Inc.
| Decision Date | 21 January 1960 |
| Parties | , 165 N.E.2d 181 Pearl MAJOR, Appellants, v. WAVERLY AND OGDEN, INC., Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Morris Block, New Rochelle, for appellant.
William F. McNulty and Stanley D. Hicks, New York City, for respondent.
Plaintiff, while visiting at the apartment of friends in a two-story building owned by defendant, fell down a flight of stairs and sustained the injuries of which she complains in this action. She testified that she had been watching a picture on television and got up 'in a rush' to go to the bathroom. The living room was dark at the time except for the light from the television screen, and she went through the wrong opening, thus falling down a flight of stairs, which was not equipped with a light or handrail. The jury returned a verdict of no cause of action, and her complaint was accordingly dismissed.
The failure of defendant to provide a light and handrail for the staircase is said to be in violation of the State Building Construction Code (§§ A 105-5, A 205-6, A 205-7), promulgated by the State Building Code Commission under the provisions of section 374, article 18 of the Executive Law, Consol.Laws, c. 18. The Village of Mamaroneck, in which defendant's building is located, accepted the construction code in accordance with the provisions of section 374-a of the Executive Law, thereby making it applicable to defendant's premises (see McKinney's Consol.Laws of N.Y., Book 18, Executive Law, § 374-a, 1959 Supp., pp. 50-51). Plaintiff, therefore, contends on this appeal that the trial court erred when it charged the jury that this action was in 'negligence', and that in order for plaintiff to recover she must establish her freedon from contributory negligence. She claims that violation of the aforesaid code 'is conclusive evidence of negligence', and that 'contributory negligence' is not 'a bar to recovery'.
In support of her position, plaintiff relies upon our decision in Koenig v. Patrick Const. Corp., 298 N.Y. 313, 83 N.E.2d 133, 10 A.L.R.2d 848. There, defendant failed to provide a safety device in contravention of section 240 of the Labor Law, Consol.Laws, c. 31 for a ladder which the plaintiff workman was directed to use in the course of his work. We held that the resulting injury to the workman gave rise to a statutory liability, to which contributory negligence could not be asserted as a defense. We stressed that section 240 of the Labor Law, from which the statutory liability derived, provided that 'the employer or one directing the work 'shall furnish' or cause to be furnished equipment or devices 'which shall be so constructed, placed and operated as to give proper protection' to the one doing the work' (298 N.Y. at page 318, 83 N.E.2d at page 135). As a result of this forceful expression of the legislative mandate, we concluded that a 'flat and unvarying duty' was imposed upon employers, or those directing the particular work to be done (Ibid.). In other words, their violation of the statute was conclusive evidence of negligence, and constituted a statutory liability irrespective of an employee's contributory negligence.
By way of contrast, section 370 of the Executive Law, which sets forth the legislative 'findings and purposes', clearly shows that the primary purpose of the formulation of a building construction code was not to impose an unvarying duty for the protection of a particular class against a defined hazard, but rather to provide 'basic and uniform performance standards', thereby reducing excessive construction costs which the Legislature found threatened 'the health, safety, welfare, comfort and security of the people of the state'. Section 375 of the Executive Law prescribes standards for the code following closely the purposes described in section 370 (see particularly subds. 3 and 5 of § 375).
Thus it cannot reasonably be said that the statute Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 305, 200 N.E. 824, 829, 104 A.L.R. 450. (Emphasis supplied.) Or, in the language of the Koenig case (supra), a 'flat and unvarying duty' is not made 'crystal clear' by the language of the Executive Law (see 298 N.Y. at page 318, 83 N.E.2d at page 135).
Another aspect of our reasoning in the Koenig decision is also significant on this appeal. The Labor Law was designed to afford the workman protection against the unavoidable hazards of his occupation. The workman, we noted, 'usually ha(s) no choice but to work with the equipment at hand, though danger looms large' (298 N.Y. at pages 318-319, 83 N.E.2d at page 135). These elements of unavoidable hazards and lack of choice, and the occupational context of plying a livelihood, which figured so prominently in our decision in Koenig, are absent in the instant case. The sphere in which the Executive Law operates and the conditions which it purports to remedy cannot be so construed.
Were we to hold otherwise in this case, and fashion the liability for which plaintiff contends, we would be setting precedent for manifold statutory liabilities not only as to violations of the Executive Law but as to violations of countless other statutes as well, such as by way of illustration, the Vehicle and Traffic Law. There would be danger indeed that our common law of negligence would be substantially recast.
In addition to the foregoing, a second and equally important reason is here present which compels the denial of plaintiff's claim. Defendant is charged with having violated rules prescribed by the State Building Code Commission, adopted by the Village of Mamaroneck. It is well ...
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