Monroe v. City of New York
| Decision Date | 19 March 1979 |
| Citation | 67 A.D.2d 89,414 N.Y.S.2d 718 |
| Parties | Willie MONROE et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant Third-Party Plaintiff Respondent-Appellant, Armor Wrecking Corporation, Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Glaser & Blitz, P. C., New York City (Helen B. Stoller, New York City, of counsel), for plaintiffs-appellants.
George S. Pickwick, New York City (Joseph D. Ahearn, New York City, of counsel), for defendant third-party plaintiff respondent-appellant.
Peter M. Pryor, New York City (William F. Larkin, New York City, of counsel), for third-party defendant-respondent.
Before DAMIANI, J. P., and SUOZZI, SHAPIRO and COHALAN, JJ.
DAMIANI, Justice Presiding.
The plaintiff Willie Monroe (hereafter plaintiff), is a demolition worker who was injured when a fire escape upon which he was working fell from the side of the building to be demolished. The principal issue on this appeal is whether the owner of the building may be held liable for plaintiff's injuries upon the theory of common-law negligence or breach of duty imposed by rule, ordinance or statute.
Prior to the time of the accident, the defendant, the City of New York, had acquired title to premises at 115 Humboldt Street in Brooklyn by condemnation. The real property was improved by a five-story building which had originally been constructed as an apartment house. The building had 12-inch thick brick walls and had two sets of fire escapes, one in the front and one in the rear. In June, 1970 the city entered into a contract with Armor Wrecking Corporation to demolish this building and several others to make way for the erection of a new housing project. Armor's crew arrived at the site on August 24, 1970. At that time the building was vacant.
One of the first tasks undertaken on the following day was the removal of the fire escapes from the exterior of the structure. The steel fire escape on each floor in the rear of the building was about four feet wide and six feet long. Each platform of the escape was supported by at least two brackets which extended about four feet out from the rear of the building. Each bracket was embedded in the brick wall to a depth of about eight inches where it was secured to a bolt inside the wall. The four-foot high railings around the platform were affixed to the wall at their ends without providing the platform any added support. Neither did the ladders furnish any support to the platform.
The testimony established that there are many methods of taking down a fire escape. One method is to pull it down by attaching one end of a cable to the escape and the other end to a truck or payloader. Another method involves prying the platforms from the building by the use of "two-by-fours" and allowing them to fall to the ground. Yet a third method is to use an acetylene torch to cut the fire escapes from the building. This could be accomplished in two ways. The "burner" could lean out the window and cut the support brackets, causing the entire platform, railing and ladder to fall to the ground where it could be cut up for removal. Alternatively, the "burner" could get out on the escape, cut the railings and ladder free and then cut the platform brackets while leaning out the window.
Armor's foreman at the site simply directed plaintiff to remove the rear fire escape by "burning". Plaintiff, who was an experienced workman, chose the second method of burning which involved cutting the escape into pieces while it was still attached to the building. In order to use this method it was necessary to get out onto the escape. Plaintiff testified that before going out on any fire escape he tested it, using a procedure he was taught for safety purposes when he learned his job as a burner. He would sit on the window sill, holding on with his hands, place one foot outside the window and press down on the fire escape to see if it would bear weight without shaking. If the fire escape moved or shook, he would not go out on it; if it did not, he knew it was solid. He tested the lowest fire escape in this manner and then went out on it to begin cutting. First he cut off the vertical ladder, and then he cut the railing into sections and let them fall to the ground. He re-entered the building and then leaned out of the window and cut up the floor slats of the platform. Finally, he cut the support brackets at the building line. He followed the same procedure with the second platform. Before going up to the third platform, plaintiff had occasion to look up and observe its platform brackets from below. He could not see any rust on the brackets and they looked "all right" to him.
When he came to the third escape, plaintiff tested it to see if it moved. It did not. Since it thus appeared solid, plaintiff went out on the third escape to begin work and soon thereafter the entire platform separated from the building causing plaintiff to fall with it to the ground and sustain the injuries for which he sues.
Armor's foreman inspected the wreckage of the fire escape on the ground immediately after the accident. He found that four inches of the ends of the support brackets which were formerly embedded in the wall were rusted and covered with mortar. However, the remaining lengths of the brackets which were previously exposed to view were neither bent, cut nor rusted. In other words, the previously visible portions of the brackets appeared solid. The foreman then went to the floor on which the third escape had been located and, by leaning out the window, observed that bricks surrounding each bracket entry point had been pulled out of the wall. He inserted his hand into each of the holes and at a depth of four inches he felt the ends of the bracket and anchor which had remained in place after the remainder of the bracket had separated. When he removed his hand from these holes, it was covered with mortar and rust.
In answer to a hypothetical question based upon the foregoing facts, plaintiff's expert gave his opinion that the fire escape fell because the part of the brackets embedded in the wall had corroded and separated from the anchor which remained in the wall. Plaintiff also read part of the examination before trial of a demolition inspector employed by the City of New York who had visited the premises and who testified that he had not inspected the fire escapes for structural soundness or safety factors but had merely looked at them.
Plaintiff's complaint against the city sought recovery upon the theory of common-law negligence and negligence in the breach of a number of rules, ordinances and statutes relating to fire escapes and the safety of demolition workers. The city brought a third-party action against Armor seeking recovery on the theories of common-law and contractual indemnity. The trial court refused to instruct the jury on any of the proposed statutory theories and the case went to the jury solely on the issue of the city's liability for common-law negligence.
The jury returned a special verdict finding the defendant city guilty of negligence, finding the plaintiff free from contributory negligence and finding that the fire escape and supports "look(ed) all right" before the accident. Thereafter, the city moved to set aside the verdict. After a hearing, Trial Term granted the motion and dismissed the complaint and the third-party complaint asserted by the city against Armor, upon the ground that the city lacked notice of the dangerous condition which caused the accident and that the nature of the work placed plaintiff within certain exceptions to the common-law requirement that defendant provide him with a safe place to work.
In order to recover on the theory of common-law negligence, it was incumbent upon plaintiff to establish that defendant owed him a duty of care, the breach of which caused his injuries. The owner of premises is bound to use reasonable care commensurate with the hazard to be apprehended and to maintain his premises in such a condition that those who go there at his invitation shall not unnecessarily or unreasonably be exposed to danger (46 N.Y.Jur., Premises Liability, § 48). Where the owner invites workmen onto his premises he owes a duty to provide them with a safe place to work . The common-law duty to provide a safe place to work is now embodied in subdivision 1 of section 200 of the Labor Law. To be charged with negligence for breach of this duty, an owner must have notice, either actual or constructive, of the dangerous condition which caused the accident (41 N.Y.Jur., Negligence, § 9).
Plaintiff's proof conclusively established that the fire escape fell because the portions of the support brackets embedded in the building wall were weakened by corrosion. It also established that this condition was the sole cause of the collapse because none of the parts of the fire escape which plaintiff had previously removed bore any part of the weight of the section which fell and at that time Armor's demolition operations had not yet extended to the rear brick wall in which the brackets were anchored. Concededly, defendant did not have actual knowledge of the rusted condition of the portion of the brackets which were inside the wall. Plaintiff contends that defendant should be charged with constructive knowledge of that condition.
The duty of an owner to provide a safe place to work encompasses the duty to make reasonable inspections to detect dangerous conditions (Seigel v. Prima Concrete Constr. Corp., 27 A.D.2d 946, 947, 279 N.Y.S.2d 95, 97; Century Ind. Co. v. Arnold, 2 Cir., 153 F.2d 531, 534). At best, the city made only a cursory inspection of this fire escape. However, that fact does...
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