Morris v. Pavarini Const.

• Citation: 9 N.Y.3d 47,874 N.E.2d 723
• Parties: Glenford MORRIS, Appellant, v. PAVARINI CONSTRUCTION et al., Respondents. (And a Third-Party Action.)
• Decision Date: 02 July 2007
• Court: New York Court of Appeals

874 N.E.2d 723

9 N.Y.3d 47

Glenford MORRIS, Appellant, v. PAVARINI CONSTRUCTION et al., Respondents. (And a Third-Party Action.)

Court of Appeals of New York.

July 2, 2007.

Sacks and Sacks, LLP, New York City (Scott N. Singer of counsel), for appellant.

London Fischer LLP, New York City (Daniel Zemann, Jr., Anthony D. Capasso and Daniel P. Mevorach of counsel), for respondents.

OPINION OF THE COURT

SMITH, J.

The issue is whether a Labor Department regulation requiring "forms" to be "braced or tied together so as to maintain position and shape" (12 NYCRR 23-2.2[a]) has been violated. We hold that the question cannot be answered on this record.

Facts and Procedural History

Plaintiff, a carpenter, was working on the construction of a new building in Manhattan when a large object, which he says was a "form," fell on and injured his hand. The record shows that the word "form" can refer to several different things, but for present purposes it is a kind of mold used in the fabrication of concrete walls. Such a form is made of two metal sides with a space between them, into which liquid concrete is poured; the form is removed after the concrete has hardened.

The only description in the record of the object that fell on plaintiff is from his deposition; the description is neither clear nor complete. The object was not a completed form, but was part or all of one of a form's sides. The side was constructed of metal plates, estimated by plaintiff to be two feet wide and four feet long, joined together in a way plaintiff's testimony does not explain. Plaintiff testified that the wall that was to be shaped using the form would be very large—"like 30 feet high and maybe the same amount in length"— and so presumably the side of the form was, or was to be, of at least that size.

Plaintiff sued the construction manager and the owner of the premises, claiming among other things that the object that fell on him was rendered unsafe by the violation of a Labor Department regulation governing concrete work and that defendants were therefore liable for his injuries under Labor Law § 241(6). Supreme Court dismissed his other claims, but denied defendants' motion for summary judgment dismissing the Labor Law § 241(6) claim. On defendants' appeal, the Appellate Division reversed and ordered the Labor Law § 241(6) claim dismissed. We granted leave to appeal, and now reverse the Appellate Division's order and remit the case to Supreme Court for further proceedings.

Discussion

Defendants did not direct or control the work that plaintiff was doing when he was injured. Thus, they can be liable to him only if Labor Law § 241(6) imposes on them a nondelegable duty, making them liable for the conduct of others. Labor Law § 241(6) says:

"All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."

This statute, we have explained, is, "in a sense, a hybrid" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 503, 601 N.Y.S.2d 49, 618 N.E.2d 82 [1993]). Its first sentence merely reiterates common-law standards of care, and thus cannot be a basis for civil liability by persons who are not themselves negligent the first sentence "cannot by itself be relied upon as the source of an owner's or general contractor's nondelegable duty" (id. at 504, 601 N.Y.S.2d 49, 618 N.E.2d 82). The second sentence, however, requiring owners and contractors to comply with rules of the Commissioner of Labor, does create a nondelegable duty—but only where the regulation in question contains a "specific, positive command[]" (Allen v. Cloutier Constr. Corp., 44 N.Y.2d 290, 297, 405 N.Y.S.2d 630, 376 N.E.2d 1276 [1978]), not where the regulation itself, using terms like "ade...