Novell v. Carney Elec. Const. Corp.

• Decision Date: 10 April 1984
• Citation: 123 Misc.2d 1089,476 N.Y.S.2d 241
• Court: New York Supreme Court
• Parties: David NOVELL and Linda Novell, Plaintiffs, v. CARNEY ELECTRIC CONSTRUCTION CORP., James King & Son, Inc., Greenlee Tool Co., Ensley Tool Co., Inc., J.C. Penny Co., Inc., Mordall Realty Corp., and MRI Broadway Rental, Inc., Defendants. CARNEY ELECTRIC CONSTRUCTION CORP. and James King & Son, Inc., Third-Party Plaintiffs, v. CARNECO, INC., Third-Party Defendant.

Page 241

476 N.Y.S.2d 241

123 Misc.2d 1089

David NOVELL and Linda Novell, Plaintiffs, v. CARNEY ELECTRIC CONSTRUCTION CORP., James King & Son, Inc.,

Greenlee Tool Co., Ensley Tool Co., Inc., J.C.

Penny Co., Inc., Mordall Realty Corp.,

and MRI Broadway Rental, Inc.,

Defendants.

CARNEY ELECTRIC CONSTRUCTION CORP. and James King & Son, Inc., Third-Party Plaintiffs, v. CARNECO, INC., Third-Party Defendant.

Supreme Court, Trial Term New York County, Part 28.

April 10, 1984.

Schneider, Kleinick & Weitz, P.C. by Ivan Schneider, New York City, for plaintiffs David and Linda Novell.

Hogan, Jones & Parisi, P.C. by Thomas Moverman, New York City, for defendant Carney Elec. Const. Co.

IRA GAMMERMAN, Justice:

Is Section 240 subdivision (1) of the Labor Law applicable only in cases involving defective equipment? Is recovery under that Section limited to a case in which an injured worker falls from a height? What liability, if any, is imposed by that statute on a subcontractor? All of these questions are raised by this matter involving a construction site accident.

This is an action to recover for personal injuries sustained by plaintiff on June 3, 1977. On that date, at 1633 Broadway, New York, New York, plaintiff was seriously injured when his left leg was caught in a hoist rope. The building at 1633 Broadway was owned by MRI Broadway Rental, Inc., and had been constructed on ground owned by defendant Mordall Realty. A portion of the building had been leased to J.C. Penny, Inc. ("Penny") who had hired defendant James King & Son, Inc., ("King"), to rennovate a number of floors. King, as the general contractor, entered into a subcontract with Carney Electric Construction Corp. ("Carney") and Carneco, Inc., ("Carneco") for the performance of the electrical work. The latter corporation was plaintiffs' employer. At the time of his accident, the 31 year old plaintiff was working with a device known as a Greenlee cable-puller. Plaintiff also sued the manufacturer of the device, Ensley Tool Co., Inc. ("Ensley"), and its distributor Greenlee Tool Co. ("Greenlee") claiming that the device was inadequate for the work, was misadvertised and failed to have appropriate warnings. Cross-claims were asserted by all defendants and third-party actions were instituted against plaintiff's employer Carneco.

Subsequent to jury selection but prior to the commencement of the trial, the court sua sponte, and over the objection of all defendants except Mordall Realty and MRI Broadway Rental, Inc., severed the action against those defendants.

After several days of trial, the actions against King, Penny, Greenlee, Ensley and the third-party action against Carneco were settled. The action against Carney continued and the jury returned a verdict finding Carney liable under Section 240 subdivision (1) of the Labor Law. Apportioning liability among Carney, Greenlee, Ensley and Carneco, the jury found Carney 45% liable, and awarded David Novell $8,669,000, and plaintiff Linda Novell (his wife) $3,500,000. The jury also found that plaintiff David Novell was not an employee of defendant Carney in connection with an affirmative defense of Worker's Compensation asserted by that defendant.

Defendant Carney has raised several arguments on its motion to set the verdict aside. It maintains that Section 240(1) of the Labor Law is not applicable to this accident; that should the statute be applicable it does not impose liability on Carney, inasmuch as it is not an owner, a general contractor or an agent of either; and that the court erred in the manner in which the Worker's Compensation defense was submitted to the jury. Further, Carney argues, the court also erred in not permitting the jury to consider the potential liability (for apportionment purposes) of defendants King and Penny. Finally, Carney maintains that the jury award was excessive.

Factual Background:

A review of the factual background of the accident is necessary. At the time he was injured, plaintiff was working in an electrical closet located on the 23rd floor of the building. The dimensions of the closet were given variously as 7 feet by 8 feet to 10 feet by 15 feet, but an examination of the photographs of the area of the accident leads to the conclusion that the closet was approximately 6 feet by 8 feet. Plaintiff was one of two employees of Carneco charged with the job of hoisting electrical cables weighing approximately 1,000 pounds from the 11th floor through a vertical conduit or pipe to the closet on the 23rd floor. To accomplish this lift, a rope was dropped down the pipe and attached to the cables. A machine known as a cable-puller had previously been set up in the closet and it was plaintiff's assignment to pull the rope which had been wrapped around a capstan which was turned by an electric motor which, with the turns of the rope, was to provide sufficient mechanical assistance so that plaintiff could lift the one-half ton load. The puller was not equipped with any device or brake to prevent the rope from unwinding and slipping back down the pipe. Further, there was no hook or other device in the area behind plaintiff onto which the rope could be secured as the cable was being lifted. As a result, the rope was tied to pipes in front of plaintiff, leaving about 15 feet of slack rope in the area of plaintiff's legs. At the time of the accident, the lift was almost completed with the end of the rope closest to the electrical cable winding around the capstan. That end of the rope and cable had been treated with lubricant which caused the rope to slip. At that point or shortly thereafter, the load suddenly began to descend and the slack rope caught plaintiff about the left leg injuring him severely.

The testimony of the manufacturer of the Greenlee cable-puller was that it was designed for horizontal pulls and not vertical lifts. That information was not, however, contained in the literature issued by the defendant manufacturer or in the catalogs of the defendant distributor. Moreover, the machine was specifically advertised as a device for vertical pulls or lifting. Proof was offered that another type of cable-puller, a Powercrat, was owned by defendant Carney but not provided to Carneco for cable lifting although specifically requested. The Powercrat puller is equipped with a brake, and utilizes a cable and a drum thereby eliminating the need for an employee to pull on the rope or to tie off slack rope. Indeed, the Powercrat was received in evidence and the jury had an opportunity to observe the manner in which it functioned.

Applicability of Section 240, subdivision (1) of the Labor Law:

Section 240(1) of the Labor Law provides in its first paragraph:

"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

There can be little doubt that the cable-puller was a hoist within the meaning of the statute. In addition, it is not disputed that a rope was being used in the course of this work. Thus it was for the jury to determine whether or not the hoist and rope were so constructed, placed or operated as to give proper protection to plaintiff.

Defendant Carney argues that Section 240(1) does not apply because the accident was not caused by a defect in the hoist but, rather, because it was the wrong tool for the job or that it was operated in an unsafe manner. In this argument, defendant relies on La France v. Niagara Mohawk Power Corporation, 89 A.D.2d 757, 453 N.Y.S.2d 901 (Third Dept.1982). Indeed, in La France the majority held that Section 240(1) of the Labor Law was not applicable to an accident in which the boom of a crane fell on three workingmen who were dismantling it because, as the court stated, neither the crane itself nor any of its equipment was defective. In maintaining that Section 240(1) was inapplicable, the court noted that the pennant lines of the boom were "not so placed and operated to give the required protection to decedent."

It is the view of this court that the majority holding in La France is in direct contradiction to the language of the statute and is contrary to holdings of the Court of Appeals and the Appellate Division, First and Second Departments. The statute requires not merely that the equipment or devices be so "constructed ... as to give proper protection," but that the equipment or devices be "placed" and "operated" to afford that same protection. Thus the failure to provide the correct tool (although it itself was not defective) or to properly operate or place it, imposes liability under Section 240(1).

Alleged limitation to cases of falls from heights:

Defendant further argues that Section 240(1) applies only when the injured plaintiff falls from a height as the result of a statutory violation. This argument is based on two Fourth Department cases, Van Slyke v. Niagara Mohawk Power Corporation, 93 A.D.2d 990, 461 N.Y.S.2d 643 and DaBolt v. Bethlehem Steel Corporation, 92 A.D.2d 70, 459 N.Y.S.2d 503. Leaving aside the rather bizarre consequences that would flow from such a holding (i.e. a plaintiff who fell from a scaffold...