Olsommer v. George W. Walker & Sons, Inc.

• Decision Date: 11 September 1957
• Citation: 166 N.Y.S.2d 323,4 A.D.2d 424
• Parties: Walter OLSOMMER, Plaintiff-Respondent, v. GEORGE W. WALKER & SONS, Inc., Defendant-Appellant. GEORGE W. WALKER & SONS, Inc., Third-Party Plaintiff-Appellant, v. MARTIN FIREPROOFING CO., Inc., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 323

166 N.Y.S.2d 323

4 A.D.2d 424

Walter OLSOMMER, Plaintiff-Respondent, v. GEORGE W. WALKER & SONS, Inc., Defendant-Appellant.

GEORGE W. WALKER & SONS, Inc., Third-Party Plaintiff-Appellant, v. MARTIN FIREPROOFING CO., Inc., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division, Fourth Department.

Argued May 14, 1957.

Decided Sept. 11, 1957.

Meagher, Eisenhart & Madigan, Binghamton (Donald G. Walls, Binghamton, of counsel), for plaintiff-respondent.

Dudley, Stowe & Sawyer, Buffalo (Roy P. Ohlin, Buffalo, of counsel), for defendant-appellant and third-party plaintiff-appellant.

Thomas P. McMahon, Buffalo, for third-party defendant-respondent.

Before McCURN, P. J., and KIMBALL, WILLIAMS, BASTOW, and GOLDMAN, JJ.

WILLIAMS, Justice.

This is an appeal from a judgment in favor of the plaintiff in an action to recover for personal injuries sustained in the course of construction of an office building. The defendant, George W. Walker & Sons, Inc., was the general contractor, and the third-party defendant Martin Fireproofing Co., Inc., of which plaintiff was an employee, was the subcontractor for the roofing work. The complaint alleged 'That the negligence of the defendant, George W. Walker & Son, Inc., consisted in negligently and carelessly maintaining the aforementioned means of access to and from the roof in a dangerous condition; in failing to provide a safe place for the plaintiff to work; in maintaining said roof in such unsafe condition that it constituted and was a nuisance; and in violation of Sections 200, 240 and 241 of the Labor Law of the State of New York.' Walker claimed over against Martin on common law principles. The trial court dismissed the third-party complaint and submitted the plaintiff's case against Walker to the jury solely on the basis of sections 240 and 241 of the Labor Law. Common law negligence and section 200 were not submitted. The jury returned a verdict in favor of plaintiff and Walker appeals from the judgment entered thereon and from the order dismissing the third-party complaint.

The building in question is a two-story brick structure. In the center of the roof is a flat, rectangular area, connected with the side walls by four areas which are trapezoidal in form. At the time of the accident, the steel superstructure had been completed, and the walls were up. The floors had not been poured, and the roof was not in place. A worker standing on the beams of the roof could look all the way down to the basement. Plaintiff testified: 'Q. Was there anything across the structural steel in the rest of the building? A. Well, no. There might be a board lay here or over there might be a piece of plywood or something like that, and there was a piece there and a piece here as you go along down through the floors. Just unfortunately where I fell, there were nothing and I went down through.' Plaintiff further testified that his superior was Martin's foreman, one Nyeholt. Defendant's superintendent gave plaintiff no instructions as to what to do.

Plaintiff described the construction of the roof as follows: 'T rails' or 'bulb rails' were spot welded to the steel framework of the roof, and that work was done by Martin. Sheetrock was then placed between the bulb rails to act as insulation. That was also Martin's task. Along one side of the building was a scaffold, which apparently had been used by the bricklayers. When directed by Nyeholt to go up on the roof, plaintiff climbed a ladder to the scaffold, which rose to within four feet of the top of the walls. There was also a ladder which extended through the interior of the building and rested against the steel superstructure of the roof. Plaintiff did not use that ladder. Finally, on the slanting part of the roof there was a ladder or 'crawl board' which rested on plywood. Plaintiff used that ladder to ascend to his place of work.

Plaintiff was assisting in pouring gypsum upon the flat surface of the roof by means of a hose, and Nyeholt was on the roof directing the Martin employees. Walker's superintendent 'was standing in the hole on the ladder which come up on the roof over approximately to the edge of the building. Q. Was he directing the work at all? A. No, he was just standing on the ladder. Q. He was overseeing it? A. That is right'--'he was just standing there watching us operate the gypsum'. It is obvious, from plaintiff's own testimony, that he took his instructions from Nyeholt and that defendant's superintendent exercised no control over his activities whatsoever.

In the course of the work, it began to rain, and Nyeholt directed plaintiff to 'Go down and take the hose down'--'before it sets'. Speed was important, else the gypsum would dry in the hose. Nyeholt did not instruct plaintiff to go down in any particular way, and plaintiff then made a choice which may not be considered unreasonable as a matter of law. The 'crawl board' had been removed by 'somebody', but there is no proof as to who moved it or when it was moved. The ladder which projected jected through the roof superstructure was occupied by Walker's superintendent. Plaintiff did not ask him to move because he was in a hurry to clean the hose. Instead plaintiff chose to descend along a slanted I beam, using the bulb rails as steps as he would a ladder. He was an experienced workman and had often descended in that fashion, but he admitted that it was not safe. His feet were secure, but a bulb rail broke loose from its welding and struck him on the head so forcibly that he lost consciousness, 'fell all through the building' and landed on the joists.

Nyeholt was called by plaintiff. He testified that 'The only conversation I had with any of Walker's employees was the superintendent * * * I introduced myself, and told him that I was Martin's foreman, and that I was going to put his roof on. Other than that, there was no conversation.' Martin supplied the material for the roofing work. The bulb rails, designed to support form boards, were spot welded to the beams. They were 'not a part of the structure' and were not designed to be used as a ladder. That would be dangerous, according to Nyeholt.

Walker's superintendent was called by plaintiff. He was asked: 'Did you observe the Martin men working? A. I did. Q. Did you go up to the roof and watch them work? A. Several times.' That is the extent of his assumption of control: He 'observed' them working. He simply 'watched' and 'inspected' the work, but had 'no control over them while they are doing it'.

Defendant called its project engineer, who testified that defendant owned the ladders and scaffolding and permitted Martin to use them but was under no contractual obligation to supply them. On cross-examination he was asked: 'And you employed other people? You employed and directed, in other words? A. We employed them, yes. We didn't actually direct their operations, no. Q. No, but you directed the building of this building? That was your general contractor's job; wasn't it? A. In the sense of generality, yes.' By that the witness obviously meant only that the general contractor had engaged the numerous subcontractors, and had co-ordinated their work and generally supervised the job, without controlling or directing the specific operations of any subcontractor or its employees.

The trial court submitted to the jury, over defendant's exception, the question whether section 240(1) of the Labor Law had been violated. That statute provides: 'A person employing or directing another to perform labor of any kind 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 or directed.' (Italics added.)

Defendants contends that it was not 'A person employing or directing' the plaintiff, and we agree that there is no evidence whatsoever that it was. 'The words 'employing or directing another to perform * * * painting' mean just that.' Kluttz v. Citron, 2 N.Y.2d 379, 383, 161 N.Y.S.2d 26, 29. Section 240 'has been construed by many decisions of the higher courts of this State to place the duty of furnishing these devices on the immediate employers of the labor, and this would mean the subcontractor when he is in charge of performance. It would not mean an owner or general contractor, unless such person was actually doing the work himself without the intervention of a subcontractor.' Komar v. Dun & Bradstreet Co., 284 App.Div. 538, 541, 132 N.Y.S.2d 618, 621. In Iacono v. Frank & Frank Contracting Co., 259 N.Y. 377, 382, 182 N.E. 23, 24, the court stated: 'Nor do we think that the Legislature, in using the phrase 'a person * * * directing another to perform labor,' had in mind an owner performing work through an independent contractor, or that it intended to impose liability upon such an owner for injuries arising from defective appliances supplied to his laborers by an independent contractor, as though the owner were a person 'directing' such laborers.' Our law is thoroughly settled on this point (Sweeney v. Spring Products Corp., 257 App.Div. 104, 12 N.Y.S.2d 72, affirmed 282 N.Y. 685, 26 N.E.2d 814; Gambella v. John A. Johnson & Sons, 285 App.Div. 580, 140 N.Y.S.2d 208; Glass v. Gens-Jarboe, Inc., 280 App.Div. 378, 113 N.Y.S.2d 595, affirmed 306 N.Y. 786, 118 N.E.2d 602; Manguso v. Thirty-Third Equities, Inc., 286 App.Div. 70, 142 N.Y.S.2d 25; Ellithorp v. Adams-Rice Construction Corp., 281 App.Div. 917, 119 N.Y.S.2d 776; Kaplan v. 48th Ave. Corp., 267 App.Div. 272, 273, 45 N.Y.S.2d 510; Anderson v. 143 Linden Blvd. Corp., 258 App.Div. 887, 16 N.Y.S.2d 149).

On the record it was error to charge section 240. Defendant clearly did not employ p...