Robinson v. Shapiro, 78 Civ. 2522.

• Decision Date: 23 January 1980
• Docket Number: No. 78 Civ. 2522.,78 Civ. 2522.
• Citation: 484 F. Supp. 91
• Parties: Rita ROBINSON, Individually and as Administratrix of the goods, chattels and credits that were of Joseph Robinson, deceased, Plaintiff, v. Rubin SHAPIRO, Harold Schneider, Irving Newman, Samuel Greenberg and Julius G. Fishman, doing business as Village Towers Company (a partnership), Defendants. Harold SCHNEIDER, doing business as Village Towers Company (a partnership), Third-Party Plaintiff, v. WASOFF CONTRACTORS, INC. and Modern Sheet Metal, Inc., Third-Party Defendants.
• Court: U.S. District Court — Southern District of New York

484 F. Supp. 91

Rita ROBINSON, Individually and as Administratrix of the goods, chattels and credits that were of Joseph Robinson, deceased, Plaintiff, v. Rubin SHAPIRO, Harold Schneider, Irving Newman, Samuel Greenberg and Julius G. Fishman, doing business as Village Towers Company (a partnership), Defendants.

Harold SCHNEIDER, doing business as Village Towers Company (a partnership), Third-Party Plaintiff, v. WASOFF CONTRACTORS, INC. and Modern Sheet Metal, Inc., Third-Party Defendants.

No. 78 Civ. 2522.

United States District Court, S. D. New York.

January 23, 1980.

Pazer & Epstein, P. C., New York City, for plaintiff.

Lewis I. Wolf, Weisman, Celler, Spett, Modlin & Wertheimer (of counsel), New York City, for defendants and third-party plaintiff.

Samuel Brill, New York City, Trial Counsel, Segan, Culhane, Nemerov & Geen, New York City, for Wasoff Contractors, Inc.

Burlingham, Underwood & Lord, New York City, for Modern Sheet Metal, Inc.

LASKER, District Judge.

On the night of January 8, 1978, high winds blew down portions of the smokestack at the apartment building at 15 Charles Street in Manhattan. The next morning a representative of the owner of the building, Village Towers Company ("Village Towers"), telephoned the contractor who had built the smokestack, Wasoff Contractors, Inc. ("Wasoff"), who in turn called the subcontractor who had actually put it up. The subcontractor, Modern Sheet Metal, Inc. ("Modern"), immediately sent a crew to 15 Charles Street to clean up the debris that had fallen onto the roof of the single story garage connected to the apartment building. The crew was under the supervision of Joseph Robinson.

To get to the top of the garage, the crew used a metal staircase that led from the sidewalk next to the driveway leading into the garage to a gap in the parapet around the roof of the garage. Leaning against the parapet, and blocking the gap at the top of the staircase, were several sections of iron fence, including a "gate" that was wedged into the gap and tied to the sections of fence behind it. As a consequence, the men in Modern's crew had to step up from the top of the staircase onto the parapet and walk along it to the end of the sections of fence leaning against it, where they could step down off the parapet onto the garage roof.

In the afternoon, the men finished their work and left the roof. Robinson was the last to leave, and as he was stepping down from the parapet to the top of the staircase, using the iron "gate" wedged into the gap in the parapet to support himself, the "gate" came loose, and Robinson fell down the staircase with the "gate" on top of him. He died several days later.

Robinson's wife brought this wrongful death action against Village Towers and Wasoff, and Village Towers impleaded Wasoff and Modern. At the close of the evidence, Village Towers' third party complaint against Wasoff and Modern was dismissed, but Ms. Robinson's claim against Wasoff was allowed to go to the jury. The jury returned a verdict against both defendants for damages of $1,180,000., representing $750,000. for loss of support and services, $400,000. for loss of consortium, and $30,000. for Robinson's pain and suffering. The jury found that Village Towers' negligence was 88% responsible for Robinson's death, and Wasoff's 12%. The jury expressly found that Robinson himself had not been negligent.

Village Towers moves pursuant to Rule 59 for a new trial, contending that the dismissal of its third party complaint was improper since "there was ample evidence of the culpability of both Wasoff and Modern contributing to the fatal accident," and because the court erred in two evidentiary rulings. In addition, Village Towers asserts that under New York law damages for loss of consortium cannot be recovered in a wrongful death action, and that in any event the jury's awards for lost support and loss of consortium were excessive. Finally, Village Towers argues that the jury charge was defective in several respects. Wasoff moves pursuant to Rule 50 for judgment notwithstanding the verdict, on the grounds that the evidence does not support the jury's finding that it was negligent.

Village Towers' motion is denied. Wasoff's is granted.

I.

Village Towers first contends that dismissal of its third party complaint against Wasoff and Modern was improper because "there was ample evidence of the culpability of both Wasoff and Modern." The evidence established that officers of Wasoff and Modern visited 15 Charles Street briefly on the day of the accident, and went onto the roof of the garage just as the men working there did. They apparently did not recognize the danger posed by the fence and "gate," and allowed the crew to continue working despite the impediment to ingress and egress from the work site. Bearing in mind that Village Towers bore the burden of proving negligence on the part of Wasoff and Modern, we adhere to our conclusion at the close of the evidence that no reasonable juror could find, on this evidence, that the failure of the officers of Wasoff and Modern to recognize that the existence and position of the fence might be dangerous constituted negligence on their parts.

For the same reasons, Wasoff's motion for judgment n. o. v. is granted, and the jury's verdict finding Wasoff 12% responsible for Robinson's death is set aside. As Wasoff argues in support of its motion for judgment n. o. v., the dismissal of Village Towers' third party action against it on the grounds that there was no evidence from which a reasonable juror could conclude that Wasoff was negligent was inconsistent with the decision to allow Ms. Robinson's claim against Wasoff to go to the jury. This procedure was adopted despite the court's conviction that the evidence against Wasoff could not sustain a finding of negligence, to obviate the need for a new trial on apportionment in the event the Court of Appeals disagreed.¹

It must be noted that judgment for Wasoff n. o. v. on the issue of negligence does not disturb the jury's finding that Wasoff was strictly liable to the plaintiff under sections 240 and 241.6 of New York's Labor Law. It does, however, affect the apportionment of liability under those provisions. In the event Village Towers could not satisfy the judgment in full, Wasoff would be obliged to make up the difference, despite our ruling to the effect that it was 0% negligent. However, Wasoff is liable under the Labor Law only if it was acting as a "general contractor" on the day of the accident, a question on which the court has to date reserved judgment. Since it is clear that Village Towers is adequately insured (to $2,000,000.),² it is not necessary to decide whether Wasoff was acting as "general contractor" on January 9, 1978, since even if it was, it would not have to satisfy any portion of the judgment.

II.

Village Towers contends that it was error not to submit to the jury the contract between Village Towers and Wasoff for the original construction of the smokestack, because "examination of the contract would have demonstrated that Wasoff was on the scene not out of idle curiosity but rather in order to meet its contractual obligations to the owners" under the warranty clause in the contract.³

Our conclusion that the evidence does not support a finding of negligence on Wasoff's part is unaffected by consideration of Wasoff's possible obligations under the warranty clause. Regardless of the motives that brought Wasoff's officer to 15 Charles Street on January 9th, the fact remains that the evidence adduced at trial will not support a conclusion that any act or omission attributable to Wasoff constituted negligence which contributed to Robinson's death. Accordingly, the question whether the contract should have been submitted to the jury is moot.

We note, however, that the rationale quoted above for allowing the jury to see the contract was never articulated at trial. Moreover, the case went to the jury on the theory that Wasoff was the general contractor hired to repair the smokestack.⁴ The knowledge that Wasoff was obliged to do so under an earlier contract would have added nothing material to the jury's deliberations.

III.

Village Towers next argues that it was prejudiced by the improper admission of the hearsay testimony of James Castro. The gist of Village Towers' argument is that since the challenged testimony would have been admissible under a proposed exception to the hearsay rule that was rejected by Congress, it was improper to admit it under the "catch-all" provisions of Rule 803(24) and Rule 804(b)(5). While we consider this argument unsound, it proceeds in any event from a mistaken premise.

Although Village Towers describes the rejected exception to the hearsay rule (Proposed Rule 804(b)(2)) as one that "would have allowed hearsay evidence of the declarant's contemporaneous sense perceptions to be introduced whenever the declarant was unavailable" (emphasis added), the proposed rule actually dealt with statements of "recent perception,"⁵ and must be distinguished from Rule 803(1), which deals with statements of "present sense impression." The latter rule, which was adopted by Congress, provides that "a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter," is not excluded, even when the declarant is available. Fed.R.Evid. 803(1). Even if Castro's testimony was not admissible under the "catch-all" exceptions to the hearsay rule, it was admissible under this provision.

Castro testified that Robinson, the decedent, told him that Village Towers' building superintendent, Rendo, had forbidden the crew to enter or leave the work site through his apartment, or to take down the fence. There is no "double hearsay" here because Rendo's statement was a "verbal act" — it was an "event" that established the "condition" under which the men were to work. Robinson's statement to...