Struble v. John Arborio, Inc.
| Decision Date | 10 April 1980 |
| Citation | 74 A.D.2d 55,426 N.Y.S.2d 592 |
| Parties | Lenard L. STRUBLE et al., Appellants, v. JOHN ARBORIO, INC., Respondent and Third-Party Plaintiff-Appellant; Brunalli Construction Company, Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
The plaintiff Lenard Struble was injured when a catwalk upon which he was standing while engaged in the dismantling of a piece of machinery (a crane) collapsed, propelling him to the ground. The crane was located at a site of highway construction (a bridge) and used in such construction.
Among other things, the plaintiffs urged that respondent John Arborio, Inc. (Arborio) was absolutely liable as a general contractor pursuant to subdivision 1 of section 240 of the Labor Law () for any failure to furnish a safe place to work. At the conclusion of the plaintiffs' evidence, Arborio moved for a dismissal of the complaint. Arborio contended that subdivision 1 of section 240 did not apply because the crane itself and the bridge were not structures to which section 240 would apply. Arborio further contended that even if it were subject to absolute liability pursuant to section 240, the plaintiffs had failed to establish that the catwalk was either a scaffold or a device used in the construction and to that extent there was failure of proof.
Subdivision 1 of section 240, chapter 1108 of the Laws of 1969, provides as follows:
1. All contractors and owners and their agents, 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 (Emphasis added.)
Trial Term granted the motion to dismiss without specifying upon what ground it was so deciding. Accordingly, if there is any cause of action proven upon the plaintiffs' case, the judgment must be reversed.
It is now established that pursuant to section 240 (subd. 1) general contractors and owners as well as their agents are severally liable for any failure to comply with the directives of the statute (Haimes v. New York Tel. Co., 46 N.Y.2d 132, 412 N.Y.S.2d 863, 385 N.E.2d 601). The duty is nondelegable and Arborio now concedes such responsibility.
Arborio contends that the particular catwalk could not be a scaffold within the meaning of section 240; however, "(w)hat constitutes a scaffold depends upon the facts and...
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