Opinion
Argued November 22, 1957
Decided February 28, 1958
Appeal from the Appellate Division of the Supreme Court in the first judicial department, THOMAS J. BRADY, J.
Harold M. Harkavy, James B. McLaughlin, Frederick M. Garfield and Robert A. Dwyer for appellants.
John Nielsen and John P. Smith for respondent.
One of the floors of a building under construction collapsed and injured the 13 plaintiffs who were employees of third-party defendant R.E. Carrick Company, the cement and concrete work subcontractor on the job. The injured workmen sued 981 Madison Avenue Corp., owner and general contractor, and City Construction Co., which was the owner's agent engaged not to do any of the construction work but to supervise the whole enterprise for the owner. Plaintiffs' theory of action against the owner and agent was that they had violated their statutory duty (Labor Law, § 200) to furnish subcontractor Carrick's men with a safe place to work. The owner and agent then impleaded subcontractor Carrick as third-party defendant, alleging that Carrick had been the primary wrongdoer.
At the trial the owner and agent admitted their liability to plaintiffs but were successful in obtaining from the trial court judgment over against subcontractor Carrick. The Appellate Division, however, struck down that judgment against Carrick, holding that no liability of owner-agent to plaintiffs had been established and that, accordingly, there was no basis for judgment over in favor of owner and agent against subcontractor. The "place" of this accident was, said the Appellate Division, part of Carrick's "work in progress" and "solely within the control of the third-party defendant". We agree. There is in this record no evidence of any failure by the owner and agent to furnish a safe place to work, within the meaning of section 200 and the common law on the subject of an owner's liability to the employees of an independent contractor engaged by the owner. The admission by the agent and owner of liability to plaintiffs did not bind the impleaded defendant Carrick and could not be decisive of the cross suit against Carrick.
Our sole inquiry, therefore, is as to whether plaintiffs proved that the owner and its agent failed to provide Carrick's men with a safe place to work. We find no such proof. The casualty occurred when some vertical wooden shoring shifted laterally and buckled, causing the collapse of the floor above, on which plaintiffs were pouring concrete. The uncontradicted testimony and the trial court finding was that all this had resulted from the negligent removal, a few days before, by some of subcontractor Carrick's employees, of a wooden form encasing a horizontal beam, against which form had been braced the horizontal shoring or planking which later buckled. All this was part of Carrick's subcontract, all persons involved were Carrick's employees and the planking, forms, etc., were parts of Carrick's equipment and plant on the job. The owner and agent are, therefore, immune from liability under settled rules. The leading case is Iacono v. Frank Frank Contr. Co. ( 259 N.Y. 377) which holds (p. 381) that the owner's obligation to furnish to a contractor's employees a safe place to work does not make the owner responsible to those employees for the sufficiency of the contractor's own plant, tools and methods. Citing Iacono ( supra), we said in Broderick v. Cauldwell-Wingate Co. ( 301 N.Y. 182, 187): "Nor is the general contractor obliged to protect employees of his subcontractors against the negligence of his employer or that of a fellow servant". In the well-known case of Wohlfron v. Brooklyn Edison Co. ( 238 App. Div. 463, 466, affd. 263 N.Y. 547) it is said that the obligation of the owner or general contractor to furnish a safe place to work "is clearly distinguishable from that arising through negligent acts of a subcontractor occurring as a detail of the work". Hess v. Bernheimer Schwartz Brewing Co. ( 219 N.Y. 415, 418) similarly makes it clear that the "place" which under section 200 of the Labor Law the owner (or general contractor) must make and keep safe does not include the subcontractor's own "plant" and equipment or the very work he is doing. The statute does not put on the owner (or general contractor) a fresh obligation to supervise, in the interest of employees of the subcontractor, the latter's operation of its own plan through its own employees.
The trial court made findings that the owner and agent had been causatively negligent in that the agent's supervisory personnel on the job had done nothing about the "discoverable condition upon reasonable inspection" which had caused the disaster. The Appellate Division on its analysis of the relationship of the parties and their respective duties thought it unnecessary to pass on the correctness of that irrelevant finding. We agree. Cases like Henry v. Hudson Manhattan R.R. Co. ( 201 N.Y. 140) are not in point since they enforced the liability of an owner to his own direct employees in the days before our Workmen's Compensation Law came into effect.
The judgment should be affirmed, with costs.
We dissent and vote to reverse. The issue before us relates to the liability of Carrick, the third-party defendant. The trial court found the third-party plaintiffs negligent, apart from their concession of liability, and that Carrick was the active and primary wrongdoer. The Appellate Division held "that the place where the plaintiffs worked and where the accident occurred was not a place within the scope or meaning of section 200 [Labor Law]"; hence the third-party plaintiffs could not recover over against Carrick.
We are not unmindful of the exceptions to the general rule that it is the duty of a general contractor of a building, under section 200 of the Labor Law and at common law, to provide his employees and those of his subcontractors with a safe place to work, and that the duty is nondelegable ( Wohlfron v. Brooklyn Edison Co., 238 App. Div. 463, affd. 263 N.Y. 547). Among these exceptions are situations: (1) where the structure is defective and the workmen are engaged for the specific purpose of correcting or repairing the defect, since no "responsibility rests upon an owner * * * to one hurt through a dangerous condition which he had undertaken to fix" ( Kowalsky v. Conreco Co., 264 N.Y. 125, 128); (2) "where the prosecution of the work itself makes the place and creates the danger", i.e., "when the very work in which the servant is engaged renders it unsafe" ( Mullins v. Genesee County Elec. Light, Power Gas Co., 202 N.Y. 275, 279); and (3) where the machinery and tools of a subcontractor are defective ( Iacono v. Frank Frank Contr. Co., 259 N.Y. 377 [a hod hoist]). The instant case does not fall within any of these exceptions. The plaintiffs were not employed to correct or repair a defect in this building in course of construction; the work of pouring concrete in which they were engaged did not create the danger; and here we are not dealing with machinery and tools.
The massive double-deck structure consisting of countless reinforcing steel rods which were to become a permanent part of the building, as well as the form work attached to and extending from the third to the fifth floor over the entire area of the proposed 40 by 60 foot auction room, had been completed and properly so. It created in effect a temporary fifth floor and had become a place to work, particularly for the 50 men (including 12 of the plaintiffs) who were later to pour concrete. The 13th plaintiff was on the completed third floor when injured. Five or six days before the accident, carpenters removed the support around the spandrel beam, thus creating a highly dangerous condition to the entire structure, of which the concrete men and other employees of other subcontractors, so far as appears, knew nothing.
Assuming the general contractor had notice of this highly dangerous condition, as found by the trial court (which finding the Appellate Division did not pass upon), can it be said that it had no duty whatever to see that the danger was eliminated in the face of the following facts: (a) The specifications provided that the subcontractor was not to pour the cement until the reinforcing steel and anchors were inspected, and was not to remove forms and shoring until the concrete was adequately set; (b) construction superintendent Orr's testimony that "I * * * was placed on the job to see that all contracts of subcontractors of the City Construction Company were carried out in accordance with the requirements of the plans and specifications, and such contracts as might be included in the specific contract. I also coordinated the activities on the job, between the architects, the structural engineers, various subcontractors, and the [tenant]"; (c) Orr's testimony that the general contractor did make a check on how long Carrick allowed forms to exist around the cement before their removal; it also checked "on when they started stripping"; it kept general records of the type of work that was performed in each location; and (d) inspections were made by the general contractor's president, its general superintendent, its construction superintendent Orr and his assistant, virtually daily?
This is not a machinery, tool or appliance case as in Iacono v. Frank Frank Contr. Co. ( 259 N.Y. 377, supra). Broderick v. Cauldwell-Wingate Co. ( 301 N.Y. 182, 187) is also clearly distinguishable, for there we pointed out that the "form-work was not intended as a place of work but, on the contrary, consisted of the work itself".
In the case before us, the accident did not occur during the progress of the work of erecting the massive double-deck structure that had been completed. The danger was created, not by reason of the work the 12 plaintiffs were doing in pouring concrete, but five or six days earlier by the removal of part of the structure's supports. The fact that this structure was originally created by plaintiffs' employer does not automatically insulate the general contractor against liability for accidents arising in connection therewith ( Thorsen v. Slattery Contr. Co., 272 App. Div. 931).
Despite the obligations of the general contractor under the plans and specifications as previously outlined, its duty to inspect, to check, to give approval and to exercise supervision and general control, and the highly dangerous condition of which the trial court found it had notice, under the prevailing opinion it is being absolved from all liability — apart from the concession — not only to the 12 plaintiffs whose place of work was the temporary fifth floor aforesaid, but the additional plaintiff who was injured while on the completed third floor. In our view, such a holding is unduly restrictive of the liability of owners and general contractors.
The judgment should be reversed, the third-party complaint reinstated, and the matter remitted to the Appellate Division to determine whether the third-party plaintiffs were chargeable with notice of the highly dangerous condition — a question of fact which it has not passed upon — and for such further proceedings as may be necessary, not inconsistent with this opinion.
Judges DYE, FULD, VAN VOORHIS and BURKE concur with Judge DESMOND; Judge FROESSEL dissents in an opinion in which Chief Judge CONWAY concurs.
Judgment affirmed.