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Gjertsen v. Mawson Mawson, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Dec 28, 1987
135 A.D.2d 779 (N.Y. App. Div. 1987)

Opinion

December 28, 1987

Appeal from the Supreme Court, Kings County (Dowd, J.).


Ordered that the order is reversed, with one bill of costs, the motion is denied, the cross motion is granted, and the proposed amended answer of H. Sand Co., Inc. is deemed served.

The plaintiff, a dockworker, was injured at a construction site on the East River. His employer, the respondent George W. Rogers, Inc., paid him workers' compensation under the Federal Longshoremen's and Harbor Workers' Compensation Act ( 33 U.S.C. § 901 et seq.). The plaintiff commenced a suit to recover damages for personal injuries against, among others, the general contractor, H. Sand Co., Inc., and another subcontractor, Ingram Greene, Inc. The issue on appeal is the right of these parties to seek indemnification from the plaintiff's employer.

Although in maritime cases State courts have concurrent jurisdiction with Federal courts, under the "saving to suitors" clause of the Judiciary Act ( 28 U.S.C. § 1333), the State courts must apply Federal law (Garrett v Moore-McCormack Co., 317 U.S. 239, 245; Alvez v American Export Lines, 46 N.Y.2d 634, 639, affd 446 U.S. 274). Under Federal law, a cause of action for indemnity against an employer may be based upon either an express agreement or an implied warranty of workmanlike performance (Ryan Stevedoring Co. v Pan-Atlantic S.S. Corp., 350 U.S. 124, 133; Zapico v Bucyrus-Erie Co., 579 F.2d 714, 722). In the instant case, a direct contractual relationship exists between the appellant Ingram Greene, Inc., and the respondent George W. Rogers, Inc. Grounds may exist to find, if not an express agreement to indemnify, at least an implied contractual warranty of workmanlike performance. Therefore, the cross claim of Ingram Greene, Inc. survives this threshold test.

George W. Rogers, Inc., argues that to find that the appellants are entitled to indemnity, they must show that the plaintiff is alleging unseaworthiness, or a similar strict liability claim. Both parties expect that the plaintiff will attempt to prove liability under Labor Law § 241 (6). This section and the tort of unseaworthiness share many of the same attributes. In both the responsible party has a nondelegable duty to provide a reasonably safe place in which to work (compare, Zimmer v Chemung County Performing Arts, 65 N.Y.2d 513, 521-522, rearg denied 65 N.Y.2d 1054, with Mosley v Cia Mar. Adra, 362 F.2d 118, 120, cert denied 385 U.S. 933). In both the party is responsible to provide the equipment necessary to ensure the worker's safety, and in both the party may plead the worker's contributory negligence as a defense (compare, Socony-Vacuum Oil Co. v Smith, 305 U.S. 424, 431, with Long v Forest-Fehlhaber, 55 N.Y.2d 154, rearg denied 56 N.Y.2d 805). It appears from these similarities that the appellants' liability under Labor Law § 241 (6) is equivalent to that of a shipowner under the concept of unseaworthiness.

In addition, the facts in the instant case seem to bring Labor Law § 240 (1) into play. The plaintiff was injured while unloading steel plates at a construction site. His bill of particulars raises as an issue the adequacy of the means provided to unload the cargo of steel. Labor Law § 240 (1) specifically requires all contractors to provide proper equipment in such circumstances. Since Labor Law § 240 (1) imposes strict liability (Zimmer v Chemung County Performing Arts, supra, at 523), the liabilities of the parties under that section are the equivalent of those under the doctrine of unseaworthiness. Therefore, the appellant Ingram Greene, Inc. may maintain its cross claim against the respondent.

The appellant H. Sand Co., Inc. seeks to maintain a cross claim for indemnity against the respondent as an intended third-party beneficiary of the contract between Ingram Greene, Inc. and the respondent. H. Sand Co., Inc. is clearly an intended beneficiary of the contract at bar (see, Restatement [Second] of Contracts § 302; Zapico v Bucyrus-Erie Co., supra). Therefore, H. Sand Co., Inc. should be permitted to amend its answer and to maintain a cross claim for indemnification against the respondent George W. Rogers, Inc. Mangano, J.P., Bracken, Brown and Niehoff, JJ., concur.


Summaries of

Gjertsen v. Mawson Mawson, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Dec 28, 1987
135 A.D.2d 779 (N.Y. App. Div. 1987)
Case details for

Gjertsen v. Mawson Mawson, Inc.

Case Details

Full title:FINN GJERTSEN, Plaintiff, v. MAWSON MAWSON, INC., et al., Defendants and…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 28, 1987

Citations

135 A.D.2d 779 (N.Y. App. Div. 1987)

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