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Lebrecht v. Bethlehem Steel Corp.

decided: October 29, 1968.


Smith, Kaufman and Hays, Circuit Judges.

Author: Smith

J. JOSEPH SMITH, Circuit Judge:

This is a diversity action for personal injuries suffered as a result of a construction accident at the 1964-65 World's Fair at Flushing Meadows, New York. The plaintiff, George Lebrecht, was installing Otis elevators in the unfinished observation tower of the New York State Pavilion when he stepped on an unsecured piece of corrugated steel decking called "slabform" and fell twenty feet to the level below. As a result of the accident, Lebrecht sustained severe spinal injuries, including multiple fractures of the spinal column and injury to the spinal cord, which will leave him partially paralyzed and probably unemployable for the rest of his life.

On trial to the jury in the United States District Court for the Eastern District of New York, Jacob Mishler, Judge, the jury found that the accident resulted from the negligence of the Bethlehem Steel Corporation, the steel subcontractor for the job, and returned a verdict in the amount of $590,000. Judgment was entered in that amount, and the defendant appeals. Specifically, Bethlehem urges (1) that the plaintiff was guilty of contributory negligence as a matter of law, (2) that there is insufficient evidence to support the verdict, (3) that the verdict is excessive, (4) that there were errors in the charge to the jury, and (5) that certain evidence was erroneously admitted. We find no error and affirm the judgment.

At the time of the accident, Lebrecht and his helper, Murray, were installing elevator guide rails at the fourth level of the unfinished observation tower. Construction was still going on at that level, and Bethlehem steel workers were putting down slabforms over the steel beam supports for the floor.

Slabforms are heavy-duty corrugated steel sections, and they are used as permanent forms for pouring concrete floors. According to the procedure described at trial, slabforms are installed by placing them end to end so that the ribs of the edge of one section overlap the corresponding ribs of those sections already secured. After the slabforms are set down, they are fastened into the supporting steel beams below by small self-tapping screws. When this is completed, the whole surface is covered with wire mesh and the concrete floor is poured.

Except for the immediate area where Lebrecht and his helper were working, practically all of the slabform work for the fourth level had been completed at the time of the accident. The Bethlehem workers could not install slabform sections in the unfinished area near Murray, however, because Murray was in the way. He was seated on a steel beam near the elevator shaft and was aligning guide rails. He was about 12 or 13 feet away, across the shaft from the plaintiff, who was also aligning guide rails on the opposite face of the elevator hatchway. While waiting for Murray to move out of the way, Bethlehem workers left an unsecured section of slabform in the area near him, placing it in such a manner that part of it overlapped a section which had already been installed and the remainder extended over open space without support.

Thirty to forty-five minutes after the slabform had been left this way, the plaintiff got up and started walking toward Murray. When he stepped on the loose section of slabform, he fell through the unfinished floor to the level below. The plaintiff testified at trial that he did not see the Bethlehem workers put down the unsecured piece of slabform, that he looked where he was going, and that the slabform appeared to be a "solid walking surface."

The main thrust of the defendant's argument is that the plaintiff was contributorily negligent as a matter of New York law.*fn1 The contributory negligence argument can be divided into two parts. First, Bethlehem says that the plaintiff was an experienced construction worker, that he was familiar with the process of installing slabforms, and therefore that he should have known "he was inviting inevitable danger as he approached the open space without making certain that the slabform which jutted out, with two of its sides exposed, was secured." If the plaintiff was aware of the existence at this place of an unsupported section of slabform and the danger of walking on it, or if he should have been aware of the existence of an unsupported section here and of the danger, then he would be contributorily negligent as a matter of law. See Whalen v. Citizens' Gas Light Co., 151 N.Y. 70, 45 N.E. 363 (1896); Storr v. New York Central Railroad Co., 261 N.Y. 348, 185 N.E. 407 (1933). Given the conflicting testimony as to the obviousness of the lack of support and hence the danger, however, the question of contributory negligence was properly submitted to the jury. Cf. Harner v. John McShain, Inc. of Maryland, 394 F.2d 480 (4th Cir. 1968).

In addition, Bethlehem insists that the unsupported slabform was dangerous only because it was put to an unanticipated use by someone "who had no business [walking] on the slabforms."*fn2

Since Bethlehem advertised that its slabforms provide "a solid, safe working platform for all trades" [Plaintiff's Exhibit # 1], we cannot say that the plaintiff was injured while using the slabform for an unintended purpose. Nor can we say that he was walking on a part of the structure where he did not belong. Under the circumstances, then, the question of contributory negligence was for the jury. Cf. Bill v. New York Expanding Metal Co., 60 App.Div. 470, 69 N.Y.S. 989 (2d Dept.1901); Rashkoff v. Erie Railroad Co., 141 App.Div. 624, 126 N.Y.S. 489 (1st Dept.1911), aff'd 206 N.Y. 744, 100 N.E. 1133 (1912).

Equally unconvincing is Bethlehem's claim that there was insufficient evidence to support a jury verdict in favor of the plaintiff. Only when there is no "evidence of substance" upon which reasonable men could reach the result represented by the verdict is the trial judge empowered to set aside the verdict and enter judgment n.o.v. for the moving party. Binder v. Commercial Travelers Mutual Accident Association, 165 F.2d 896 (2d Cir. 1947). It is hornbook law that when a motion is made to set aside the verdict, the trial court, as well as the appellate courts, must view the evidence in the light most favorable to the nonmoving party, and must give that party "the benefit of all inferences which the evidence fairly supports, even though contrary inferences might reasonably be drawn." Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S. Ct. 1404, 1409, 8 L. Ed. 2d 777 (1962).

We do not know whether the unsupported piece of slabform looked like a "solid walking surface," as the plaintiff contends, or whether it was an "obvious danger" to anyone who took the trouble to look, as the defendant argues. Nor do we know for certain how far the unsupported slabform extended into space. These would seem to be precisely the kinds of factual questions to be decided by a jury, and it would be a bit unreal for us to say that reasonable minds could not reach the verdict arrived at in this case.

Bethlehem does not dispute that its workers left the unsupported slabform in an area where other construction people were working, and that there were no signs, barriers, or anything else which might be taken as a warning that the slabform was not secured to the beams below. Nor does Bethlehem dispute the fact that there was nothing to distinguish this piece of unattached slabform from the other sections of decking already installed on the fourth level. In addition, the Behlehem foreman, Frank Pistillo, testified that it was customary for ...

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