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ANTHONY CORBETT v. CHARLES BROWN ET AL. (04/21/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT 1969.NY.41251 <http://www.versuslaw.com>; 299 N.Y.S.2d 219; 32 A.D.2d 27 April 21, 1969 ANTHONY CORBETT, RESPONDENT,v.CHARLES BROWN ET AL., DOING BUSINESS AS BROWN'S HOTEL AND COUNTRY CLUB, APPELLANTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS; ADLER & KRAF BUILDING CO., INC., THIRD-PARTY DEFENDANT-RESPONDENT AND FOURTH-PARTY PLAINTIFF-APPELLANT; IVAN STRAUSS ET AL., DOING BUSINESS AS S. & S. CONSTRUCTION CO., FOURTH-PARTY DEFENDANTS-RESPONDENTS Appeal by defendants and third-party plaintiffs from an amended judgment of the Supreme Court at Trial Term (William Deckelman, J.) entered February 19, 1968 in Sullivan County (1) upon a verdict in favor of plaintiff for damages; (2) upon a decision of said court dismissing the third-party complaint; and (3) upon an order of said court entered December 27, 1967 in Sullivan County which granted fourth-party defendants' motion to dismiss the fourth-party complaint. Appeal by third-party defendant and fourth-party plaintiff from said order. Gerald Orseck for defendants-appellants and third-party plaintiffs-appellants. Vandervoort, Cline & MacVean (Kenneth A. MacVean and Timothy B. Fisher of counsel), for third-party defendant-respondent and fourth-party plaintiff-appellant. Appelbaum & Eisenberg (Bertram W. Eisenberg of counsel), for respondent. E. Edan Spencer (Sidney Advocate of counsel), for fourth-party defendants-respondents. Staley, Jr., J. Gibson, P. J., Herlihy, Reynolds and Greenblott, JJ., concur. Author: Staley


Appeal by defendants and third-party plaintiffs from an amended judgment of the Supreme Court at Trial Term (William Deckelman, J.) entered February 19, 1968 in Sullivan County (1) upon a verdict in favor of plaintiff for damages; (2) upon a decision of said court dismissing the third-party complaint; and (3) upon an order of said court entered December 27, 1967 in Sullivan County which granted fourth-party defendants' motion to dismiss the fourth-party complaint. Appeal by third-party defendant and fourth-party plaintiff from said order.

Staley, Jr., J. Gibson, P. J., Herlihy, Reynolds and Greenblott, JJ., concur.

Author: Staley

 This is an appeal by defendants and third-party plaintiffs from an amended judgment of the Supreme Court at Trial Term entered February 19, 1968 in Sullivan County (1) upon a verdict in favor of plaintiff for damages; (2) upon a decision of said court dismissing the third-party complaint; and (3) upon an order of said court entered December 27, 1967 in Sullivan County which granted fourth-party defendants' motion to dismiss the fourth-party complaint. Appeal is taken by third-party defendant and fourth-party plaintiff from said order. The plaintiff Corbett was injured on January 22, 1964 when he was struck by a large piece of concrete which slid or slipped over the edge of an embankment and struck him while he was engaged in stripping forms from a retaining wall at a point between the retaining wall and the embankment. The retaining wall was being constructed on the property of the defendants Brown pursuant to a contract with the third-party defendant Adler & Kraf Building Co., Inc. by whom the plaintiff was employed. The fourth-party defendants Ivan Strauss and Nathan Shapiro, doing business as S. & S. Construction Co., provided the machinery and operators for the removal of a concrete curbing in the area where the retaining wall was being constructed. Although there is some conflicting evidence with regard to the slope of the embankment, there was testimony to the effect that the slope was not far from 90 degrees, and that the embankment was over 7 1/2 feet high at the point where the plaintiff was injured. The plaintiff contends that the defendants Brown were responsible for his injuries because of their failure to provide shoring or suitable barriers to protect the plaintiff from falling objects.

The complaint alleging general negligence on the part of the defendants Brown in addition alleged that the plaintiff's injuries were caused by the negligence of the defendants in failing to provide the plaintiff with a safe place to work in violation of the statutes of the State of New York and the Rules and Regulations of the Board of Standards and Appeals. The statutes and rules claimed to have been violated were specifically enumerated in plaintiff's bill of particulars.

The third-party complaint alleges two causes of action, the first based upon common-law indemnity, and the second based upon the indemnity clause in the construction contract between the parties. The fourth-party complaint alleges a cause of action based upon common-law indemnity.

The court, in addition to charging the general laws of negligence, also charged the provisions of section 241 of the Labor Law and the applicable rules of the Board of Standards and Appeals. The court also charged that contributory negligence was not a defense to a violation of section 241 of the Labor Law; that this section imposed a non-delegable duty upon the owner of the premises; and that contributory negligence would be a defense to a violation of the rules of the Board of Standards and Appeals.

Section 241 of the Labor Law, as amended by chapter 450 of the Laws of 1962, provides that: "All areas, buildings or structures in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted by the owners, contractors, and subcontractors as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The board may make rules to carry into effect the provisions of this section."

It is not disputed on this appeal that no shoring was provided to support the embankment, and that sufficient time elapsed prior to the accident in which to shore the embankment.

The appellants contend that the trial court erroneously charged the jury that contributory negligence was not a defense to a violation of section 241 of the Labor Law. Section 241, prior to its amendment in 1962, consisted of seven subdivisions, the first five of which contained specific positive commands to provide protection deemed appropriate in building or construction work by all contractors and owners when constructing or demolishing buildings, or doing any excavation in connection therewith. A violation of any of these five subdivisions was held to constitute negligence as a matter of law. Subdivisions 6 and 7 were the rule-making sections, and provided generally that the Board of Standards and Appeals may make rules for the protection of workmen doing excavation work in connection with the construction or demolishing of buildings or doing excavation work in connection therewith.

Section 241, as amended, has substituted in place of the prior seven subdivisions one paragraph which sets forth general duties specified as to work operations for owners, contractors and subcontractors in construction, excavation or demolition work to provide "reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places." The section leaves to the Board of Standards and Appeals the authority to make specific rules to carry into effect the statute.

Prior to the 1962 amendment, each of the first five subdivisions of section 241 imposed upon owners and contractors a duty for the benefit of a particular class or group, a violation of which constituted liability unrelated to questions of negligence. (Joyce v. Rumsey Realty Corp., 17 N.Y.2d 118; Major v. Waverly & Ogden, 7 N.Y.2d 332; Koenig v. Patrick Constr. Corp., 298 N. Y. 313; Utica Mut. Ins. Co. v. Mancini & Sons, 9 A.D.2d 116.) The statutory duty imposed upon both the owner and contractor was positive and non-delegable. (Semanchuck v. Fifth Ave. & 37th St. Corp., 290 N. Y. 412.) Therefore, under former section 241, contributory negligence was not available as a defense for a violation of subdivisions 1 through 5. (Koenig v. Patrick Constr. Corp., supra ; Utica Mut. Ins. Co. v. Mancini & Sons, supra.)

However, a violation of subdivisions 6 or 7 of section 241 of the Labor Law, prior to the 1962 amendment, did not establish negligence per se, since such subdivisions consisted solely of a delegation of power, and contained no substantive requirements or prohibitions. There is a clear demarcation between the legal effect of a violation of a rule promulgated under a statute, and a violation of a substantive provision of the statute. A violation of subdivisions 6 or 7 did not bar the assertion of the defense of contributory negligence of the plaintiff. (Conte v. Large Scale Development Corp., 10 N.Y.2d 20; De Milio v. New York State Thruway Auth., 15 A.D.2d 27; Utica Mut. Ins. Co. v. Mancini & Sons, supra.)

The provisions of the present section 241 are general in nature, and require only "reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places." The statute has broadened its area of coverage, and has also extended its coverage to members of the general public lawfully frequenting the areas protected by the statute. The section no longer resembles that type of statute designed solely to protect a particular group or class, or at least a single class, and does not contain the "unequivocal command of subdivision 1 of the former section" (Joyce v. Rumsey Realty Corp., supra., p. 122), or "a flat and unvarying duty" imposed by the statute as described in Koenig v. Patrick Constr. Corp. (supra, p. 318).

Although present section 241 does provide for the protection of a special class, namely employees, it does not do so exclusively, as it also provides for the protection of anyone lawfully frequenting the premises. Furthermore, it should be noted that section 241 does not contain the specific directions normally found in statutes imposing absolute liability and, therefore, it would appear that the intent of the general broad language contained therein is to the effect that a violation thereof alone and unrelated to rules promulgated thereunder would be the same as a violation of common law. Section 241 ...


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