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GRAVATT v. CITY OF NEW YORK
May 24, 1999
STEVEN GRAVATT AND DELORES GRAVATT, PLAINTIFFS
THE CITY OF NEW YORK, SIMPSON & BROWN, INC., N. MASSAND, P.E., L.S., P.C., A/K/A NANIK MASSAND, P.E., BARGE "ABC" AND BARGE DEF, THEIR ENGINES, BOILERS, TACKLE, ETC., IN REM, DEFENDANTS.
The opinion of the court was delivered by: Sweet, District Judge.
The Defendants have opposed the motion which will be granted for the
reasons set forth below. A revised opinion will be filed to reflect the
conclusions reached below.
Gravatt's injury on January 31, 1996, while employed as a dock worker
for S & B on a job for the City, engineered by Massand, gave rise to this
action, the complexity of which far exceeds the relatively simple facts
surrounding the injury to Gravatt's ankle. The proceedings prior to the
Opinion, which regrettably failed to resolve all the issues presented,
were set forth in the Opinion, pages 2-4, see Gravatt v. The City of New
York, 1999 WL 111922 (S.D.N.Y. March 3, 1999), and familiarity with that
Opinion and all prior decisions is presumed. See Gravatt v. The City of
New York, 1997 WL 419955 (S.D.N.Y. July 28, 1997); Gravatt v. The City of
New York, 1998 WL 171491 (S.D.N.Y. April 10, 1998); Gravatt v. The City
of New York, 1998 WL 341941 (S.D.N.Y. June 26, 1998); Gravatt v. The City
of New York, 17 F. Supp.2d 247 (S.D.N.Y. 1998); Gravatt v. General Star
Indemnity Co., 1998 WL 842351 (S.D.N.Y. December 2, 1998); Gravatt v.
General Star Indemnity Co., 1999 WL 212681 (S.D.N.Y. April 13, 1999).
The Opinion was rendered after a trial of over ten trial days during
which the testimony of nineteen witnesses was taken and hundreds of
exhibits were introduced.
The instant motion to amend certain of the findings of fact and
conclusions of law contained in the Opinion was heard and considered
fully submitted on April 21, 1999.
Contributory Negligence Cannot be Attributed to Gravatt
The facts found with respect to Gravatt's contributory negligence were
Gravatt contributed to his injuries. Although four
drafts had been successfully removed prior to the
accident, it was unsafe to use timber tongs to move
the old pilings. Gravatt as an experienced dock worker
knew or should have known that the work he was
performing with the timber tongs was being done in a
hazardous fashion. Further, Gravatt turned his back on
the lift as he moved the draft of new lumber. His
negligence was attributable to one-third of his
After stating the conclusion that the Gravatts were entitled to recover
against the City and Massand under §§ 200, 240 and 241 of the Labor
Law of the State of New York, and against S & B under § 905(b) of the
Longshoreman and Harbor Workers Compensation Act (the "LHWCA") and the
maritime law, the Opinion addressed the defense of contributory
negligence raised by the Defendants as follows:
As found above, Gravatt was contributorily
negligent. He was a journeyman dockbuilder i.e., a
qualified and experienced dockbuilder. Although he was
following instructions when he attempted to move the
pile using just timber tongs, he knew or should have
known that the use of timber tongs to lift the pile
was unsafe. See Fuszek v. Royal King Fisheries, Inc.,
98 F.3d 514 (9th Cir. 1996); Jackson v. Lloyd
Brasileirs Patrimonio Nacional, 324 F. Supp. 556, 563
(S.D.Tex. 1970); Simpson v. Royal Rotterdam Lloyd,
225 F. Supp. 947, 950 (S.D.N.Y. 1964).
Upon reexamination, the authorities cited require a different
conclusion for an employee such as Gravatt performing a task at the
specific direction of his employer.
A correct interpretation of the cases cited in the Opinion compels the
conclusion that an injured worker following the orders of his supervisor
is not contributorily negligent, and any award for damages should not
thereby be reduced as a consequence of his acts.
In Fuszek v. Royal King Fisheries, 98 F.3d 514 (9th Cir. 1996), the
plaintiff, a Jones Act seaman, was injured on board a fishing vessel while
operating a fish processing machine. The plaintiff reached into the
machine while it was operating (a dangerous practice implemented by his
employer) and seriously cut his hand. The Court reduced plaintiff's award
by twenty-five percent for contributory negligence. The Court of Appeals
in reversing held that the plaintiff's recovery should not be reduced
because the vessel owner maintained the vessel's equipment in violation
of safety regulations. Although Fuszek involved a seaman protected by the
Jones Act rather than a harbor worker protected by the LHWCA, it stands
for the principle that a worker is not liable for injuries caused by
following orders, as does Simpson v. Royal Rotterdam Lloyd,
225 F. Supp. 947 (S.D.N.Y. 1964). There the plaintiff was a longshoreman
who was injured on the defendant's vessel while unloading cargo in
Brooklyn. He fractured his ankle when a 100 pound tin ingot fell on his
foot during unloading operations. The Honorable Wilfred Feinberg, then a
District Judge, stated "There was no contributory negligence on the part
of the plaintiff. He was in the hold working pursuant to instructions."
225 F. Supp. at 950 (emphasis added).
In Jackson v. Lloyd Brasileirs Patrimonio Nacional, 324 F. Supp. 556
(S.D.Tex. 1970), the plaintiff longshoreman was injured when a
malfunctioning winch caused the plaintiff to be struck by a 55 gallon
drum. The Court found that the plaintiff, like Gravatt, was an
experienced worker, that the defendants, like the City, Massand and S &
B, knew about the defective practice, and that the plaintiff also knew
about the defect. The Court wrote:
In this case Jackson's continued performance of his
assigned task — knowing it to be a potentially
dangerous one — did not constitute contributory
negligence. He was ordered to assume the guide
position by his employer's supervisors. If Jackson had
refused to perform his assigned task, it is reasonable
for this Court to infer that his future employment as
a longshoreman in Galveston, Texas, would have been
jeopardized. As the accident occurred suddenly and
without warning, Jackson did all that he could under
the circumstances to protect himself from injury.
Here, a former shop steward, Matthew Quesada ("Quesada") had complained
about safety and believed that he lost his job because of his safety
complaints, and Gravatt believed that too. The contract between the City
and S & B specifically provided that an employee could be discharged for
disobedience. "[W]henever the Commissioner shall inform the Contractor,
in writing, that any employee is . . . disobedient, he shall be
discharged . . . forthwith, and shall not again be employed upon
it. . . ." Agreement, Chap. VIII, Art. 34, at 56.
In addition, Gravatt and Liming intended to move the old piles with
slings instead of tongs but used the tongs because of Holzheuer's order.
We find no error in Judge Weinstein's instructions,
much less "plain error." The instruction on
contributory negligence was clearly in accord with the
law of this circuit. Indeed, in Darlington v. National
Bulk Carriers Inc., 157 F.2d 817 (2d Cir, 1946), Judge
Frank, writing for a unanimous panel that included
Judges Swan and Learned Hand, reversed a defendant's
verdict, because the district court had refused to
give this substantially similar charge:
"The plaintiff was found to obey the orders of his
superiors on board the vessel. The chief officer was
the plaintiff's superior and plaintiff was bound to
obey the orders of the chief officer. Even though the
orders of the chief officer required him to work with
unsafe tools or under unsafe conditions, the plaintiff
was obliged to obey the orders and did not assume any
risk of obedience to orders."
Id. at 819. It cannot have been plain error for Judge
Weinstein to give an instruction that is so similar to
the instruction that the district court in Darlington
was reversed for failing to give.
Earl, 917 F.2d at 1324 (quotation marks added).
The previous conclusion reached in the Opinion was contrary to the
relevant authority, and no contributory negligence can be attributed to
Gravatt who was following a direct order causally linked to his injury.
Punitive Damages Are Recoverable Against S & B
The Gravatts seek amendment of the Opinion to permit a recovery of
punitive damages against S & B. In the Opinion it was concluded that the
acts of S & B were wanton and reckless and that it was more culpable than
Massand, which was held liable for punitive damage liability under New
York law (Opinion, page 425. The Opinion stated:
It seems anomalous under these facts that a remedy
under general maritime law cannot equal those granted
(or limited) by state statute. However, the LHWCA
creates a worker's compensation scheme for certain
maritime workers that is exclusive of other remedies
and does not provide for punitive damages. 33 U.S.C.
901-950; see also Miller v. American President Lines,
Ltd., 989 F.2d 1450, 1458 (6th Cir. 1993).
Accordingly, punitive damages are unavailable against
S & B.
Opinion at pages 425-426.
The issue of the availability of punitive damages has now been more
precisely illuminated by the parties. The issue is difficult and close,
and distinguished judges in this district have reached contrary results,
the Honorable Bernard Newman concluding that punitive damages are not
available in Cochran v. A/H Battery Associates, 909 F. Supp. 911, 920-23
(S.D.N.Y. 1995) (Judge Newman also concluded the proof did not support
the punitive damage claim), and the Honorable Jed B. Rakoff reaching the
same conclusion in O'Hara v. Celebrity Cruises, Inc., 979 F. Supp. 254
(S.D.N Y 1997), while the Honorable Allen G. Schwartz denied a motion to
strike a similar punitive damage claim in a maritime cause in Taylor v.
Costa Cruises, Inc., et al., 90 Civ. 2630(AGS), unreported opinion, filed
March 14, 1996, relying on his analysis of Yamaha Motor Corp., U.S.A. v.
Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578(1996).
Both the Gravatts and S & B agree on the legal issue, i.e., whether an
punitive damages is permissible under general maritime law in a case
involving non-fatal injuries to a harbor worker. S & B contended that
Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d
275(1990) and cases interpreting it, including Wahlstrom v. Kawasaki
Heavy Industries, Ltd., 4 F.3d 1084 (2d Cir. 1993), bar a punitive
damages recovery under the general maritime law, and in the Opinion it
was concluded that under the LHWCA the same conclusion should be
reached. However, the Opinion also concluded that Miles does not preclude
an award of punitive damages on all claims arising under the general
On closer examination, it is now concluded Miles v. Apex Marine Corp.,
498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275(1990), and Kawasaki,
4 F.3d 1084, do not compel acceptance of S & B's argument. Kawasaki
involved a wrongful death action of a pleasure boat operator, i.e., not a
traditional seaman or harbor worker. This Court concluded in the
Massand and S & B rely on the reasoning of the Supreme
Court's decision in Miles v. Apex Marine Corp.,
498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990),
and dicta in the Second Circuit's decision in
Wahlstrom v. Kawasaki Heavy Industries Ltd., 4 F.3d 1084
(2d Cir. 1993), for the proposition that punitive
damages are not available in cases brought under
general maritime law. While punitive damages against S
& B are not appropriate in the instance case, Massand
and S & B overstate the Supreme Court's holding in
In Miles, the Court held, inter alia, that damages
recoverable in an action for the wrongful death of a
seaman do not include loss of society. See Miles, 498
U.S. at 37, 111 S.Ct. 317. In reaching this
conclusion, the Court articulated principles of
uniformity relevant to wrongful death actions, and
more generally, to maritime tort law, which have moved
subsequent courts to limit recovery in other similar
contexts. See e.g., CEH, Inc. v. FV Seafarer, 148
F.R.D. 469, 472 (D.R.I. 1993) (collecting cases). The
Supreme Court's decision in Miles, however, does not
enunciate an absolute bar to recovery of punitive
damages in all general maritime cases. Indeed, Miles
does not signify a case for "universal uniformity of
maritime tort remedy," but rather "emphasizes the
importance of uniformity in the face of applicable
legislation." CEH, Inc. v. FV Seafarer, 70 F.3d at
700. The concern expressed in Miles was not with
respect to nonpecuniary damages in maritime cases in
general, but with inconsistency with statutory law;
"[i]n this era, an admiralty court should look
primarily to these legislative enactments for policy
guidance . . . [and] must be vigilant not to overstep
the well-considered boundaries imposed by federal
legislation." Miles, 498 U.S. at 27, 111 S.Ct. 317. As
the Supreme Court later held in Yamaha Motor Corp.
U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133
L.Ed.2d 578(1996), "[w]hen Congress has prescribed a
comprehensive tort recovery regime to be uniformly
applied, there is no cause for enlargement of the
damages statutorily provided." 516 U.S. at 215, 116
Opinion at pages 425-426.
The anomaly of allowing punitive damages against Massand and not
against S & B was recognized but it was concluded that the LHWCA, as a
worker's compensation scheme, compelled this result. However, the
legislative history of the LHWCA casts doubt on that conclusion. Congress
apparently anticipated that the 905(b) action would place the vessel owner
in the same position as a land-based third-party.
H.R. Rep. 92-1441, at 4703(1972), U.S.Code Cong. & Ad.News 1972.
It thus appears that Congress did not intend to create the anomalous
result reported in the Opinion. Indeed, in Miles, a seaman was murdered
aboard ship in state territorial waters. A claim for both survival and
wrongful death damages alleged negligence under the Jones Act and for
unseaworthiness under general maritime law.
The Supreme Court held that a nondependent parent cannot recover loss
of society damages and that the decedent's lost future income is not
recoverable to the estate. The Supreme Court ruled that the applicable
federal statutes, Death on the High Seas Act, 46 U.S.C. § 761 et
seq. ("DOHSA") and the Jones Act, 46 U.S.C.A. § 688, limit damages to
"pecuniary loss" in seamen's wrongful death and survival actions and,
thus, precluded the murdered seaman's mother from recovering
"non-pecuniary loss, such as loss of society," in a general maritime law
action. Miles, 498 U.S. at 20, 111 S.Ct. 317, quoting, Sea-Land
Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9
The Second Circuit in Kawasaki, where non-dependent parents of a
recreational boater sued for non-pecuniary damages held that
non-pecuniary loss of society damages were not available to non-dependent
parents under general maritime law. Turning to punitive damages, the
Second Circuit held that punitive damages, like loss of society, are
"non-pecuniary" and, therefore, are unrecoverable in a wrongful death
action based on general maritime law. The Court stated:
We are in general agreement with the view that
plaintiffs who are not allowed by general maritime law
to seek nonpecuniary damages for loss of society
should also be barred from seeking nonpecuniary
446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 Kawasaki, 4 F.3d at 1094.
The Gravatts contend that the corollary to this rule is that plaintiffs
who are entitled to seek non-pecuniary damages for loss of society should
be allowed to seek non-pecuniary punitive damages, citing American Export
Lines v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284(1980) where
it was held that non-pecuniary loss of society damages are available to
the spouse of a harbor worker injured in state territorial waters:
The question in this case is whether general maritime
law authorizes the wife of a harbor worker injured
nonfatally aboard a vessel in state territorial waters
to maintain an action for damages for the loss of her
husband's society. We conclude that general maritime
law does afford the wife such a cause of action.
Alvez, 446 U.S. at 275-76, 100 S.Ct. 1673.
In the interest of congruence between state and federal law under the
authorities cited above, and the requirements of justice under the
particular facts of this case driven by questions of coverage, the
conclusion stated in the Opinion must he amended to grant judgment
against S & B on behalf of Gravatt on his claim for punitive damages.
Having previously concluded Massand's liability to be $200,000 and S &
B to have more culpability than Massand (Opinion, pages 425-426), an
award of $400,000 in punitive damages against S & B is appropriate. As
set forth in the Findings of Fact in the Opinion, while Massand's
principal dereliction was its failure to comply with contractual and
statutory requirements and to provide inspection, particularly at the
time of the action (Opinion, pages 403-405, 407), S & B's reckless
conduct included not only the failure to meet the relevant safety
requirements, but the particular instruction to use an unsafe
procedure which resulted in the injury to Gravatt (Opinion, pages
The Conclusion with Respect to Pain and Suffering is Controlling
The Opinion at page 414 found that $200,000 would compensate for past
pain and suffering, and that $150,000 would compensate Gravatt for future
pain and suffering. It was concluded at pages 424-425 of the Opinion that
these amounts were respectively $300,000 and $200,000. The conclusions
are correct and the findings are an unhappy error resulting from the
The Conclusions and Findings with Respect to Pain and Suffering and
Household Services are Supported by the Evidence
Gravatt has moved to amend the conclusions with respect to pain and
suffering, setting forth for the first time a number of state court cases
in which plaintiffs with allegedly comparable injuries received greater
awards than set forth in the Opinion. Those differences are narrowed by
the arithmetical corrections set forth above. Massand has distinguished
Gravatt's cases on the facts and has noted the absence of any appellate
authority. S & B has set forth a number of cases with allegedly
comparable injuries and lower awards.
After consideration of these authorities and both Gravatt's injuries
and the condition of his ankle prior to January 31, 1996, the conclusions
set forth in the Opinion as to past and future pain and suffering are
supported by the record.*fn1
The Gravatts cite Mrs. Gravatt's testimony to support their claim of
household services lost as a consequence of Gravatt's injury. However,
his injury, though permanent, affects only the mobility of his ankle and
does not preclude performance of the tasks described by Mrs. Gravatt. In
addition, Gravatt testified to performing certain household duties and to
successful hunting trips on a number of occasions, an activity not
inconsistent with mowing the grass. The record, viewed as a whole,
supports the finding that there was no significant loss of household
The motion of the Gravatts to amend the Opinion is granted in part and
denied in part as set forth above. A revised opinion reflecting this
disposition is filed herewith.
Submit judgment on notice.
Plaintiffs Steven Gravatt ("Gravatt"), a journeyman dock worker and his
wife Delores Gravatt ("Mrs. Gravatt") (collectively the "Gravatts") have
sought damages from defendants The City of New York (the "City"), Simpson
& Brown, Inc. ("S & B"), the employer of Gravatt, and N. Massand, P.C.
("Massand"), an engineering firm, arising out of an injury Gravatt
received while working on the City's 145th Street Bridge (collectively,
the "Defendants"). The City has cross-claimed against S & B and Massand
and Massand has crossclaimed against S & B.
Upon the findings of fact and the conclusions of law set forth below,
judgment will be entered in favor of Gravatt and Mrs. Gravatt against the
City, Massand and S & B. Judgment will be entered in favor of the City on
its cross-claim for indemnity against S & B and Massand. Massand's
cross-claim against S & B will be dismissed.
Once again, the Court has been cast into "The Devil's Own Mess."[fn1*]
Indeed, to obtain a just result for the Gravatts it has become necessary
to deal with some of the most exasperating issues in tort law,
complicated by difficult legislation and precedent as will be apparent
from what follows.
This action was commenced on January 16, 1997 by a complaint which set
forth five causes of action: (1) liability of the City and Massand under
the Labor Law of New York and federal law; (2) common law negligence
against S & B and Massand; (3) a seaman's maritime claim based upon an
unseaworthy vessel against S & B; (4) a claim against S & B as owner of
the barges for negligence, defective maintenance and improper working
conditions; and (5) loss of consortium by Mrs. Gravatt. Answers were
filed and pretrial proceedings and discovery were had.
An opinion of April 6, 1998 (the "April 6 Opinion") resolved summary
judgment motions holding that the Gravatts were entitled to judgment
against the City and Massand under New York Labor Law §§ 200, 240(1),
and 241(6) with the issue of contributory negligence under §§ 200 and
241(6) reserved for trial, and that the Gravatts stated claims under
Section 905(b) of the Longshore and Harbor Worker's Compensation Act, 33
U.S.C.A. §§ 901-950 ("LHWCA"), and the Jones Act, 46 U.S.C.A. §
688, that the City is entitled to indemnity from Massand and S & B, that
Massand is not entitled to indemnity from S & B with Massand's
contribution claim against S & B reserved for trial. See Gravatt v. The
City of New York, 1998 WL 171491 (S.D.N.Y. April 10, 1998).
Thereafter, all of the defendants moved for reargument and two of them
(the City and S & B) also sought an order certifying the Opinion for an
interlocutory appeal pursuant to 28 U.S.C.A. § 1292(b). The opinion
of June 24, 1998 denied the motion for certification, denied Massand's
motion for indemnity against S & B, dismissed S & B's claims for
indemnity and contribution against Massand, denied the City's motion to
reconsider the application of the Labor Law to the action, granted S &
B's motion to dismiss the plaintiffs' Jones Act claim, and amended the
identity of the insurance company providing certain coverage to Massand.
See 1998 WL 341941 (S.D.N.Y. June 26, 1998).
Massand then made a second motion to reargue the Court's decision
regarding Massand's contribution claims against S & B. The opinion of
August 19, 1998 dismissed Massand's second motion to reargue as moot,
noting that Massand's indemnity claim against S & B had been dismissed,
not its contribution claim. See 17 F. Supp.2d 247 (S.D.N.Y. 1998).
Prior to trial, the parties consented to a bench trial which commenced
on November 30, 1998, and continued through December 4, 1998. The
Gravatts called seventeen witnesses. S & B called two expert witnesses
and the City called no witnesses. Final argument and submissions were
completed on February 3, 1999.
Gravatt is a New Jersey resident and a journeyman dock builder and
harbor worker who has worked for S & B since 1993. Gravatt has been
married to Mrs. Gravatt for over seventeen years. Gravatt suffered
severe, permanently disabling injuries while working at the 145th Street
Bridge in Manhattan on January 31, 1996. He was 37 years old at the time
of the accident.
The City of New York is a municipal corporation which maintains the New
York City Department of Transportation in which there is a division
formerly known as the Bureau of Bridges, now known as the Division of
S & B is a New Jersey construction company.
Massand is a New York engineering firm.
In late 1992, the Bridge Component Rehabilitation Section began a
project in Manhattan to replace the fender systems on the Third Avenue and
145th Street Bridges which span the Harlem River (the "Project").
The fender system is a structure that looks like a pier which is
attached to and surrounds the stone and mortar center stanchion of the
bridge and consists of heavy pilings and timbers, and smaller, horizontal
and diagonal pieces of lumber known as walers and braces for the purpose
of protecting the bridge from collisions with ships traveling in the
river. Its construction required the demolition and removal of the old,
existing fender and some excavation of the river bottom.
The two bridges which were the subject of the Project are owned by the
City and the Project was funded entirely by the City without state or
federal financial aid. It was completed in 1996.
The City hired two contractors to perform the Project: a consulting
engineer, Massand, to provide engineering, design, and other services;
and S & B to do the construction. The City entered into a written
contract with each defendant contractor. The contracts were awarded by
competitive bidding, and Massand and S & B were the low bidders on their
Compliance with state and federal safety statutes was a standard
practice of City construction projects. The contracts with Massand and S &
B contained numerous safety provisions.
The contract between the City and S & B was entered into on May 7,
1992. It contained the following provisions:
Labor Law Requirements. The successful bidder [Simpson
& Brown] will be required to comply strictly with all
Federal, State and local labor laws and regulations,
including but not limited to providing on-the-job
training opportunities and payment of prevailing
wages. Article 5. Compliance with Laws. The Contractor
must comply with all local, state and federal laws,
rules and regulations applicable to this contact and
to the work to be done hereunder, including, but not
limited to, the Federal Occupational Safety and Health
Act of 1970 ["OSHA"] the Construction Safety Act of
1969, as amended, and the following. . . .
Article 30. The Resident Engineer. The Resident
Engineer shall be the representative of the Engineer
at the site, and, subject to review by the Engineer,
shall have the power, in the first instance, to
inspect, supervise and control the performance of the
work. . . .
Article 36(b). That no part of the work, labor or
services shall be performed or rendered by the
Contractor in any plants, factories, buildings or
surroundings or under working conditions which are
unsanitary or hazardous or dangerous to the health and
safety of employees engaged in the performance of the
contract. Compliance with the safety, sanitary and
factory laws of the State in which the work is to be
performed shall be prima fade evidence of compliance
with this subsection.
That for any breach or violation of any of the
paragraphs on working conditions and minimum wages
above, the party responsible therefor shall be liable
to The City for liquidated damages . . . in addition,
the Commissioner shall have the right to cancel the
contract for any violation of this section and enter
into other public letting, charging any additional
cost to the original Contractor.
Any breach or violation of any of the foregoing shall
be deemed a breach or violation of a material
provision of this contract, and ground for
cancellation thereof by the City.
Paragraph 1.06.22. Contractor's Plant. The Engineer
shall have the right to reject or condemn any plant,
apparatus, staging or other appliance which, in his
opinion, is unsafe, improper or inadequate. Whether or
not the Engineer exercises this right, the Contractor
shall not be relieved from his sole responsibility for
the safe, proper and lawful construction, maintenance
and use of such plan, apparatus, staging or other
appliance or for the adequacy of such plant. . . .
Paragraph 1.06.23. Rules, Laws, and Requirements. (A)
The Contractor shall, at his own cost, obtain all
necessary permits, give all necessary notices, pay all
legal fees and comply with all Federal, State and City
Building and Sanitary Laws, ordinances and regulations
applicable to this contract and to the work to be done
hereunder. . . .
Superintendence. Prior to commencement of the
contract, the Contractor shall designate, in writing,
Superintendents responsible for the contract work. A
Superintendent must be on each job site continuously
and will not be changeable [chargeable] to this
contract and shall be considered as overhead. . . .
The contract between the City and Massand was entered into on August
26, 1992, and contained the following safety provisions.
(a) Paragraph 5. The Engineer [Massand] shall
ascertain the standard practices of the City prior
to the execution of any of the work required by this
Agreement. All work under this agreement shall be
performed in accordance with these standard
practices and the provisions of the contract
documents. The contract documents shall be deemed to
include this agreement, with accompanying schedule
or schedules, if any, the construction contracts,
and any supplements thereto, the standard Bureau of
Highway Operations specifications, the plans of the
project, any addenda to the plans, and project, and
all the provisions required by law to be inserted in
the Agreement and made a part hereof.
(b) Paragraph 6. The Engineer shall, upon written
notice to commence work, take full charge of the
Engineering Inspection of the project. The Engineer
shall thereafter initiate all necessary orders to
the Contractor(s), personally give field orders when
necessary. . . .
(d) Section I. General Requirements. (B) The Engineer
specifically agrees that: (a) his subcontractors,
agents or employees shall possess the experience,
knowledge, and character necessary to qualify them
individually for the particular duties they
perform; (b) he will comply with the provisions of
the Labor Law and all State Laws and Federal and
local statutes, ordinances and regulations that are
applicable to the performance of the
Agreement. . . .
(e) Section II. Resident Engineering
Inspection-General. (A) The Engineer shall be the
representative of the Department at the sites and,
subject to review by the Commissioner or his duly
authorized representative, shall have the power, in
the first instance, to inspect the performance of
the work. . . .
(f) Section II. Resident Engineering
Inspection-General. (B) The Engineer agrees that he
will endeavor to safeguard the City against deficits
and deficiencies in the work and that he will use
reasonable care and reasonable powers of observation
and detection in determining that the work conforms
to the Construction Contract documents.
(g) Section II. Resident Engineering
Inspection-General. (C) It is the responsibility of
the Construction Contractor(s), and not the
responsibility of the Engineer, to determine the
"Means and Methods of Construction", as defined in
Article 2, Paragraph 17 of the Agreement section of
the Standard Specifications of the Bureau of Highway
Operations, dated June, 1986, as currently amended.
However, if the Engineer reasonably believes that
the means and methods of construction proposed by
the Construction Contractor(s) will constitute or
create a hazard to the work, or to the persons or
property, or will not produce finished work in
accordance with the terms of the Construction
Contract, such means and methods must be reported to
the Commissioner, or to his duly authorized
(h) Section III. Resident Enqineerinq Inspection
Services to be Performed. (A) The Engineer shall
provide . . . basic resident engineering inspection
services for all items of work under the
Construction Contract. . . . These services are to
include monitoring of the Construction Contractor's
activities for conformance with the contract
documents, coordination with City Agencies and
public and private utilities, and monitoring the
condition of the contract site for conformance with
the contract documents, so as to provide a safe
environment for both workers and the general
public. . . .
(i) Section IV. Fees and Payments. (G) If the
Construction Contractor performs the work in such a
manner, or at such a number of simultaneous
locations, as to require the Engineer, under the
direction of the Commissioner, to provide additional
inspectors such that the total inspection manpower,
in person-days, shown on Table, will be exceeded,
then this condition will be considered a change in
the scope of this contract and a change order will
be issued, subject to the approval of the Director
of the Office of Management and Budget, increasing
the maximum fee. . . .
(j) Appendix A. 4.8 Compliance with Law. Contractor
shall render all services under this Agreement in
accordance with applicable provisions of federal,
state and local laws, rules and regulations as are
in effect at the time such services are rendered.
The City and Massand contract provides that Massand's duties
"specifically do not include the choice of construction labor,
materials, temporary structures, tools, plants and construction
equipment, or the method and time of their use." Massand Agreement,
Paragraph 2 at 1.
The Massand contract further provides that "it is the responsibility of
[S & B], and not the responsibility of the engineer, to determine the
`Means and Methods of Construction', as defined in [the S & B Contract]."
Massand Agreement, Section II(C) at SR-3.
Under the contract between the City and S & B, S & B was responsible
for the "means and methods of construction," defined in the S & B
contract as "the labor, materials in temporary structures, tools, plant
and construction equipment, and the manner and time of their use,
necessary to accomplish the result intended by this contract".
Agreement, Art. 2.18, at 31.
The contract between the City and S & B also provided that "the means
and methods of construction shall be such as [S & B] may choose;
subject, however, to the engineer's right to reject means and methods
proposed by the contractor which will constitute or create a hazard to the
work, or to persons or property . . ." Agreement, Art. 4, at 32, and that
"[t]he engineer's approval of [S & B's] means and methods of
construction, or his failure to exercise his right to reject such means
or methods, shall not relieve [S & B] of his obligation to accomplish the
result intended by the contract . . ." Agreement, Art. 4, at 31, and that
"[d]uring performance and up to the date of final acceptance, [S & B]
must take all reasonable precautions to protect the persons and property
of others from damage, loss, injury or death resulting from his or his
sub-contractor's operations under this contract, except such property as
the owners thereof may themselves be under legal duty to protect."
Agreement, Art. 7, at 34. The City and S & B's contract later confirms S
& B's safety duties under article 7 of the S & b contract, by providing
that "[t]he Contractor shall protect the work, persons and property in
accordance with the provisions of article 7 of the Agreement . . ."
Agreement, General Provisions, Section 1.06.28 at 110.
The City and S & B contract further provides that the "Engineer shall
have the right to reject or condemn any plant, apparatus, staging or
other appliance which, in his opinion, is unsafe, improper or
inadequate. Whether or not the engineer exercises this right, [S & B]
shall not be relieved from his sole responsibility for the safe, proper
and lawful construction, maintenance and use of such plant, apparatus,
staging or other appliance or for the adequacy of such plant."
Agreement, General Provisions, Section 1.06.22 at 104. The Massand
Contract further provides that Massand "shall be the representative of
[the City] at the sites and, subject to review by [the City] or [its]
duly authorized representative, shall have the power, in the first
instance, to inspect the performance of the work, as delineated in
article 30 [of the S & B Contract]". Massand Agreement, Section II(A) at
S & B was required to follow orders given by the City or Massand. The
resident engineer, who was employed by Massand, worked from an office
near the Third Avenue Bridge and was in charge of field activities. The
inspectors answered to the resident engineer. The resident engineer was a
licensed engineer, but the inspectors, like S & B's supervisory
personnel, were not licensed engineers and had no training in construction
The Massand inspectors were required to be at the job site whenever S &
B was working. The contract required Massand to provide "continuous"
services with a "staff commensurate with the level of construction
activity." Massand Agreement, Section I(A) at SR-1.
The City retained the right under the contracts to compel compliance
with safety regulations and its Project Engineer had the authority to,
and would, direct that safety problems be cured. On at least one
occasion, the City and Massand stopped work at the site and would not
allow S & B to resume work until safety violations were cured, as
demonstrated in the following entry in Massand's daily work log:
Contractor was instructed to clean & clear all
walk-ways & access to the barge & also to correct the
position of the ladder & remove all debris & other
construction material so as to give clear &
hazard-free access while moving within & around the
working area, Contractor was given permission to start
working after compliance of the above instructions.
In general, the City allowed Massand to have a single inspector at the
project at any given time, the exception being when there was considerable
construction activity, which was not the case on the day of Gravatt's
The City required both S & B and Massand to comply with the New York
State Labor Law, New York Industrial Code, and OSHA, but made no effort
to determine whether these companies knew anything about the state and
federal regulations regarding construction site safety. No one assigned
to this project by Massand or S & B had any knowledge of, ...