Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

GRAVATT v. CITY OF NEW YORK

May 24, 1999

STEVEN GRAVATT AND DELORES GRAVATT, PLAINTIFFS
v.
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.

    OPINION

Plaintiffs Steven Gravatt ("Gravatt") and his wife Delores Gravatt ("Mrs. Gravatt") (collectively the "Gravatts") have moved under Rule 52(b), Fed.R.Civ.P., to amend the opinion filed in this action on March 3, 1999 (the "Opinion") directing judgment in favor of the Gravatts against 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 (collectively the "Defendants") and in favor of the City on its cross-claim for indemnity against S & B and Massand and dismissing Massand's cross-claim against S & B.

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.

Prior Proceedings

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 as follows:

    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
  injury.

The Opinion, page 413.

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).

The Opinion, page 424.

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.

324 F. Supp. at 563.

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 award of 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 maritime law.

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 Opinion:

  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
  Miles.
  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
  S.Ct. 619.

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.

  The purpose of the [1972] amendments [to the LHWCA] is
  to place an employee injured aboard a vessel in the
  same position he would be if he were injured in
  non-maritime employment ashore, insofar as bringing a
  third party damage action is concerned, and not to
  endow

  him with any special maritime theory of liability or
  cause of action under whatever judicial nomenclature
  it may be called, such as "unseaworthiness,"
  "nondelegable duty," or the like.

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 (1974).

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
  punitive damages.

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 399-402, 408-409).

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 drafting process.

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 services.

Conclusion

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.

It is so ordered.

OPINION

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.

The Issue

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.

Prior Proceedings

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.

On March 3, 1999, an opinion was filed containing findings of fact and conclusions of law based upon the bench trial (the "Opinion"). The Gravatts then moved under Rule 52(b) to amend the Opinion, which motion was granted by a companion opinion filed this date, setting forth the basis for the revisions contained in this revised opinion.

Findings of Fact

The Parties

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 Bridges.

S & B is a New Jersey construction company.

Massand is a New York engineering firm.

The Project

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 respective contracts.

The Contracts

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. Labor Law Requirements. The Contractor
  must strictly comply with all applicable provisions of
  the New York State Labor Law, as it may be

  amended and supplemented thereto, and the provisions
  of Section 343-9.0 of the New York City Administrative
  Code, as amended. . . .
  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. . . .
  (c) Section III. Resident Engineering Inspection
    Services to be Performed. (A) The Engineer shall
    provide continuous resident engineering inspection
    services, testing of materials

    services, design services, and shop drawing review
    services with a staff commensurate with the level of
    construction activity until completion and final
    acceptance of the Construction Contract work. . . .
  (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
    representative.
  (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 SR-3.

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 site safety.

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 accident.

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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.