opinion filed this date, setting forth the basis for the revisions
contained in this revised opinion.
Findings of Fact
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. 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.