This action was brought to recover damages for personal injuries allegedly sustained as the result of defendant's negligence.
Plaintiff was employed by Lucien Cance, a subcontractor engaged to install cesspools at homes being constructed in Smithtown, N. Y., by defendant Belt Associates, an owner and builder acting as its own general contractor. The schedule of work established by defendant called for the foundation to be laid by another subcontractor prior to the installation of each cesspool by Cance. Part of the foundation consisted of two concrete slabs, called "cheeks", that extended out at right angles from the front of the foundation and were designed to support the front stoop of the house. Each cheek was 5 feet high and 8 inches wide and extended out 5 feet from the foundation wall. The cheeks were set parallel to each other 5 feet,
After the foundation and cheeks had been set and other work upon them such as waterproofing had been completed, they were backfilled so that the lower portions were buried in soil. About a month later, after work on the structure of the house had been done, Cance's men, including plaintiff, came onto the construction site to install the cesspool. The work plan called for Cance to locate the cesspool 15 feet from the front foundation wall and to connect it to a 4-inch drainpipe which projected 1 or 2 feet from under the footing of the front foundation wall about a foot to the left of the left cheek. To accomplish this, Cance had to dig a trench about 6 feet deep immediately adjacent and parallel to the outside face of the left cheek to where the drainpipe emerged from under the footing. The trench was excavated to the necessary depth by means of a crane, and thereafter plaintiff went into the trench with a hand shovel to finish uncovering the drainpipe. Since the soil was sandy and tended to slide into any excavation, the digging of the trench exposed the outside face of the left cheek. Consequently, the pressure of the backfill between the two cheeks, now that the counterbalancing pressure of the backfill on the other side had been removed, caused the cheek to break off the foundation wall and fall into the trench, injuring plaintiff. Four similar accidents, of which defendant was aware, had occurred previously during the installation of cesspools, although fortunately on those occasions no one was injured.
Plaintiff predicated defendant's liability on two theories: (1) that defendant failed to provide him with a safe place to work (Labor Law, § 200) by scheduling the backfill operation before instead of after the installation of the cesspool, thus causing the collapse when Cance removed the backfill from one side of the cheek; and (2) defendant failed to brace or support the cheek when the counterbalancing backfill was removed. In connection with the latter theory, the court charged the jury in the language of rule 23-8.1 of the Industrial Code (12 NYCRR 23.8) promulgated by the Board of Standards and Appeals pursuant to subdivision 6 of former section 241 of the Labor Law as follows: "Where there is any question of
The jury returned a verdict in favor of plaintiff, which the Appellate Division unanimously affirmed. We granted leave to appeal to consider the division of responsibility for safety precautions between subcontractors and general contractors, in light of the relevant statutes and previous pronouncements of this court.
The critical question to be determined here is who had the obligation to brace the cheek while the cesspool was being installed; all else follows from the answer to that question. If Cance had that responsibility, then clearly plaintiff's second theory of liability would be defeated, since defendant could not be chargeable with the omission of a duty it was under no obligation to perform. So, too, plaintiff's first theory of liability — that defendant failed to provide a safe place to work — could not be sustained. No evidence was introduced to show that the cheeks had been improperly constructed or that backfilling was other than good practice. Nor did the cheeks constitute a dangerous condition when Cance came onto the construction site — indeed, they were virtually immovable until Cance removed the backfill from one side.
Thus the case would fall within a well-recognized exception to defendant's general duty to provide a safe place to work — that is, where the injury arises through the negligent acts of a subcontractor occurring as a detail of the work (Zucchelli v. City Constr. Co., 4 N.Y.2d 52; Broderick v. Cauldwell-Wingate Co., 301 N.Y. 182; Wohlfron v. Brooklyn Edison Co., 238 App. Div. 463, affd. 263 N.Y. 547). And if Cance had the obligation to provide support for the cheek, defendant would not be required to alter its work schedule to protect Cance's employees from Cance's own defaults. No such secondary obligation devolves upon a general contractor even when aware of dangers caused by a subcontractor's plant, tools or methods (Gasper v. Ford Motor Co., 13 N.Y.2d 104; Broderick v. Cauldwell-Wingate Co., 301 N.Y. 182, supra).
Rule 23-8.1, above quoted, is pertinent here, but not, as the trial court charged, as authority for plaintiff. What is involved
It is apparent from the foregoing that the duty to brace or otherwise support the cheek during the course of Cance's work in progress rested on Cance. It accordingly was error for the court to submit the case to the jury on the theory that defendant could be liable for its failure to provide the necessary support.
Plaintiff argues that the trial court did not charge that defendant's liability could be based solely on the violation of rule 23-8.1 but merely allowed them to consider defendant's failure to brace the cheek on the issue of whether defendant failed to provide plaintiff with a safe place to work. We do not think that the charge may be read so restrictively, but the result reached here is the same on either view. As has been
In sum, then, it was Cance's responbility to support the cheek during the installation operation. His failure so to do created the condition by which plaintiff was injured. No negligence may be attributed to defendant as a result of Cance's default.
The judgment appealed from should be reversed and the complaint dismissed, with costs to appellant in all courts.
I vote to affirm. Appellant Belt's causative negligence was proven almost beyond dispute and there were no errors on the trial.
Belt was both the owner and general contractor and directed all the work as well as fixing the sequence in which the various operations were carried on. On several earlier occasions similar concrete cheeks at other houses under construction had collapsed under like circumstances because of lateral pressure resulting from the backfill. The owner, therefore, knew that the doing of the backfilling between the cheeks before the trench was dug out alongside the cheek would create an unsafe condition and an unsafe place for digging. Nevertheless, the owner did the backfilling in advance of the trench digging and did nothing to guard against the resulting danger. There is nothing in the record to indicate any necessity for, or common practice of, doing the backfilling first. The owner and general contractor was under a duty to prevent or protect against the unprotected excavating since the owner contractor not only had full notice of the peril but had itself caused it (see Dudar v. Milef Realty Corp., 258 N.Y. 415, 419).
This is not a case (like Zucchelli v. City Constr. Co., 4 N.Y.2d 52) where there was on the general contractor no duty to furnish a safe place for the particular work because the injury occurred through the subcontractor's own negligence in doing its own work. Here a prior, separate negligent act of the general contractor had made the area unsafe for the subcontractor's excavating operation.
As to the supposed error in charging rule 23-8.1 of the Industrial Code (12 NYCRR 23.8) to the jury, the record shows that the court never told the jury that there was such a rule. He certainly did not tell them that a violation thereof would create absolute liability (see Conte v. Large Scale Development Corp., 10 N.Y.2d 20, 29). In instructing the jury as to the general contractor's duty to use due care to furnish a safe place, the court's language was as follows:
On this record these instructions were fair and correct.
The judgment should be affirmed, with costs.
Judgment reversed, etc.