Posted On: March 31, 2012 by Stephen Bilkis

A man working as a widow-installer was on a jobsite at #67 Wall Street

A man working as a widow-installer was on a jobsite at #67 Wall Street on January 11, 2006. He carried some glass windows and rested them against a column while preparing to install them. As he turned, he stepped on a chunk of dark concrete which seemed to have fallen from the ceiling. The window installer stepped with the arch of his right foot on the jagged chunk of concrete. The chunk of concrete wobbled under his weight. The window-installer lost his balance and he fell. The chunk of concrete was part of an accumulated pile of debris on the jobsite floor that had not been cleaned up. The window installer’s crew had been working on that same building floor for about a month but the section of the building floor they were working on (on that day of his accident) was a different section of the building floor.

The jobsite was a building that was being renovated. It was owned by a corporation which hired a general contractor on December 1, 2004 to oversee the progress of the construction project in behalf of the owner of the building. The general contractor hired another corporation as a construction manager. This construction manager hired a window-making corporation as a contractor to manufacture for and install windows in the building. This corporation which makes windows hired a sub-contractor, a window-installing corporation to install the windows. The injured window-installer was an employee of the window-installing corporation.

The injured window installer filed a suit in damages under Labor Law and under common law negligence against the following: the owner of the building, the general contractor, the construction manager, the window maker, and his own employer, the window installing company. He claims damages from all of them.

The window installer was deposed, along with the supervisors of the general contractor, the construction manager, the window-maker and the window installing company. The general contractor and the construction manager were also deposed.

After the submission of the depositions, the owner of the building and the general contractor both filed motions for summary judgment alleging that they have no liability for the injuries of the window installer either under Labor Law or under common law negligence. The owner of the building and the general contractor moved for a summary judgment against the construction manager who had contracted to supervise the construction work for them. The construction manager also moved for a summary judgment against the window-making corporation as the window-making corporation had contracted with the construction manager to control and supervise the construction work and the clean-up of the jobsite. The window-making corporation asked for a summary judgment as against the actual employer of the injured window-installer who had control and supervision of the injured window-installer himself.

The plaintiff also filed a motion for summary judgment against the window maker and his own employer, the window-installing company as, according to him, none of them put up a defense against his claims.

The question of the propriety of all the motions for summary judgment is the only question brought on appeal before the Supreme Court.

Before the Court resolved the question of the summary judgment, the Court first had to determine if under any of the pleadings and the depositions, the questions on the nature of the injury and what had caused the injury can be determined before deciding on whether or not there are still any issues of fact that must be tried in order to determine who is liable to compensate the injured window-installer and how much he should be compensated.

First, the Court ruled that the window-installer sustained injury from a misstep and fall from concrete debris on the worksite. This much is clear and undisputed by the parties in their pleadings and depositions. The Court further ruled that the injury of the window-installer arising from a misstep and a fall is encompassed under the broad classification of injuries sustained from a trip and fall.

Second, the Court determined that the debris on the worksite floor was not debris that was being used in the on-going construction work but it was debris that was left after the construction work was over. It was trash and litter that had to be cleaned up so that the worksite will be safe for the employees working on that jobsite. The Court noted that under Labor Law, all employers are liable to maintain a worksite that is safe for its employers.
Third, the Court determined that the debris left over from construction work when it was allowed to accumulate all over the jobsite constituted a dangerous condition on the worksite.
Fourth, the Court determined that there are issues of fact that have to be tried:

1. The pleadings and the depositions had not yet answered the question of which trade or corporation did the job from which the debris came. There is a question of fact that has to be tried and heard because both the window-maker and the window-installing company say that the debris was not from a left-over of their work to install the windows but the debris had been lying there after the other crews on the jobsite had done work in the area. The question as to who actually left the construction debris there after they had finished working is an issue that has to be determined because the person or persons who left the debris may be found liable for negligence.

2. The question of who had the obligation under the several contracts to clean-up the jobsite also has to be tried. The construction manager, the window-maker and the window-installing corporation all have assumed contractual obligations to clean up the worksite and to maintain its cleanliness.

3. The question of who failed or breached the contractual duty to clean-up the jobsite also has to be tried.

4. The question of how long the accumulated debris had been piling up on the site is also a fact that has yet to be tried in order for the court to establish if the parties had constructive notice that the accumulating debris was already a dangerous condition.

5. The question of whether or not the parties who had the contractual obligation to clean the jobsite had constructive notice that the accumulated debris on the jobsite already posed a dangerous condition.

6. The question of who had authority to supervise and control the window-installer’s work also needs to be determined. The construction manager is not an agent of the owner and the general contractor. He may be found liable for negligence for failing to supervise the jobsite and the work of the injured window-installer but if he is found liable, whatever he is ordered to pay may be collected by him from any of the other defendants as he also has contracts with both the window-maker and the window-installing company for indemnification for any claims arising from injuries caused by negligence on the worksite. The same can be said for the window-maker as well as the window-installing corporation.

7. The question of how much the defendants are liable to pay the injured window-installer still needs to be tried. The Court found that the window-maker is not liable to pay the injured window-installer under Labor Law but may be found liable for negligence as he assumed the obligation to exercise supervision and control over the worksite and the work of the window-installer. It also assumed the obligation under its contract to maintain the cleanliness of the worksite. How much it is liable to pay in indemnification of the owner of the building and the general contractor will have to be determined during a trial.

The Court then ruled that because there are still issues of fact that have to be determined, the summary judgments asked for cannot all be granted.

The Court determined however that the owner of the building and the general contractor are free from any liability under Labor Law as they are not the employers of the injured window-installer. They are also free from paying for any liability that is proved to have resulted from negligence as both the construction manager and the window-making corporation had assumed the contractual obligation to indemnify any injured person as a result of negligence on the worksite. (In other words, while the owner of the building and general contractor may be found negligent after a trial, and while it may be ordered to pay, they can pass on the obligation to actually pay the injured window-installer to the construction manager or the window-maker who both signed contracts with the building owner and the general contractor to indemnify them for any cost they will be ordered to pay for injury arising from negligence.)
Thus the Court denied the motion for summary judgment brought by the window-maker against the window-installing corporation as the issue of liability between them still has to be tried. The motion for summary judgment brought by the construction manager against the window-maker and the window-installing company is also denied as the issue of liability between them will still have to be determined.

The building owner and the general contractor are granted their motion for summary judgment. The complaint of the injured window-installer against them under Labor Law is dismissed as they are not the employer of the injured window-installer. The claim of the injured window-installer against them under the common law negligence is not dismissed even if they are found to have contracted away their obligation to supervise the construction work, the obligation to hire and fire workers on the construction site, and the obligation to control the means and methods by which the construction work was done. Their liability for negligence, if any, cannot be delegated to another person or corporation. But in case they are found to have been negligent, they may claim indemnification from any of the other defendants who had contracted to indemnify them for any claim for injury caused by negligence.

Many of you are like the window-installer in this case. You sustained injuries while working at a construction site through the negligence of others. Confused as to whom to sue and who should be made to compensate you for the damages? Stephen Bilkis & Associates can help explain the law to you. Their experienced New York Trip and Fall lawyers can help you present the facts and see you through your case. A trained and competent New York Trip and Fall Attorney can argue for you and make sure that you are duly compensated.

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