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Brezinski v. Olympia York Water Street Co.

Appellate Division of the Supreme Court of New York, First Department
Aug 31, 1995
218 A.D.2d 633 (N.Y. App. Div. 1995)

Summary

holding that there is no duty to warn a worker or his employer of dangers and conditions that are open and obvious, either pursuant to Labor Law § 200 or common-law negligence principles

Summary of this case from Rosa v. 47 E. 34th St. (NY), L.P.

Opinion

August 31, 1995

Appeal from the Supreme Court, New York County (Emily Jane Goodman, J.).


In September 1987, plaintiff sustained serious personal injuries when he fell from a catwalk located above the roof of a building then owned by appellant Olympia York Water Street Company (OY). Plaintiff was employed by respondent C D Waterproofing Corporation, a subcontractor engaged by respondent Horn Waterproofing Corporation and respondent Horn Maintenance Corporation, the general contractors. Plaintiff commenced this action seeking damages pursuant to Labor Law §§ 200, 240 and 241. Third-party actions were commenced against plaintiff's employer and another waterproofing concern. Cross claims for contribution and indemnification were asserted among those alleged by plaintiff to be responsible for his injuries.

At issue on this appeal is whether the proof adduced at trial is sufficient to support the jury's determination of fault as against appellant and, secondarily, whether certain of the court's instructions to the jury were erroneous. Trial was limited to the apportionment of liability, the parties having stipulated that the amount of plaintiff's damages would be $1.8 million. The jury found that OY, Horn Waterproofing Corporation and C D Waterproofing Corporation each had "supervision or control over the plaintiff's work or worksite at which plaintiff was injured" and that each was liable for negligence that proximately caused plaintiff's injuries. Liability was apportioned 15% against OY, 40% against Horn Waterproofing, and 45% against C D Waterproofing. The court denied a motion by appellant for judgment notwithstanding the verdict. Appellant contended, as it does here, that it cannot be held liable in negligence because the defect causing plaintiff's injuries was obvious and because appellant exercised no control over the worksite or the workers.

The record does not establish that appellant had any authority to direct the activity that resulted in injury to plaintiff. "Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200" ( Comes v. New York State Elec. Gas Corp., 82 N.Y.2d 876, 877; Curtis v. 37th St. Assocs., 198 A.D.2d 62). As this Court observed, "While control over the premises sufficient to give rise to such a duty may be attributed even to an owner who has no direct control over the activity bringing about the injury, at least where the owner is present and extensively involved with the work performed by a contractor * * * neither retention of inspection privileges nor a general power to supervise alone constitute control sufficient to impose liability" ( Pacheco v South Bronx Mental Health Council, 179 A.D.2d 550, 551, lv denied 80 N.Y.2d 754).

A landowner is under no duty to warn a worker or his employer of dangers and conditions that are open and obvious, either pursuant to Labor Law § 200 or common-law negligence principles that it codifies ( Wilhouski v. Canon U.S.A., 212 A.D.2d 525, 526, citing Gasper v. Ford Motor Co., 13 N.Y.2d 104; Bombard v. Central Hudson Gas Elec. Co., 205 A.D.2d 1018, lv dismissed 84 N.Y.2d 923; Manon v. Wallen, 201 A.D.2d 367). Plaintiff was injured when he fell from a catwalk equipped with no handrail or other safety device.

The trial evidence establishes only that OY was vicariously liable ( Guillory v. Nautilus Real Estate, 208 A.D.2d 336), and it is thus entitled to indemnification from respondents ( Kelly v Diesel Constr. Div., 35 N.Y.2d 1, 6). Using the jury's allocation of fault against respondents of 40% and 45%, respectively, Horn Waterproofing Corporation's additional liability is 40/85 x 15% or 7.059%, and C D Waterproofing Corporation's additional liability is 45/85 x 15% or 7.941%, making respondents' total share of liability 47.059% and 52.941%, respectively.

In view of this disposition, we do not reach the issue of asserted error in the court's instructions to the jury.

Concur — Sullivan, J.P., Rubin, Asch and Williams, JJ.


Summaries of

Brezinski v. Olympia York Water Street Co.

Appellate Division of the Supreme Court of New York, First Department
Aug 31, 1995
218 A.D.2d 633 (N.Y. App. Div. 1995)

holding that there is no duty to warn a worker or his employer of dangers and conditions that are open and obvious, either pursuant to Labor Law § 200 or common-law negligence principles

Summary of this case from Rosa v. 47 E. 34th St. (NY), L.P.

holding that there is no duty to warn a worker or his employer of dangers and conditions that are open and obvious, either pursuant to Labor Law § 200 or common-law negligence principles

Summary of this case from Rosa v. 47 E. 34th St. (NY), L.P.

In Brezinski, the plaintiff was injured when he fell from a catwalk with no handrails located above a building's roof (id. at 634).

Summary of this case from Walsh v. N.Y. Univ.
Case details for

Brezinski v. Olympia York Water Street Co.

Case Details

Full title:MICHAEL BREZINSKI, Plaintiff, v. OLYMPIA YORK WATER STREET COMPANY…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Aug 31, 1995

Citations

218 A.D.2d 633 (N.Y. App. Div. 1995)
631 N.Y.S.2d 23

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