Opinion
November 9, 1961
Judgment modified on the facts and on the law, only to the extent of reinstating the third-party complaints of defendants Julius Schulman and Julius Schulman Construction Corp. against third-party defendant Andrew Bedden and directing a new trial upon said third-party complaint, and otherwise affirmed, with costs to plaintiffs in the main action against defendants therein, costs to Julius Schulman Construction Corp. against defendant the Board of Education upon the dismissal of the latter's cross complaint, and with costs to abide the event of the new trial of the third-party complaint of defendants Schulman against third-party defendant Bedden. The third-party complaints were dismissed at the close of the presentation of the evidence on the entire case. It is true that defendants Schulman, as general contractors engaged to renovate certain rooms in a schoolhouse, owed a nondelegable duty to protect school children such as the infant plaintiff who were playing in the schoolyard while the work was being performed. Upon the evidence adduced, however, it cannot be held as a matter of law that they were guilty of such "primary" or "active" negligence as to defeat their right to indemnification against their independent subcontractor, Bedden, whose acts of negligence, in the absence of defendants Schulman, had immediately caused the infant plaintiff's injuries. The issue of whether defendants Schulman were guilty of such negligence should therefore have been submitted to the jury, and not resolved as a matter of law by the Trial Judge. It is appropriate to comment that while some members of the court deemed the verdict to be high, it is not so excessive as to shock the conscience and a reduction is not warranted.
Concur — Botein, P.J., Rabin and Steuer, JJ.; Breitel and Valente, JJ., dissent in part in the following memorandum by Breitel, J.: Because Schulman's liability to infant plaintiff is predicated on the alternative doctrine of inherently dangerous work, it was cast in liability not for specific negligence in the doing of the work but for failure to provide safeguards so that the dangerous work, whether otherwise done negligently or not, would not result in injury to those situated as the infant plaintiff (Prosser, Torts [2d ed.], p. 357 et seq.; 3 Restatement, Torts, § 413 as distinguished from §§ 416 and 427). In this respect Schulman's failure to notify the school principal of the commencement of work was a proximate and concurrent cause, in pari delicto, with the fault of Bedden (the subcontractor) and the Board of Education (the owner) in causing the accident. It was not shown that Bedden owed to Schulman any greater duty than to notify the "office" as instructed by Schulman. This duty he discharged by notifying the school building superintendent. He was never charged by Schulman or anyone with the duty to inform the school principal, or to provide barriers around the area of the boom fall, or to see that the children were excluded from the lower yard. Schulman, on the other hand, had just such duties under his agreement with the Board of Education. Hence, Schulman has no claim over, as a matter of law ( Crawford v. Blitman Constr. Corp., 1 A.D.2d 398; Restatement, Restitution, § 102, cf. § 95). Moreover, in the case as tried and charged to the jury, Bedden's negligence in the doing of the work was not the fulcrum of Schulman's liability, but Schulman's own breach of duty was (cf. Restatement, Restitution, § 96). Accordingly, I dissent in part and vote to affirm the judgment in all respects. Settle order on notice.