Johnson v. Artkraft Strauss Sign Corp.

45 A.D.2d 482, 359 N.Y.S.2d 773, 1974 N.Y. App. Div. LEXIS 3998

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 1974
• Status: Published

Opinions

Per Curiam.

Despite the objections of all the defendants, the trial court submitted this case to the jury for a special verdict, instead of a general verdict and, accordingly, gave the jury 11 questions which were to be answered.

The court announced, before summations, that it would give the jury a charge limited to general instructions on the subject of negligence and would reserve to itself the application of the Labor Law provisions and the final determination of liability, as the court deemed proper, on the basis of the answers which the jury would give to the specific questions given to them.

While we cannot perceive what was to be gained by adopting this procedure in this not unusual negligence case, nevertheless it was within the discretion of the trial court as to whether it would ask the jury for a general or special verdict. (CPLR 4111.) It is also true that, when a special verdict is requested, it often eliminates the need for complicated instructions to the jury. But, some instructions must be given in order to inform the jury as to what the issues are and what law is applicable, so as to enable the jury to answer intelligently the questions put to it. Subdivision (b) of the last cited section provides: “ The court shall give sufficient instruction to enable the jury to make its findings upon each issue.”

An examination of the charge in this case discloses that it was most general in nature, totally failed to advise the jury of the relations of the various parties in this litigation to each other, with particular reference to what legal consequences flowed from such relations. In other words, it failed completely to come to grips with the particular legal principles involved and the jurors were left in the dark as to what law applied in the case. The court failed to inform the jury as to what duty or standard of care was owed by the defendants to the plaintiff in order to lay a proper foundation for the jury to come to a conclusion as to whether or not there was actionable negligence.

“ Actionable negligence involves a duty owing to the injured party, a breach of such duty and injuries proximately resulting therefrom.” (Nieves v. Manhattan & Bronx Surface Tr. Operating Auth., 31 A D 2d 359, 360.)

' The language of the court in Green v. Downs (27 N Y 2d 205, 208) is particularly applicable to the charge of the court in the case at bar and it reads as follows: There was “ an almost complete lack of specificity in the over-all charge; and, in particular * # * [a] failure to discuss the evidence and to

relate it to the principles of law that were charged, and to apply to each party’s version the pertinent statutory and decisional law ”.

It is also noted that, on the facts disclosed in the record now before us, it was error for the jury to apportion damages between the general contractor, Stevens, and the subcontractor, Artkraft. While it is true that a general contractor is under a nondelegable duty to exercise reasonable care to safely maintain the common ways and approaches used by employees, when an independent contractor assumes the duty of performing an act which is dependent upon its personal care and attention, as did Artkraft in the case at bar, and an injury arises by reason of lack of such care and attention, such independent contractor is liable to the general contractor, if the latter is called upon to pay and does pay the damages arising from such negligence. (Scott v. Curtis, 195 N. Y. 424, 428.)

From the record before us it appears that Stevens subcontracted out the entire work and took no part in the operation. The evidence indicates that it was Artkraft’s employees who did the lashing, fastening and tying of the ladder so as to prevent it from moving in the manner in which it did. They did this knowing that such ladder was being used by plaintiff, and other persons working with him, as their sole means of access between the fourth and fifth floors. On such a record Stevens would be entitled to 100% indemnity since its liability is solely vicarious in nature, Artkraft being the active wrongdoer. (Leika v. Shau, 38 A D 2d 771; Rogers v. Dorchester Assocs., 32 N Y 2d 553) 565-566; and Kelly v. Diesel Constr. Div. of Carl A. Morse, Inc., 35 N Y 2d 1.) In the last-cited case at page 6 of the opinion, the court said: “ There is no good reason to continue the artificial policy involved in denying an owner or contractor, liable vicariously only under the applicable sections of the Labor Law, from obtaining indemnification under common-law principles, or, in a proper case, contribution under the doctrine in Dole v. Dow Chem. Co.”.

The judgment entered in favor of plaintiff should be reversed on the law and on the facts and a new trial ordered with respect to all issues of liability and damages raised by all of the parties hereto, with costs to abide the event.