Walls v. Turner Construction Company

831 N.E.2d 408, 4 N.Y.3d 861, 798 N.Y.S.2d 351, 2005 N.Y. LEXIS 1091

• Court: New York Court of Appeals
• Decided: May 5, 2005
• Status: Published

Opinions

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Turner Construction Company entered into a contract with the Massapequa Union Free School District to serve as its construction manager for capital improvement projects at several schools, including McKenna Elementary School. There was no general contractor on this job. As part of its contract, Turner assumed responsibility for contractual, statutory, and regulatory compliance by all other trade contractors involved in the school district’s capital improvement project. If Turner became aware of any unsafe condition or practice at the work site that might constitute a hazard to users of the properties, it was contractually required to “immediately direct the Trade Contractors to cease work which constitutes such unsafe practice or hazardous condition.” In addition, Turner was to monitor performance by all trade contractors, enforce the terms of the trade contracts and take action within its reasonable control to minimize the loss of life and damage to property during emergencies. Turner was further required to periodically advise the owner and architect of safety issues and concerns.

As the Turner employee who was the superintendent of the McKenna site acknowledged in her deposition, “[i]f there was something that was improper that was being done on the job site, then we were able to stop it, yes.” She further admitted that Turner had the authority to control activities at the site and that her duties included being in charge of safety at the work site, as well as compiling logs, issuing monthly safety reports, surveying field work and the like. Indeed, Turner’s Safety, Health and Environmental Policy manual specifically provided that the project superintendent “[c]reate a ZERO TOLERANCE POLICY for project safety program violations.”

During the course of this improvement project, the school district also contracted with Jordan Construction Company for replacement of windows at the school. On August 21, 1999, plaintiff was working as a special employee of Jordan on the premises of the McKenna Elementary School within the oversight of Turner. During the window replacement project, plaintiff fell 12 to 14 feet while trying to construct scaffolding on a second floor window. No safety equipment had been supplied to plaintiff. Having suffered various injuries to his legs, ankle and back, plaintiff commenced this action against Jordan and Turner and was awarded summary judgment on his Labor Law § 240 (1) cause of action. In granting summary judgment, the trial court determined that based on these facts, Turner was a statutory agent of the school district for purposes of the Labor Law. The Appellate Division affirmed, one Justice dissenting, in part, and certified to us the question whether the order was correct.

Although a construction manager of a work site is generally not responsible for injuries under Labor Law § 240 (1), one may be vicariously liable as an agent of the property owner for injuries sustained under the statute in an instance where the manager had the ability to control the activity which brought about the injury (see Russin v Picciano & Son, 54 NY2d 311, 317-318 [1981]; see also Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 878 [1993]). “When the work giving rise to [the duty to conform to the requirements of section 240 (1)] has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory ‘agent’ of the owner or general contractor” (Russin, 54 NY2d at 318). Thus, unless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 293 [2003]).

Defendant, Turner, in this instance had such supervisory control and authority. Turner was not the “typical construction manager” as posited by the dissent (dissenting op at 866). On this job, Turner functioned as the eyes, ears, and voice of the owner. Turner’s broad responsibility was both that of coordinator and overall supervisor for all the work being performed on the job site. Turner was under a contractual obligation to monitor Jordan’s window replacement work and to protect Jordan’s employees. Accordingly, Turner also had the duty to make sure that workers on site were furnished with the proper safety gear. The dissent’s characterization of these contractual requirements as “a few benign safety-enhancing provisions” (dissenting op at 867) is untenable. Had Turner no such broad responsibility over plaintiffs work, Turner would not be statutorily liable..

The label of construction manager versus general contractor is not necessarily determinative. Thus, on the facts of this case, given (1) the specific contractual terms creating agency, (2) the absence of a general contractor, (3) Turner’s duty to oversee the construction site and the trade contractors, and (4) the Turner representative’s acknowledgment that Turner had authority to control activities at the work site and to stop any unsafe work practices, we agree that the Appellate Division was correct in holding Turner liable as a statutory agent of the school district under Labor Law § 240 (1).

Turner’s remaining argument that plaintiff was a recalcitrant worker is completely unsupported and without merit.