Timothy Walls, et al.,
Respondents,
v.
Turner Construction Company,
Appellant,
Jordan Construction Company,
Defendant.
2005 NY Int. 73
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
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
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 Louis N. Picciano & Son, 54 NY2d
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 4). 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 5) is untenable. Had Turner no
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.
Walls, et al. v Turner Construction Company, et al. No. 71 R. S. Smith, J. (dissenting):
I agree with the majority that "a construction manager of a work site is generally not responsible for injuries under Labor Law § 240 (1)." I think the decision in this case, however, fails to apply that rule correctly, and I therefore dissent.
Labor Law § 240 (1) requires "contractors and owners and their agents" to furnish proper protection against elevation- related risks to workers engaged in certain construction activities. This statute, as we have interpreted it, imposes civil liability that in some ways goes well beyond ordinary liability for negligence: the duty it imposes is non-delegable -- that is, even a contractor, owner or agent who did not supervise the work involved may be liable under the statute -- and if the statute has been violated, it is irrelevant whether the plaintiff's own negligence contributed to the resulting injury. The result, as judges in this state well know, has been an enormous quantity of Labor Law § 240 (1) litigation.
In one important way, however, our interpretation of
the statute has not been expansive: we have never given the
The principal difference between a general contractor and a construction manager is that the former has decision-making authority, while the latter's role is primarily advisory. A general contractor chooses the subcontractors, and is responsible for telling them what to do. Where an owner hires a construction manager, there often is no general contractor; the owner, relying on the construction manager's advice, itself retains and supervises a number of prime contractors, no one of which is in overall charge of the job. Since the owner normally follows the advice the construction manager gives, the line between authority and advice can become blurred, and it would be unsurprising to find that the word of a construction manager, when spoken on a job site, carries considerable weight with contractors and their employees. This could be the basis for an argument that construction managers are not materially different from general contractors and should have the same liability under Labor Law § 240 1).
But I believe -- and the majority seems, in principle,
to agree -- that we should reject this argument and should adhere
to our holding in Russin that only persons who have the
" authority to supervise and control" the relevant work are
statutory "agents." Where an owner retains for itself, and does
not delegate to a general contractor, the power to choose
contractors and supervise the job, it is the owner, not the
owner's advisors -- however well-heeded their advice might be --
Plaintiffs argue that, even if decision-making authority is essential to Labor Law § 240 (1) liability, Turner Construction Company should be held liable here because it "was functioning as a general contractor and/or general supervisor of the job, with over-arching and complete responsibility for site supervision and safety which it actually carried out." The majority is apparently persuaded by this argument. As I view the record, however, Turner was a typical construction manager, did not have the kind of authority that a general contractor has, and therefore should not be held liable.
A reading of the contract between Turner and the owner
of the construction site shows that it was the owner, not Turner,
that had decision-making authority. The most important
provisions give Turner the duty to "monitor the performance of
the Work," to "conduct walk-throughs at each work site" and to
"report any identified deficiencies" in the performance of
It is true that some phrases in the contract seem to confer more than advisory power on Turner in specific situations. The most relevant to this case is that Turner was empowered to "require compliance by the Trade Contractors with all applicable Federal, state and local statutes, rules, regulations and codes regarding safety"; but Turner was also required to "advise the Owner of any identified failure of the Trade Contractors in this regard." The majority also relies on language requiring that Turner "immediately direct the Trade Contractors to cease work" in the event of "any unsafe practice or condition at the work site which would constitute a hazard to school children or other users of facilities or properties in proximity to the work site." It is not clear that this provision is even relevant to practices that endangered construction workers, rather than school children and other civilians -- but in any event, a few benign safety- enhancing provisions in a contract should not be a basis for imposing Labor Law § 240 (1) liability on a company whose role was primarily advisory. Plaintiffs do not claim that Turner violated any of the contract's provisions relating to safety, but only that its authority to promote safety made it a statutory "agent." I find the argument unpersuasive.
Nor do I think the deposition testimony of Turner's on- site representative justifies imposing liability on Turner. The representative's description of her functions essentially tracked the contract language. Indeed, plaintiffs complain in their brief that this witness "attempted to limit Turner's responsibility through carefully tailored testimony." Plaintiffs nevertheless seize on a few bits of the deposition, including the statement the majority quotes that Turner could stop "something that was improper that was being done on the job site." This testimony need not be read as going any further than the contractual provision permitting Turner to stop work when the safety of "school children and other users" was endangered -- but if the witness mistakenly understood her authority to be broader than what the contract called for, that error should not expose Turner to Labor Law § 240 (1) liability. There is no evidence that Turner ever actually did stop work on the job; the question of when it theoretically could have done so should be determined by the contract, not a witness's description of it.
In sum, I see no material difference between Turner's role and the ordinary, advisory role of a construction manager. Thus I think the principle, correctly stated by the majority, that "a construction manager of a work site is generally not responsible for injuries under Labor Law § 240 (1)" should lead to dismissal of the complaint.
Accordingly, I would reverse the order of the Appellate