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New York Appellate Court Says Plaintiff Established Prima Facie Case for Negligence

RS testified to the effect that he is the owner/president of AC Const. Co. Inc. Collaborative Construction Company, a New York corporation founded in 1997 to build high-end residences of modern architectural design primarily on the eastern end of Long Island. AC Const. Co. Inc. entered into a contract or agreement with DL to erect a one-family house at 611 lazy Point Road, Amagansett and was the general Contractor for the project and hired subcontractors for the job site. Mr. DL did not retain any authority to hire the subcontractors and did not supervise any of the work that was done at the job site from when the job was started through July 22, 2005. SD was the foreman for AC Const. Co. Inc. at the site but was on vacation on the date of the accident. RS did not know who the foreman was who replaced SD on the date of the accident, but stated the substitute foreman could make a decision about injury or call and get a decision, but that anyone other than a laborer would be able to remove a cross bar of scaffold. He did not ask any of his employees whether or not they were requested to remove the scaffold. He held safety meetings or his employees, but the subcontractors held their own safety meetings. He did not go the site on a daily basis, out typically went about two to three times a week. LGP was the concrete subcontractor on the site. AC Const. Co. Inc. had laborers specifically assigned for the purpose of cleaning up and policing the job site. He thought pipe scaffolding had been set up for some trim work around the windows or for handrail work but he did not know if it was affixed to the ground. He had hired Forge and while Forge was on the site, AC Const. Co. Inc. did not direct or control any of the work that was being done by the Forge workers and did not discuss the means or authorize me method of digging the trench. Mr. SD was not responsible for the instructions of any of the workers from forge concerning the means and authorization to dig the trenches. He never directed or controlled the work of RM.

The first cause of action is premised upon the alleged negligence of the defendants in causing injury to the plaintiff. In New York, to establish a prima facie case of negligence, a plaintiff must prove (1) that the defendant owed a duty to plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. If, defendant’s negligence were a substantial factor, it is considered to be a proximate cause even though other substantial factors may also have contributed to plaintiffs injury. In order to establish the third element, proximate cause, the plaintiff must show that defendant’s negligence was a substantial factor in bringing about the injury. Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party

It is determined that the defendant AC Const. Co. Inc., as the general contractor, had a duty to maintain a safe working environment at the work site. AC Const. Co. Inc. has not demonstrated prima facie entitlement to dismissal of the cause of action premised upon negligence in that there are factual issues concerning whether it breached that duty and was negligent in supervising the work site and in not providing someone with authority at the site to move the scaffolding when asked by the plaintiff to enable him to dig the trench on the date of the construction accident. There is further factual issue concerning whether AC Const. Co. Inc. was negligent in permitting the unused concrete debris to remain at the construction site, and whether such debris impaired the plaintiffs ability to safely perform his job thus causing injury to the plaintiff.

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