Cohen v. Josam Construction Corp.

Stevens, J.

This is an appeal from a judgment entered October 21, 1960, upon a directed verdict, dismissing the complaint at the conclusion of the case.

The facts are sufficiently stated in the dissenting opinion to obviate the necessity of extended repetition. The plaintiff, an employee of the painting subcontractor for the job, is here suing the brick subcontractor for injuries suffered when he fell from a bricklayer’s scaffold while painting two small peaks on the building.

Plaintiff, a painter, testified he was directed by his employer to use the scaffold for work which would have required approximately one-half hour. Permission was neither sought from nor granted by the defendant Josam Construction Corp. (herein Josam), which had erected the scaffold for its bricklayers. This accident occurred February 16, 1955. The bricklayers had last used the scaffold on February 11, 1955, and were to return to the job later to complete work on the stoops and garages.

Plaintiff sues on the theory of common-law negligence. He testified that he went through a window upon the scaffold and did not examine it at all before beginning to paint. There was no testimony that the scaffold was or had been unfit for use by the bricklayers — the purpose for which it had been constructed.

Plaintiff can succeed only if he can show either that he was invited to use the scaffold, or that the defendant, in the exercise of reasonable care, might reasonably have anticipated its use by plaintiff or employees of other contractors or subcontractors on the job.

Insofar as the employees of Josam are concerned, Josam had an absolute duty to construct a safe, suitable and proper scaffold for them. For Josam to be liable to plaintiff it must appear either that plaintiff was entitled to use or was lawfully upon such scaffold by invitation, express or implied (Huston v. Dobson, 138 App. Div. 810), or that Josam might reasonably have anticipated the use of the scaffold by plaintiff (McGlone v. Angus, Inc., 248 N. Y. 197).

In the McGlone case (McGlone v. Angus, Inc., supra) the iron and stonework employees were working on the job together. The defendant (engaged in the stonework) had laid planks across iron beams upon which plaintiff, an ironworker, stepped and fell because the boards were insecurely fastened. It was stated under such circumstances defendant had reason to anticipate the scaffold would be used by others.

In the case before us defendant had suspended work five days earlier and was not then working at the premises. Moreover, plaintiff and his employer only contemplated work which would consume approximately one-half hour and for which, by their testimony, ladders would ordinarily have been used. Defendant could hardly have anticipated this fleeting use. Nor was plaintiff expressly invited to use the scaffold as in Huston v. Dobson (supra) or directed by defendant to do so. There was testimony that this scaffold was only for the use of the working bricklayers, and that even their employer was not permitted upon the scaffold. There was no proof of knowledge by defendant of the use of this scaffold by others, or any credible evidence of circumstances from which defendant might reasonably, and in the exercise of due care, have anticipated such use (cf. Cole v. Long Is. Light. Co., 24 Misc 2d 221).

There is no testimony here of any hidden defect. In fact plaintiff testified he did not examine the scaffold at all.

Negligence, broadly speaking, is conduct which falls below the standard of what a reasonably prudent person would do under the circumstances, and it must be judged as of the time it is engaged in (2 Harper and James, Law of Torts, § 16.1-§ 16.5).

The brickwork extended upwards to the roof which had not been placed when the bricklayers suspended work. To hold that Josam must reasonably have anticipated the placing of a sloping roof with a small segment, a peak, which would have to be painted and for which its scaffold might be used is to move beyond the requirement of ‘‘ quantitative probability of some such injury as a foreseeable consequence ’’ (2 Harper and James, Law of Torts, p. 930), to the standard of absolute liability. This the law has not seen fit to do in common-law negligence cases. (Cf. Ehrlich v. C. B. S. Columbia, 16 Misc 2d 793.)

The judgment appealed from should be affirmed, with costs.