Walls vs. Turner Construction and Strict Liability

Sunday, May 8, 2005 | 0

CONSTRUCTION MANAGER WHO MONITORED SAFETY CONDITIONS HAS STRICT LIABILITY FOR WORKER'S FALL FROM LADDER

Timothy Walls v Turner Construction Company, NYLJ 5/06/05 (Court of Appeals 2005)

Turner Construction Company entered into a contract with the Massapequa Union Free School District to serve as its construction manager for 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 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.

The Turner employee who was the superintendent of the McKenna site acknowledged in her deposition, "if 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. Turner's Safety, Health and Environmental Policy manual specifically provided that the project superintendent "create a ZERO TOLERANCE POLICY for project safety program violations."

During the course of this 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