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Appellate Division Holds Building Owner, General Contractor Not Entitled to Summary Judgment in Res Ipsa Loquitur Case

HOME -> Our blog -> Appellate Division Holds Building Owner, General Contractor Not Entitled to Summary Judgment in Res Ipsa Loquitur Case

13 February 2015
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A man was struck in the head by piece of wood that fell from a construction site he was passing with a friend.  The building was recently acquired by some company which planned to convert the premises into residential condominiums. The injured man sued the new owner of the building and a general contractor to recover damages for sustained injuries. Both defendants filed a motion for summary judgment dismissing the compliant.

A manager of the property testified that, on the day of the incident, the building was entirely vacant. He said that he saw no loose debris or building material on the roof. The manager also testified that there was no scaffolding in place around the building at the time of the incident, nor netting to catch debris. He identified several photographs of the building showing a wooden railing on a balcony on the fifth floor, which was scheduled to be removed in the construction project. 

Although he was able to call 911 following his accident, plaintiff was dizzy as a result of the blow and had trouble standing up immediately thereafter.    He remembered that he experienced severe pain, but many other details escaped him.  Thus, in opposition to the defendants’ motions, plaintiff submitted an affidavit of his friend with whom he was walking that day. The friend testified that he “observed a piece of wood fall from above and strike plaintiff on the head.”  He also saw two construction workers using sledge hammers to break apart the wooden railing and appurtenances at or near the perimeter of the building’s roof.  According to plaintiff’s friend, large broken pieces of wood were hanging from the perimeter of the roof.

Plaintiff also submitted an affidavit of a licensed architect who compared that piece of wood that struck plaintiff to wood members revealed in the video and photographs of the building. The architect concluded that the physical piece of wood “was similar in color and dimensions to the wood in the video/photographs.”  Additionally, the subject wood was splintered, indicative of having been broken.

The lower court explained that to establish a prima facie case of negligence, “a plaintiff must prove actual or constructive notice of the dangerous or defective condition and a reasonable time within which to correct or warn about its existence.”   To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it.

The lower court granted the summary judgment in favor of the building’s owner. The Court reasoned that, assuming that the wooden structures on the building were being demolished in a reckless manner, the owner would not have had notice of this transitory condition.

In the claim against the general contractor, plaintiff raised the doctrine of res ipsa loquitur, which allows a jury to consider the circumstantial evidence and infer that defendant was negligent in some unspecified way.  Accordingly, the lower court explained that “the submission of a case to a jury on the theory of res ipsa loquitur is warranted when the plaintiff can establish the following elements: (1) the accident is of a type that does not occur in the absence of negligence; (2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.”

The lower court held that circumstances underlying this case met these criteria and thus denied the summary judgment motion filed by the general contractor. The court pointed out that a wooden board flying through the air is not a natural and unpreventable event. Additionally, the Court indicated that construction site was exclusively under control of the general contractor. The Court pointed out that the rule has the effect of creating a case of negligence sufficient for submission to the jury which may — but is not required to — draw the permissible inference.  Both parties appealed.

On appeal, the First Department held that the lower court incorrectly dismissed the plaintiff’s claim against the owner of the building because issues of fact existed whether the owner knew or had reason to know that its independent contractor's work involved special dangers to walking pedestrians that should have been anticipated.
    
Therefore, the First Department upheld the lower court’s decision in part and reversed the summary judgment granted in favor of the owner.  The case was remanded to the lower court for further proceedings.



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