Construction sites can be dangerous – not only for workers, but also for pedestrians.
In Porteous v J-Tek Group, Inc. et al., a personal injury case, plaintiff sued to recover “damages for injuries he sustained when a falling piece of wood struck him in the head as he was walking on the sidewalk in front of a building owned by defendant 449 Washington LLC that was undergoing construction by defendant Six Sigma USA, Inc., an independent contractor hired by 449 Washington.”
Defendants moved for summary judgment. The lower court granted the summary judgment motion filed by defendants J-Tek Group, Inc. and 449 Washington LLC, and denied the summary judgment motion filed by defendant Six Sigma, Inc.
The Appellate Division, First Department modified that order to deny the motion as to 449 Washington and J-Tek, and otherwise affirmed it. That is, no defendant was entitled to summary judgment dismissing plaintiff’s complaint.
The court reasoned:
There is conflicting evidence in the record as to the source of the falling wood, whether Six Sigma was performing, or was scheduled to perform, exterior work at the time of the accident, and whether this work posed an inherent danger to pedestrians on the public sidewalk abutting the building. Thus, issues of fact exist whether 449 Washington can be held liable for plaintiff’s injuries as a building owner with a non-delegable duty not to cause harm to those traveling on the nearby public sidewalk or as an owner who knew or had reason to know that its independent contractor’s work involved special dangers inherent in the work or dangers that should have been anticipated.
The project architect’s disagreement with plaintiff’s architect’s reading of the plans and qualifications in rendering an opinion as to the source of the piece of wood that struck plaintiff, and defendants’ challenge to the credibility of a witness who was walking with plaintiff at the time of the accident, are matters for resolution by the trier of fact.
Defendant Six Sigma admitted that it performed all the construction work on the building, and, in moving for summary judgment, offered only speculation as to the cause of plaintiff’s injury.
Defendant J-Tek Group, Inc. did not establish prima facie that it was not involved in the project. Moreover the work permit was issued in its name therefore raising an issue of fact.