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By:  J. Kent Holland, Jr.

Where a construction manager, Tishman, only exercised general supervisory powers and did not control the means and methods by which a subcontractor performed its concrete work, the construction manager had no liability for injuries sustained by a laborer of the subcontractor.  The factual background involved a laborer employed by a concrete subcontractor  working on a construction project near Times Square.  He was injured when a pressurized concrete delivery pipe whipped around and caused him to fall.  The incident occurred while several coworkers were attempting to remove an obstruction from the pipes. In the case of Hughes v. Tishman Construction Corp., 836 N.Y.S. 2d 86 (2007), the laborer claimed Tishman negligently supervised the work. Tishman moved for summary judgment dismissing plaintiffs’ causes of action under Labor Law §  200 and for common-law negligence, on the ground that it did not control the means or methods of the work performed by Hughes.  The trial court denied the motion for summary judgment because it deemed there to be questions of fact to be determined by a jury.  This was reversed by the Appellate Division, First Department,  of the New York Supreme Court, which held Tishman was entitled to summary judgment.

Summarizing the existing law in New York, the appellate court stated that where a claim under Labor Law §  200 is based upon alleged defects or dangers arising from a subcontractor’s methods or materials, liability cannot be imposed on an owner or general contractor unless it is shown that it exercised some supervisory control over the work   “General supervisory authority,” said the court,  “is insufficient to constitute supervisory control;  it must be demonstrated that the contractor controlled the manner in which the plaintiff performed his or her work, i.e., how the injury-producing work was performed.”

Deposition testimony demonstrated to the court’s satisfaction that Tishman’s project superintendant did not act in a manner to control how the subcontractor performed its work.  The court explained that Tishman’s project superintendent, testified that his job was to “[o]versee all job site activities as it [sic ] pertains to the schedule and conformance of plans and specifications,” and “monitor[ ] the [project’s] milestone schedule [i.e., schedule of all activities from start to completion of project].”  He also testified that Tishman did not control the means or methods of the subcontractors.   The court concluded that Tishman’s assistant superintendent, (Mr. Iannotta) “merely observed the concrete work and encouraged Hughes and his coworkers to “hurry up” and finish spreading the concrete.  Iannotta’s presence and encouragement are not sufficient to establish the requisite supervisory control.”

In seeking to show that Tishman controlled the work, the plaintiff presented testimony by another laborer that  because concrete brought to the site must be used within a relatively brief window of time, “everybody is yelling at you to … hurry up.”  The court found that regardless of the subjective feelings of “pressure” Hughes may have experienced as a result of Tishman’s admonitions to “hurry up,” this is of no legal consequence because, “Those feelings do not bear on, and thus are insufficient to demonstrate a triable issue of fact with respect to, whether Tishman controlled the manner in which Hughes performed his work.”

Deposition testimony that the court stated buttressed its conclusion that Tishman did not control the manner in which the work was performed included the following passage from one of the laborer’s depositions:

Q: When [Iannotta] was yelling for every one to hurry up and get the machine unclogged, did he tell you how to unclog the machine?

A: No.

Q: Has he ever told you how to go about doing your job?

A: No, he is just a super that pushes the work.

Q: Whom did you take orders from while you were at the job, who is your boss?

A: My boss was [a foreman for Sorbara].

*   *   *   *   *   *

Q: On the date of the accident, when you went about your job responsibilities, you testified before that the only person who supervised you was [a foreman for Sorbara];  is that correct?

A: Yes.

In addition, there was deposition testimony by the site safety manager that was working under subcontract to Tishman.  His testimony was as follows:

Q: While you were at the [site], did you ever personally observe or overhear [Essen] or [Iannotta] or anyone from Tishman instruct a contractor such as Sobarra [sic ] on the means and methods of their work?

A: For clarification when you say means and methods, referring [sic ] if they saw something is–that they didn’t like and they wanted changed;  what are you asking?

***3 Q: How to actually do the work?

A: No.

Q: Specifically with respect to the pouring of concrete or pumping out of concrete, did you observe or overhear them telling the contractors how to pour or pump the concrete?

A: No, sir.

The court said that the site safety manager employed by another contractor, Site Safety, Inc. testified that he observed Iannotta, Tishman’s assistant superintendant, overseeing the work on a “daily basis” and that if Iannotta “saw something that he didn’t think was right, [he] would tell them to change it.”  But this testimony, says the court, “demonstrates nothing more than that Tishman’s assistant superintendent was not an idle or passive presence.  Particularly given its utter generality, it does not undermine Rizzo’s later and specific testimony that neither Essen nor Iannotta controlled the manner in which Hughes performed his work.”

In its holding, the court concluded: “Site Safety, Inc., which Tishman hired to comply with Administrative Code of City of New York §  27-1009(d), did not control the manner in which Hughes performed his work.  Site Safety’s role on the site was limited to performing safety-related tasks;  it did not have the authority to control the manner in which the trades performed their work nor did it attempt to do so.  That Tishman, Site-Safety, or both, may have had the authority to stop work for safety reasons is insufficient to raise a triable issue of fact with respect to whether Tishman exercised the requisite degree of supervision and control over the work being performed to sustain a claim under Labor Law §  200 or for common-law negligence.”  The court concluded:  “At bottom, the evidence submitted in support of Tishman’s motion demonstrates that Tishman only exercised general supervisory powers.”   For these reasons, the court held that summary judgment should have been granted for Tishman.

Comment: This decision clarifies that the overarching principle under the New York law at Labor Law section 200 and under general common-law negligence is that liability may only be imposed on a general contractor or construction manager who controls the manner in which a subcontractor’s laborer perform his work.  Two separate lines of cases in New York could lead to different results.  In a dissenting opinion, one of the justices objected to the holding of the majority because he believed “the presence of a site safety coordinator who could stop work at the site would raise a triable issue of fact as to supervision and control sufficient to defeat a summary judgment motion.”   What was key to the majority’s conclusion was the deposition testimony.   Tishman and its site safety subcontractor testified quite plainly that they did not control the subcontractor’s work.  The subcontractor laborers likewise testified that Tishman did not direct them or instruct them how to perform their work.   This decision of the court sets important precedent that will be instructive to the courts in applying the law as well as to construction managers in performing their services in a manner to be within the holding of this decision.

About the author: Kent Holland is a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects – including assistance with contract drafting, review and negotiation; change order and claims analysis (preparation or defense); risk management advice concerning insurance coverage – including assistance with negotiating and drafting the terms and conditions of policies and endorsements, advice to insurance underwriters; guidance to those procuring insurance; change order and claim preparation, analysis and defense; contract preparation; contract review and contract negotiation.  Mr. Holland is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 9, No. 7.