An individual walking on a sidewalk next to a building being constructed in New York City suffered injuries when a section of steel tubing that was being hoisted fell onto him from 11 stories up. It fell through a three-foot gap between the building and a sidewalk bridge intended to protect people walking beneath it. The gap resulted from a failure to meet the plans and specifications. The plaintiff sued many entities, including the project safety manager. In upholding summary judgment for the safety manager summary judgment, the court explained that there was no evidence that the safety manager committed negligence. Its failure to identify and correct the unsafe work did not give rise to a negligence claim “since [its] contract explicitly provided that its role on the project was solely in an ‘advisory capacity’ and that that it had no authority to supervise the contractors or to control or stop the work.” Dejesus v. Downtown Re Holdings, LLC, 217 A.D. 3d 524 (NY 2003).
Summary judgment was also granted and affirmed for the safety manager on the contractors’ contractual indemnity claims against it. This is because there was no evidence that the safety manager’s actions or omissions resulted in plaintiff’s injuries. The contention that the failure to identify and warn of the unsafe conditions constituted “omissions” was unavailing. The court stated:
“As noted, under its contract with Noble, City Safety was to serve only in an advisory capacity and had no obligation or authority to correct work hazards. Given the limited scope of City Safety’s responsibilities, the purported “omissions” were insufficient to trigger the indemnification clause (citation omitted).”
Risk Management Comment:
The indemnity provisions of the contract in question were not provided in the court decision. When our firm reviews indemnity clauses we like to revise them to state the Indemnitor will only indemnify for damages to the extent caused by the negligent acts, errors or omissions of the Indemnitor. In the court decision, the court essentially interpreted the indemnity clause in a manner consistent with the wording we like to use regarding causation. Because there was no evidence that the unsafe condition was caused by the safety manager who “had no obligation or authority to correct the work hazards” it had no indemnity obligation.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk 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. He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 26, No. 2 (February 2024).
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