Death on the construction site is a horrible thought.  Decedent plaintiff in this case suffered an unnecessary electrical shock while working on a Church, and then fell 150 feet to his death.  Are any of the professionals who planned or supervised the work potentially responsible?

Mulhall v Archdiocese of N.Y.  2015 NY Slip Op 31378(U)  July 24, 2015  Supreme Court, New York County  Docket Number: 151656/12  Judge: Ellen M. Coin discusses the liability of professionals and the property owner.  We’ll look at the professionals today and the land owner on Monday.

On October 13, 201 l, Janusz Wojciech Zdybel (Zdybel) died while working for third-party
defendant West NY in a church on the upper west side. Along with his colleague, Ruslan
Brianyk (Brianyk), Zdybel was working from a ladder placed on a catwalk in the attic of the
church. Brianyk and Zdybel were installing safety equipment for a renovation job on the
church’s roof. More specifically, they each held one end of a bracket that they were trying to
drive through the roof (Brianyk dep at 115-118). A metallic sheathed electrical cable leaned
against the ladder as they worked (id. at 122, George Grenier aff, if 17). While Brianyk held
onto a beam next to the ladder with one hand and the bracket with the other, Zdybel held the
bracket with one hand and in the other he held a pipe that he used to hammer the bracket into
place (Brianyk dep. at 118). When Zdybel’s end of the bracket suddenly shifted into place, both
men received an electric shock (id. at 119). While Brianyk remained on the ladder, Zdybel was
convulsed, let go of everything, and fell to the floor 150 feet below (id. at 119 – 120, 142;
Complaint ¶ 3 at 2 ).
The roof renovation project that led to Zdybel’s death arose from an agreement between
the Church and West NY entitled “The Church of Saint Paul the Apostle Church Building, Phase 2, Roof Areas Restoration Project” (Ex W to the Affirmation of Cruz M. Williams dated Nov. 3, 2014). The Church owns the subject property. The Archdiocese, ABC, and the Finance Council are affiliated with the Church. Old Structures provided structural engineering services to the Church for exterior renovation.

In April 2012, plaintiff commenced this action by filing a summons and complaint. The
first cause of action alleges that the Church, ABC, the Finance Council and defendant Vertical
Access, LLC (Vertical) are liable to plaintiff’s estate under Labor Law § § 200, 240 (I), 241 and
241 (6). The second cause of action alleges that all defendants (but with specific reference only
to Belmont Electrical, Inc.) are liable for negligence and gross negligence, while the third alleges
professional negligence against Old Structures, and the fourth alleges professional negligence against Vertical. The fifth cause of action alleges breach of warranty against all defendants. Finally, the sixth cause of action alleges spoliation of evidence against the Archdiocese, the Church, and the Finance Council.”

“Old Structures provided structural engineering services which did not involve the iron
bracket installation work Zdybel was performing at the time of the accident. It argues that it
cannot be held liable for negligence because it had no duty to Zdybel, as it did not control the
means and method of his work. Old Structures submits the depositions of West NY employees
Brianyk, Tomacz Mikucki (Mikucki), and Gregory Kendzior (Kendzior), which, taken together,
show that Old Structures did not control the means or methods of Zdybel’s work.
Old Structures also argues that it is not liable in negligence because it did not proximately
cause Zdybel’s death, as the design work it did for the Church did not involve the attic area
where Zdybel was working when he fell. Moreover, Old Structures argues that plaintiff cannot establish negligence because it has not hired an expert.

Here, Old Structures is not liable to plaintiff because it had no duty toward Zdybel. A
party that enters into a contract to provide services typically does not have a duty to third parties (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). None of the Espinal exceptions are present here. As to the argument regarding 1 RCNY § 21-01, even if Old Structures had violated this regulation, it would not establish a duty to Zdybel. Moreover, it is clear that Old Structures did not voluntarily assume a duty to Zdybel through Stivale’s expression of concern regarding the electrical system.”

“Old Structures argues that it is not liable for breach of either implied or express warranty,
as it made no express or implied warranties regarding the electrical system. Plaintiff does not
respond to defendant’s arguments. As such, plaintiff has abandoned the breach of warranty claim
against Old Structures (see generally Gary v Flair Beverage Corp., 60 AD3d 413, 413 [1st Dept
2009]). Accordingly, Old Structures’ motion is granted and all claims against it are dismissed.”