Devlin v. Smith

New York Court of Appeals · 1882 · Contracts

ContractsTortsNegligenceIndependent ContractorsPrivityscaffoldnegligent constructionimminently dangerous

Facts

Smith, a painter under contract to paint the interior of the county courthouse dome, employed the deceased on that work and separately contracted with Stevenson, an experienced scaffold-builder, to erect a first-class scaffold. The scaffold collapsed when the ledger supporting the plank on which the deceased sat broke, and there was testimony that the scaffold had been improperly fastened by nailing rather than lashing with rope. The deceased was sitting on the plank performing the work for which the scaffold had been erected, and there was no evidence that he was in an improper place or unnecessarily exposed himself to danger. Smith had no scaffold-building expertise, did not supervise construction, and had no knowledge or reason to know of any defect.

Issue

Whether there was sufficient evidence for a jury to find that the scaffold was negligently constructed and that the deceased was free from contributory negligence. If so, whether Smith, who hired Stevenson as an independent contractor, or Stevenson, who built the scaffold, could be liable to the deceased despite the absence of privity between Stevenson and the deceased.

Rule

Questions of negligent construction and contributory negligence are for the jury where the evidence permits those findings. An employer is liable to employees for defective implements or facilities only upon proof of personal negligence, such as knowledge of the defect or failure to exercise proper care to discover it; an employer is not liable for the acts of an independent contractor in such circumstances. But a builder may be liable to third persons without privity when negligent construction makes the article or structure imminently dangerous to human life and serious injury to those using it is the natural and probable consequence of its intended use.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Cleveland, Ohio, Nora Velez hired Irongate Access Works, a specialty contractor, to erect a 12-story suspended work platform so window washers employed by Nora's company could stand on it while cleaning a downtown tower. Irongate used a fastening method that experienced platform builders testified was improper for a structure that would sway during use, and the platform collapsed, injuring Omar Reed, one of Nora's workers.

If Omar sues Irongate, which argument gives him the strongest basis for recovery under the governing rule?

Explanation. The majority recognized an exception to the no-privity rule when negligent construction makes the article or structure imminently dangerous and serious injury to persons using it is the natural and probable consequence of its intended use. A high work platform built so workers can stand on it fits that principle if negligently constructed. Liability does not depend on an express promise to the injured worker, and the case rejects both an absolute privity bar and strict liability. (Derived from Devlin v. Smith (n.d.).)