Wolf v. American Tract Society

Appellate Division of the Supreme Court of New York · Torts

TortsNegligenceRes ipsa loquiturIndependent contractorsOwner liabilityfalling objectspublic streetpresumption of negligence

Facts

The plaintiff, a truck driver, was unloading pipe on Spruce Street beside a twenty-three-story building under construction when a brick fell from the building and struck him on the head. The American Tract Society owned the lot, Downey had contracted to take entire charge of construction and supervise contracts, and the Webers had contracted to perform the brick and masonry work and furnish scaffolding. Evidence showed the brick came from the building on a slant from a considerable height, but no witness could identify the exact place or person from which it fell. More than 250 workers employed by various contractors were working on the project at the time.

Issue

Does the fall of a brick from a building under construction into a public street create a presumption of negligence against the owner and the contractors in charge of the work? More specifically, is the owner liable where it has surrendered construction to independent contractors, and did Downey and the Webers rebut any presumption of negligence as a matter of law?

Rule

When a person lawfully in a public street is injured by the fall of an article from a building, proof of that fact raises a presumption of negligence against the owner or person in charge of the premises or work, requiring an explanation. But if the owner has surrendered construction to independent contractors and retained no control over the details of the work or the workers, the owner is not liable for their negligence absent evidence of the owner's own negligence. A contractual promise to indemnify the owner does not create a right of action for the injured person where the owner itself is not liable.

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

In Philadelphia, Nora Kim was walking lawfully along a public sidewalk beside a twelve-story office building under renovation when a chunk of tile fell from above and struck her shoulder. No witness could identify the precise worker or exact floor from which the tile came.

If Nora sues the party in charge of the renovation work, what is the strongest argument that she has made out a prima facie case of negligence?

Explanation. Under the majority rule, when a person lawfully in a public street is injured by an article falling from a building, the occurrence itself is prima facie evidence of negligence against the owner or person in charge of the premises or work. The plaintiff need not identify the exact actor or exact spot from which the object fell in order to invoke that presumption. (Derived from Wolf v. American Tract Society (n.d.).)