Carinha v. Action Crane Corp. , 58 A.D.2d 261 ( 1977 )

Capozzoli, J.

I agree with the opinion of Mr. Justice Lupiano, except as to that portion which would affirm the trial court’s dismissal of the complaint against the defendant, Action Crane Corporation, at the close of the case on the ground that, as a matter of law, Harrington, the crane operator, was not an employee of the defendant, Action, when the accident happened. I am of the opinion that, in view of the specific terms of the lease contract entered into between Action and S. & S. Concrete, Harrington, at the very time of the accident, was still representing Action, as he did when he went to the Action yard on the instructions of Action, greased the crane and then drove it to the job site, again on the instructions of Action. Therefore, the trial court should have submitted the issue to the jury to decide.

While it is true that Harrington was to be paid by the S. & S. defendants when operating the crane at the job site and further that he was subject to their instructions, it must be emphasized that this would be true only after the crane had been properly placed in a safe and stable position, ready to do the work for which it was hired and for which the operator was furnished by Action.

It must be noted that, under the terms of the contract, Action not only leased the equipment, but also "furnishes operational personnel to the lessee”. Obviously, since Action reserved the right to furnish its own operator, it must be held to have represented to the lessee that this operator, Harrington, was competent and able to perform the duties which were required to be performed under the contract.

Great reliance is placed by Action on the case of Szarewicz v Alboro Crane Rental Corp. (50 AD2d 770 affd 40 NY2d 1076). The contract which leased the crane in the last-cited case is vastly different from the contract in the case at bar. The latter, amongst other things, provides as follows: "The lessor hereby leases the equipment described on the reverse side and furnishes operational personnel to the lessee.” (Emphasis supplied.)

Nowhere in the contract considered in Szarewicz (supra) is there any indication that the lessor in that case was to furnish the operator, nor did it furnish him. That agreement simply covered the rental of the crane and called for nothing else to be done by the lessor. In fact, a reading of that agreement denotes that the lessee was to furnish his own operator because it also provided that Alboro was to "on request, furnish the services of a mechanic without charge to demonstrate it and instruct your operator.” (Emphasis supplied.) In another portion of the same contract we find that the lessee was to return the crane to Alboro "in as good condition as received less wear incident to normal use in the hands of a competent operator”. (Emphasis supplied.)

None of this language is found in the contract involved in the case at bar. On the contrary, it is to be repeated that Action specifically reserved unto itself the furnishing of the operator. It must follow that it impliedly represented that the operator furnished by it would be competent, able and could be trusted to perform the duties called upon him to perform at the job site.

It seems to be perfectly reasonable that one of the duties of the operator of the crane was to set it up, at a place indicated by the lessee, in a safe and stable position. It was only after the operator of the crane had carefully and safely erected the crane that the lessee could then use it for the purposes for which it had been leased. But the operator failed to erect the crane in a stable position because, before the actual work of the lessee was begun, the crane toppled over. It is clear from the evidence that the toppling over of this crane was due to the improper placement of same by the operator and because of his negligence and incompetence. There is nothing in the record to indicate that the lessee assumed the duty of placing the crane in a safe and stable position. This was the job of the lessor’s operator.

It should be noted that the lease contract, in paragraph 2 thereof, makes frequent mention of "lessor’s employees”. What lessor’s employees could they be talking about except for Harrington? Other than Harrington there was no one else on the job site who could possibly be an employee of the lessor. In the same paragraph we find the following: "Lessee shall not be required to indemnify lessor for its sole negligence, but, lessor’s liability for damage caused by the sole negligence of lessor, its agents and employees, hereunder shall be limited to the amount of lessor’s liability insurance.”

This is a specific provision by which the lessor agrees to become liable for damages caused by its employees. Again, the question is asked. Who are the employees other than Harrington?

A fair question of fact was presented as to whether, when the accident happened, the operator, Harrington, was acting as an employee of the lessee or was still performing the work which was his duty to perform for the lessor, viz: erecting the crane in a safe and stabilized position, and it should have been submitted to the jury.

The evidence discloses that Harrington had a long-standing relationship with Action, having first worked for Action as an oiler and then as an operator. While it is true that Harrington appeared on more than 56 different payrolls during the year 1971, he also appeared on the books of Action as an employee and was paid $1,484.27 as wages by Action, during the same year. Harrington consistently worked upon Action equipment. When a job terminated Harrington would continue to report to Action’s yard and take his work assignments from Action’s dispatchers. In fact, following the happening of the accident, Harrington told the investigators of the Police Department and Department of Labor that he was employed by Action Crane Corporation. Again, at his examination before trial, held in May, 1973, he stated that, when he received his operating engineer’s license, he was first employed by Action and that he continued to work for Action up to the date of this examination. However, five days before the trial, Harrington changed this testimony.

For the reasons given, the judgment of the Supreme Court, New York County (Chimera, J.), entered on March 12, 1975 should be modified, on the law and on the facts, to the extent of reversing so much thereof as (1) dismisses the complaint against defendant, Action Crane Corporation, and, (2) dismisses the cross complaints and cross claims of defendants, Turner Construction Company, Harrington, Plainview S. & S. Concrete Co. Inc., Geico, S. & S. Concrete Corporation and Westbury S. & S. Concrete Company, Inc., against Action Crane Corporation; and the interlocutory judgment entered on June 4, 1975, should be modified, on the law and on the facts, to the extent of reversing so much thereof as (1) dismisses plaintiffs’ complaint against defendant, Harrington, based upon sections 11 and 29 of the Workmen’s Compensation Law; (2) awards judgment to Turner and Geico against Plainview, S. & S. and Westbury based upon common-law indemnity and (3) apportions damages between Plainview, Harrington, S. & S. and Westbury, and a new trial ordered on the issues thus remaining. As modified, the judgments should be affirmed, with costs to plaintiffs as against defendants, Turner and Geico, and costs to abide the event as to the other litigants.