Caswell v. Lynch

Opinion

RICHARDSON, P. J.

Plaintiff, employee of a subcontractor on a construction job, appeals from a nonsuit in an action for personal injuries against defendants who are both owners of and general contractors on the construction of the residence in question.

The issues presented, simply stated, are whether defendants owed plaintiff, an employee of a subcontractor, a duty of care, and, if so-, what the nature of the duty was, and whether the duty was breached.

[90]

Plaintiff was employed by a sheetrock contractor, who, in turn, was hired as a subcontractor by defendants, the owners and general contractors. On July 19, 1965, plaintiff and two fellow employees were working on the residence in which the walls, windows, roof, plumbing, wiring and framing had been completed. While plaintiff was in the process of installing sheetrock on the furnace-room ceiling, and while no other subcontractors were working on the premises, a piece of lumber fell from above the ceiling, striking plaintiff’s right wrist, knocking him to the floor and causing personal injuries.

No direct evidence was introduced as to what caused the lumber to fall, or as to the identity of the party who had placed the lumber above the ceiling. It could be inferred from the statements of one witness that the framing was done by a subcontractor of the defendants.

The lumber causing the injury was described as a two-by-six approximately 5 to 7 feet in length with two nails toe-nailed through the wood at one end, and with two other nails lightly driven into the other end. It is reasonable to presume that the object causing the injury was jarred loose from its position on the joists by the hammering incident to installation of the sheetrock.

Additionally, the record reflects testimony of plaintiff that while he was in the company of Wendell Rhoads, Rhoads had a conversation after the accident in question with Payne, a supervising foreman for defendants, to the effect that he (Payne) “was very meticulous in his work and if it was his boys this never would have happened, but he’s got four or five instances of the same thing, and he’s going to have to get on them because they haven’t been nailing the braces in.” Rhoads was called as a witness and described the conversation as occurring at one of the construction sites of defendants’ duplexes shortly after and on the same day that a similar “two-by-six fell out of the ceiling and almost struck me.” Rhoads quoted Payne as saying defendants “had tried to keep [szc] the guys to clean up the debris, out of the attics ... he tried to- get his men to clean it up”; that he “tried to get someone to clean up debris on the joists”; and that Rhoads, together with others, before the accident in question had asked Payne to “clean their buildings out too.”