Petition for a Writ of Certiorari — Allied Cleaning Contractors, Inc. v. Allied Maintenance Corp.

| NOV 1 1956

[oun t. F

EY, Clerk

IN THE

Supreme Court of the Rnited States

OCTOBER TERM, 1956

No. 54]

ALLIED CLEANING CONTRACTORS, INC.,

Fourth-Party Defendant,

Petitioner,

Uv.

ALLIED MAINTENANCE CORPORATION, Third-Party

Defendant, TRANS WORLD AIRLINES, Defendant and

STEVE KOZMAN, Plaintiff,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Bruce A, Pettiyoun, JR.

Counsel for Petitioner,

199 Church Street,

New York 7, N. Y.

WO 4—7100

WituraM H. STIEGLITZ,

Harry SCHECHTER,

RayMmonp C. GREEN,

Of Counsel.

Reape ER, AARNE CS ORL EERE SE LD AINA SD TT LMT

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INDEX

Opinions Below ....-.--++++eeeeeerreerrtstst

Juriadiction ........scceccecccccnenssensesecaeees

Questions Presented ....-...-s+-seerererestttttes 2

Statutes, Rules and Regulations Involved .......-- 3

Btatomamt ...cccccsccacccscccccssscenscoucescsess 3

Reasons for Granting Writ ...------+s+sseeertete 4

Comolasion ......scccscsecsncnccnsncccsceseaseces 21

Appendix A—Opinions and Memoranda Decisions

MMO cavnccascasnanncaaeacnecaancstaucene’ 22 é

Appendix B—Statutes ........-++ssseeseeetteee 41 tL

=

Appendix C—Industrial Code Rule No. 21 ......--- 44 i

CrraTioNs

Cases:

Banks v. Central Hudson Gas & Elec. Corp., 224

F 2d 631, cert. den. Central Hudson Gas & Elec. i

Corp. v. Banks, 350 U. S. 904 ..--.++++++ +002: 21 a

Bobbey v. Turner Const. Co., 308 N. Y. 890 ....-- 17, 18, 19

Broderick v. Cauldwell-Wingate Co., 309 N. Y. 872... 20

Burris v. American Chicle Co., 120 F. 9d 218 ....5, 10, 14,

16,18

Chideckel v. Dime Savings Bank of Williamsburgh,

103 N.Y.S. 2d G16 ..... 2. eee eee ee eee erences 18

Dell ’Olio v. Mastronardi, 267 App. Div. eer 18

Dick v. Sunbright Steam Laundry Corp., 307 N. Y.

OE: .: 4 edagwhbudeunsieaapseedeesncesvess 20

Duncan v. Twin Leasing Corp., 283 App. Div. 1080

leave to appeal denied 307 N. Y. 943 ....16,17, 18, 19

ee ee ee eee ee es — —

}

il INDEX |

PAGE

Gambella v. John A. Johnson & Sons, Inc., 285 App. y

ee BD nc ccc car cnsececasnncenccensecsecsecs 5 r

Hawley v. Alaska Steamship Company, 236 F. 2d 307,

"ee are re ey erry eee re tet ee OL 12 1

Hente v. Shereoop, 289 N. Y. 140 ....--- +e eee seers 18

Homin v. Cleveland & Whitehall Corp., 256 App. Div. ,

187 rev’d on other grounds, 281 N. Y. 484 ....-. 16

Johnson v. Erie Railroad Company, 236 F. 2d 352, ,

EE en ree Tee Tee et eo 7 ’

Jolles v. 3720 Corporation, 163 Mise. 51 .......--- 18 |

Kingda v. Charles F. Noyes Co. Inc., 260 N.Y. 521... 16

Koenig v. Patrick Const. Corp., 298 N. Y¥. 318 ...... 12

Lowenhar v. Commercial Outfitting Corp., 260 App.

Div. 211, affd. 285 N. Y. 671 «2... -. ee ee eee eens 16

McKay v. Pedigree Fabricks, Inc., 74. N.Y.S. 2d 385... 18

MeManus v. Board of Ed. of City of Rochester, 106

i oe) ) eer. 18 |

Marrone v. John A. Johnson & Sons, Ine., 283 App.

ee WEE ii cc dca nsdeneavacdaceénneonacepesss 5

Miller v. Pennsylvania Railroad Co., 236 F.2d 295... 20

Morris v. Attula, 74 N.Y.S. 2d 386 .....---.0++++05> 14,18

Osborne v. Salvation Army, 107 F. 2d 929 .....-.--- 16

Phoenix Bridge Co. v. Creem, 102 App. Div. 35, aff’d

185 N. V. 5BO .... wee e www e we wesw cece ee eeees 13

Pollard v. Trivia Building Corp., 291 N. Y. 19 ...--. 10, 16

Rufo v. Orlando, 309 N. Y. 345 .....---+++ee5+5> 10, 17, 18

Semanchuck v. Fifth Avenue 27th St. Corp., 290 N. Y.

en ee ee Sas Rin NSS NORA SR OESEDSS 16, 17, 18, 20

Stern v. Great Island Corp., 250 App. Div. 115 ....- 16

Storoz v. International Business Machine Corp., 91

N.Y.S. 2d 367, affd. 276 App. Div. OTD ....nn0e 13, 14

PERT RU ERE E O — — aoe

ae

a = anne “ ie ne, ae

| INDEX iii

Teller v. Prospect Heights Hospital, 280 N. Y. 456 .. 8,10

Thompson-Starrett Co. v. Otis Elevator Co., 271 N. Y.

Re rrererrr reer ttt ter ttre 20

Vooth v. Castroviejo, 206 Mise. 85, Affd. 285 App. Div.

867, leave to appeal denied, 308 N. Y. 1062 ...... 15

Walters v. Rao Elec. Equip. Corp., 289 N. Y. 57 ... 16, 17,

18, 20

Wischnie v. Dorsch, 296 N. Y. 257 ......-.--+++005> 18, 19

Williams v. Rhode Island Corp., 281 App. Div. 618 .. 5

Zuccelli v. City Contracting Co., Inc., 286 App. Div

ee Cie EAGASENNESR AUR EESEKH EONS )

Statutes:

| Federal Business Records Act, 98 U.S.C. §1732 ..2, 3,5, 7

Federal Impleader Statute, Rule 14 F.R.C.P., 28

Tn np nen edad es Skew nanan centnntanaanes 5

| New York Impleader Statute, § 1938a C.P.A. .......-+- 5

New York Labor Law:

COG inca ince cn cacsanerecwescenscceanesaceses 2,9

GOD cc cnccesesasccaccccusnssenecsccsasscusens 2,9

GOR occ sinc nwneneuincnuscasedapscwae senses 2,9

Serer rrr 2, 3, 4, 5, 8, 9, 11, 12, 15, 16, 17, 18, 19

BOER nc cnn csc cccncncsensnbecncerananececes 16, 18, 19

RONG nc ssanancasswancecssdsbnastaducesaseses 18, 19

New York Vehicle and Traffic Law:

RO y ceca nnccasdsbeees stadia ter caneseeseszes 18

New York Workmen’s Compensation Law:

§ 3, Groups 3 and 13 ....---- see ee reer re sree 19

Rules and Regulations:

Industrial Code Rule No. 21 .......+-++++> 2, 3, 8, 9, 18, 15

As amended 1933 .......0eeeeeeeereeeeeeeetees 11

As amended 1944 ........eee cece eeees 2, 3, 8, 9, 11, 15

re ee

In THE

Supreme Court of the United States

OCTOBER TERM, 1956

No.

4-—__——_—_—

Auuiep CLEANING CONTRACTORS, Inc.,

Fourth-Party Defendant,

Petitioner, A

v.

ALLIED MAINTENANCE CORPORATION, Third-Party Defendant,

Trans Worip AIRLINES, Defendant and Steve Kozman,

Plaintiff,

Respondents.

Pai iia

a RS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Second Circuit, entered in the above entitled action

on August 6, 1956.

as Mac a i ee a a fh Be

Citations to Opinions Below

The judgment of The District Court was entered upon

a jury verdict. The majority and dissenting opinions of

the United States Court of Appeals for the Second Circuit

are unreported to date and appear in the appendix hereto

‘=

sy

at pages 22 to 39. The majority and dissenting memoran-

dum decisions on the petition for rehearing are unreported

and also appear in the appendix hereto at page 40.

2

Jurisdiction

The judgment of The United States Court of Appeals

for the Second Circuit was made and entered on August 6,

1956. The order of The United States Court of Appeals

for the Second Circuit denying the petition for rehearing

was made and entered on August 27, 1956. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254 (1).

Questions Presented

I. Whether history statements regarding the accident in

issue in respondent Kozman’s medical records are admis-

sible in evidence against petitioner, and Kozman’s co-re-

spondents under the Federal Business Records Act, 28

U.S.C. § 1732, and whether the Court below was justified

in failing to fully consider this issue in the light of the

record.

II. Whether petitioner and respondent Kozman’s co-

respondents can be held to have violated the New York

Labor Law Sec. 202 when they complied with the pro-

visions of Industrial Code Rule 21 promulgated by the

New York Board of Standards under authority vested in

it by the New York Labor Law Sec. 27a, 28, 29 and 202.

III. Whether respondent TWA could be entitled to in-

demnity from respondent Allied Maintenance Corporation

and whether respondent Allied Maintenance Corporation

could be entitled to indemnity from petitioner upon the

theory advanced by the Court below in affirming respond-

ent Kozman’s judgment against respondent, TWA.

parsons — —— —_—— -

7

IV. Whether a violation of New York Labor Law Sec.

202 by respondent, TWA would render it an ‘‘active”’

tort-feasor per se who could have no right to indemnity

at common law.

V. Whether the indemnity provision in the contract be-

tween respondent TWA and respondent, Allied Mainte-

nance is sufficient to entitle respondent TWA to a judg-

ment over against respondent, Allied Maintenance Cor-

poration.

VI. Whether the errors in the Trial Court’s charge to

the jury on the first cause of action asserted by respondent,

Kozman against respondent TWA would at the very least

require a new trial on the issues in the impleader actions

despite any affirmance of the judgment in favor of re-

spondent, Kozman.

Statutes Involved

98 U.S.C. § 1732 (The Federal Business Records Act) ;

N. Y. Labor Law § 202 (The Window Cleaners Statute)

and Industrial Code Bulletin Rule No. 21 (The Window

Cleaners Code).

Statement

Since the majority opinion’s statement and factual ac-

count (pp. 22-25, infra) recite the background and facts of

this case we will not encumber this petition by repeating

them here, with the exception that the testimony referred

to in the last paragraph of the factual statement will be

set forth verbatin and without interpretation. It is as

follows :

‘‘Q. Mr. Kozman, did this ladder slip from the feet?

A. It did. As it started falling, I was working on it—

Mr. Reilly: I object to this under the guise of

cross-examination. One can’t elicit self-serving

declarations.

ed T

Mr. Green: I am not trying to, I am only con-

cerned with my client.

The Court: I will let the witness answer. Just

answer the question.

Q. Did the ladder slip from the bottom? Did the

feet slip? A. It slipped to the right side. I was blown

off.

4

Mr. Green: I move to strike it out.

Q. My question was, sir, did the feet of the ladder

slip? A. No.’’ (165)*

Reasons for Granting Writ

Allied Maintenance and Allied Cleaning extensively

argued in the Cireuit Court that the Trial Court erro-

neously admitted into evidence insofar as they were con-

cerned, hearsay in the form of written history statements

in plaintiff’s hospital record, his physician’s notes and

reports, and history testimony by the same physicians,

and that this hearsay formed the basis for the submission

to the jury of plaintiff’s Labor Law (Section 202) cause

of action and the impleader actions.

The Circuit Court refused to concern itself with this

question by calling the contents of the reports trivial and

unprejudicial to the impleaded defendants (it made no

comment on the oral hearsay testimony), and by finding a

ground upon which to affirm the verdict which was not

even charged by the Court nor considered by the jury.

(See e.g. Allied Cleaning Contractors, Inc.’s request to

charge #17 which was ostensibly granted (278)).*

A fair reading of the record must convince this Court

that the entire verdict was tainted by this hearsay, if

improperly admitted, and that the Circuit Court’s refusal

* Numerals in parentheses refer to pages of appendix of fourth-

party defendant-appellant in the Court below.

to consider this question of whether medical record history

statements may be admitted against third persons under

the Federal Business Records Act, 28 U.S.C. § 1732 should

not prevent this Court from doing so.

The heart of the oral and record hearsay testimony was

its continued reference to the slipping of the ladder upon

which plaintiff was working (117-145) as contrasted to

plaintiff’s testimony that the feet of his ladder did not

slip (165). All of this hearsay was introduced into evi-

dence by TWA for the prime purpose of drawing liability

unto itself under the Labor Law cause of action on the

theory that absence of shoes on the ladder caused it to

slip and fall as a consequence of which TWA could receive

indemnity under an analogous case (Burris v. American

Chicle Co., 120 F. 2d 218). This idea of a defendant’s

assuming liability upon a theory which would allow it to

pass it on to an impleaded defendant is not a new one

(see e.g. Zuccelli v. City Construction Co., Inc., 286 App.

Div. 842; Williams v. Rhode Island Corp., 281 App. Div.

618; Gambella v. John A. Johnson & Sons, Inc., 285 App.

Div. 580); that is why impleader statutes such as Rule 14,

F.R.C.P. and See. 193a C.P.A. (N. Y.) give an impleaded

defendant all the rights which a third-party plaintiff has

against plaintiff (Marrone v. John A. Johnson & Sons,

Inc., 283 App. Div. 1114).

In stating that the record and report histories were

offered by TWA and received in evidence only for the

purpose of showing that they made no mention of the

“oust of wind’’, the Cireuit Court entirely disregards the

contents of the record which shows:

TWA offered this hearsay for all purposes and against

everyone (176); it was offered in context with TWA’s

repeated questions concerning the lack of shoes on the

ladder and conditions which might cause a ladder to slip

(93-98, 104-105, 152-155) ; TWA requested charges that

it, TWA, must be liable to plaintiff under Section 202 if

be

ee |

——aaeVO—v—O—eee oe

6

the accident happened due to lack of shoes or another

suitable means to prevent the ladder’s slipping and that

it was entitled to indemnity in such event (282, 284), which

requests were granted (262-263) and charged (303,* 310-

311**). The Trial Court refused to charge, that the doe-

tor’s oral testimony and written histories could only be

used to contradict plaintiff’s testimony or credibility but

that such ‘evidence’? could not be used as affirmative

proof that the ladder slipped, and that it could not be

found that a defect in the ladder or equipment was a proxi-

mate cause of the accident, especially so on the issues in

the impleader actions (276-279, 986-287, 26%).***

When the Cireuit Court states that ‘‘'The issues between

TWA and the impleaded defendants as formulated by the

judge in his charge make no mention of the ‘‘slipping of

the ladder’? within the seven ‘‘carefully framed’’ issues

it ignores the record, for not only did the Trial Court fail

* If the accident resulted from the slipping of the ladder, which

could have been prevented by the use of boots or other safety de-

vices or by the holding or support of the ladder by another, it was

not only a violation for failure to supply such requisites, but a

violation to permit its use without such support or such devices.

** “Five, was the equipment supplied by Allied Cleaning Con-

tractors proper for the job to be done, and was it in proper condi-

tion and properly tended as required ;

“Sixth, was Allied Maintenance or were its agents, (Allied

Cleaning Contractors (third), . . . negligent and if so was their

negligence the proximate cause of plaintiff's injury?

“If your answer is yes, then I charge you that Allied Maintenance

is required to indemnify TWA . . .

“Seventh, was Allied Cleaning Contractors negligent, and, if so,

did its negligence proximately result in the accident complained of?

If so, and if Allied Maintenance must indemnify TWA for the

negligence of Allied Cleaning Contractors, Inc., then Allied Clean-

ing Contractors is required to indemnify Allied Maintenance Cor-

poration. . .”

- - rr Cleaning Contractors, Inc.’s requests to charge 3, 4,

’ Allied Maintenance Corporation’s requests to charge 4, 6.

rs Ay it A LO ML a —

4 a ee ee nt Se ee —_

NE rns. Na ee

7

to charge that the physician’s testimony could not be

used against the impleaded defendants, but the fifth, sixth,

and seventh of the issues mentioned clearly show that the

Trial Court was speaking of the very ladder in question

when he spoke of the ‘‘equipment’’ and ‘‘it’’, and that he

indicated no intention whatsoever to separate his charge

in the main action from that in the impleader actions, for

if he did, he would have defined the terms ‘‘equipment’’,

‘‘proper’’, ‘‘proper condition’, ‘‘properly tended”’ and

‘‘negligence’’ as respects the impleaded defendants. Of

necessity the jury had to refer back to the charge in the

main action for that purpose. The Trial Court so in-

tended (304, 309, 311). The cumulative effect of the fore-

going is such as to make the possibility of confusion too

great to disregard. Johnson v. Erie Railroad Company,

236 F. 2d 352, 356.

Even though the Cireuit Court chose to disregard the

vital question of whether a history report in a medical

record can be admitted against third persons under the

Federal Business Records Act, 98 U.S.C. § 1732, we be-

lieve that this case squarely raises the issue and the mem-

bers of the bench and bar should have it answered so that

they may be guided accordingly in the future.

This need is highlighted by a part of the opinion below

apparently directed at the impleaded defendants who did

not wish to cross-examine the physicians. In it the Circuit

Court states: ‘‘Both physicians whose notes and reports

were introduced were witnesses at the trial and subject

to cross-examination concerning Kozman’s account of his

version of the accident.”’

What the Court below overlooked however is the ele-

mentary principle that cross-examination of hearsay only

elicits more hearsay and that there is a rule against the ad-

mission of hearsay because it deprives one of the right to

cross-examine the source of the statement and not because

the repeater of the statement cannot be cross-examined.

Allied Cleaning Contractors, Inc. went to the source. It

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asked plaintiff himself, while under the solemnity of his

oath, whether the feet of the ladder slipped and plaintiff

answered ‘*No’? (165). If Allied Cleaning can be bound

by the testimony of those who knew of the accident only

by what plaintiff told them outside of the sanctity of a

courtroom, it should be let know so that it may be re-

lieved along with many others of its delusion that patent

hearsay has no place in a court of law.

That part of the Court’s opinion of affirmance which

determines that there was sufficient evidence to submit the

statutory (Labor Law § 202), cause of action to the jury

despite the fact that the means provided to plaintiff for

the performance of his work was approved by the regula-

tions (Industrial Code Rule No. 21), was a clear disregard

of the provisions of Section 202 and Rule 21, and the

holdings of the New York Court of Appeals in Teller v.

Prospect Heights Hospital, 208 N. Y. 456 and Pollard v.

Trivia Building Corp., 291 N. Y. 19.

The peculiar and dangerous circumstances which this

Court sees as the factor which converted the safe means

which conformed to the Code into a device abhorrent to

the Statute was the sudden, unexpected and unanticipated

gust of air which struck plaintiff before he had a chance

to avail himself of the use of an additional safeguard

Allied Cleaning, his employer, provided for him, a man to

hold the ladder.

Two questions thus present theniselves: (A) May a de-

fendant be held liable for violation of Section 202 when he

has provided equipment which complies with the provi-

sions of Rule 21; and (B) can a sudden set of eircum-

stances created by an outside agency instantaneously ren-

der means which conform to the provisions of Rule 21

improper and violative of Section 202, merely because the

window cleaner’s accident would not have happened as

Amare ONS a |

9

it did if he had been using some undefined and ephemeral

other sort of means.*

(A) The Court below in its opinion determined that de-

vices other than those specified in the Rules can neverthe-

less be used in violation of the Rules and thereby comply

with the Statute if they can ‘*be reasonably deemed better

adapted for the protection of the window cleaner.’’ Thus,

in effect, the Circuit Court has substituted a jury for the

Board of Standards and Appeals as the ‘‘authority’’ in

determining what type of means or appliances are proper

for window cleaning work; and in this case the jury was,

according to the opinion, completely competent to deter-

mine that other means were more proper than ladders,

without hearing one word of testimony about the propensi-

ties or capabilities of such other means.

The relegation of this function to the jury clearly dis-

regards the provisions of Section 202 which constrains

the phrases ‘‘safe means’, ‘‘other means’ and ‘‘safe

manner’? to those ‘‘required and approved by the board

of standards and appeals’’ or *‘in conformity. . . . with

the rules of the board of standards and appeals’’.

Rule 21, itself, which as the Trial Court charged (301) i

has the force and effect of law (Labor Law, § 28, subd. 4),

clearly and explicitly commands ‘‘windows shall be cleaned

only by the methods prescribed by these rules’’ (Rule

21-3.1). The trial court so charged (301).

It is thus clear that the function of determining what

is safe and proper was entrusted not to the hands or fancy

of a lay jury, whose understanding of the relative merits

of various types of equipment must by definition be limited.

On the contrary, this responsibility was exclusively dele-

gated to a body of experts who have the capacity, capa-

4

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* See letter to editor of New York Law Journal written by the

attorney for plaintiff and printed in September 20, 1956 issue at

page 4.

Eves :

SR A SERN AEE BEES OR arte A enone ee er ee _ - =

Rs

10

bility and facilities for examining, investigating, testing

and deciding which means and methods are best suited for

use in a particular industry; and upon the knowledge so

acquired arrive at a uniform set of standards to be fol-

lowed by that industry (Labor Law § 27a, 28, 29). “That

was but a permissible delegation of the power to make

appropriate administrative regulations to carry out the

provisions of the statute’ Burris v. American Chicle Co.,

120 F. 2d 218. 222. This delegation to the board of ex-

clusive power tu prescribe means and methods is in ac-

cordance with the statutory objective, the prevention of

accidents. Rufo v. Orlando, 309 N. Y. 345, 350.

In Teller v. Prospect Heights Hospital, 280 N. Y. 456,

459 it is specifically stated that the violation of Section 202

for failure to supply ‘‘safe means’’ can be predicated only

upon a complete failure to supply any of the means spec-

ified in Rule 21.

‘“The statute does not in terms provide that anchors

shall be attached to the windows of the building nor

does it provide any particular device or contrivance

that shall be provided to make it safe for the window

washer to clean the window from the outside. We are

required to look to the Industrial Code . . . to learn

what rules of The Industrial Board are applicable,

what means have been required by the rules of the

Industrial Board to be furnished and what devices

have been or may be approved for the safety of per-

sons cleaning windows.’’ (Emphasis supplied)

As to the excerpt from Pollard v. Trivia, 291 N. Y. 19,

23-24, which the opinion cites as authority for its holding

that methods other than those specified in Rule 21 are

permissible, it must be noted that such statement is dicta;

and even if it were not, it would not apply to the accident

in question since Rule 21-3.1 as it read on the day of the

accident, December 15, 1950, (Rule 21 as am. 1944) stated:

‘‘windows shall be cleaned only by the methods prescribed

PE CPD tt

A aici ee ee ee ee ee eee ee eee

11

by these rules’’, while identically numbered at the time of

the Pollard accident (Rule 21 as am. 1933) read:

‘©All safety devices, that are used for window clean-

ing operations, shall be subject to the approval of

the Industrial Board.

‘‘Exception: Safety devices and methods of cleaning

windows heretofore (before April 1, 1933) in use, other

than those specified herein may be used if approved

by the Industrial Commissioner. ”’

A comparison of the 1933 Rules with the 1944 Rules

indicates that the former Rules were designed to accom-

plish a gradual transition from a varied complexity of

many methods and means used in the window cleaning

business to a select and uniform group of methods and

means without requiring industry to immediately dis-

ecard its outdated but nevertheless costly equipment. The

1944 amendment, in effect, declared that the period of

transition was ended, or would end in the immediate

future, and gave sanction only to those means contained

in the new Rules and no others (See e. &. Rule 21-3.10).

As for the last paragraph of Section 202 being authority

for devices other than those specified by the Rules, as the

opinion below implies; a eareful reading of it discloses

that it merely states that the failure of the Board to

enact Rules supplementing the Legislature’s reference

to anchors in the first paragraph (devices . . . to be

installed on public buildings) and their complement safety

belts (devices to be worn by window cleaners) does not

absolve one of the duty to provide one of the other de-

vices sanctioned by the Rules.

(B) If this Court adheres to the premise that means

specified which comply with the Rules may nevertheless

be violative of the Statute, the Court must next consider

whether the question of adequacy or inadequacy of the

means can be made to hinge upon a sudden and unex-

BONS

SEES GEREN REN CATS trade shee

ROT rR EEE tk ly EAST TERDAL VO PIV YEN IPO Ss BIC BR LM A

pected set of circumstances which places the user of the

otherwise adequate equipment in a position of danger to

which he may or may not have been exposed if he had

been using some other type of equipment.

In excusing the plaintiff’s failure to have someone hold

the ladder, the opinion notes that the circumstance which

precipitated the accident was sudden and unexpected and

arose without warning so that plaintiff was unable to eall

upon a man to hold the ladder.

Since the device being used by plaintiff was adequate it

cannot be said to have become instantaneously inadequate

merely because the accident would not have happened

in the exact manner which it did if plaintiff had been us-

ing some other type of equipment. If plaintiff had been

working with a belt, boatswain’s chair or swinging seaf-

fold, he undoubtedly would not have fallen to the ground

when the unexpected occurred, but he may have been

buffetted and battered against the hangar door. Witness

what happened to Koslowsky (180).

Section 202 does not make those charged with a duty

under it the insurers of a window cleaner’s safety and re-

quire them to protect him against every conceivable pos-

sibility or probability of accident. (See Hawley v. Alaska

Steamship Company, 236 F. 2d 307, 311.) ‘The legis-

lature . . . to guard against the known hazards of the

oceupation, required the employer to safeguard the work-

ers from injury caused by faulty or inadequate equip-

ment.’? Koenig v. Patrick Const. Corp., 298 N. Y. 313,

319.

It is probable or possible that a window cleaner’s lad-

der may be dislodged when a sidewalk cellar or sidewalk

elevator door upon which the ladder rests is suddenly

opened without prior warning, or when a preoccupied

pedestrian walks into it, or in a situation such as present

in the ease at bar, his ladder may be bumped by a TWA

employee or a fellow employee. In these instances it

gid Neepawa) ees tes ne

13

could not be said that an inadequacy in equipment caused

the accident merely because it happened, and that Section

902 had thereby been violated because the accident would

not have happened as it did had another type of equipment

been used. The same applies to the ease at bar. The fact

that ‘“‘but for’? the use of a ladder there would be no acci-

dent of the type in question does not render the use of the

ladder violative of Section 202. (See Storoz v. Interna-

tional Business Machine Corp., 91 N.Y.S. (2d) 367, aff'd.

276 App. Div. 1079.)

The amendment of the Labor Law and Rule 21 by the

peculiar and sudden circumstance doctrine authored by

the opinion, even though it serves to give this plaintiff's

verdict legitimacy, can only serve to create confusion in

place of uniformity in the window cleaning industry, and

throw it back to the period before Laws, Rules and Regu-

lations governing it were enacted.

If the opinion be allowed to stand as precedent, Rule 21

will no longer set the standard, and the uniformity* which

is the keynote of the statute will effectively be eliminated.

The often illiterate window cleaner will be faced with a

different and understandardized type of equipment at

each new job; if he fails to master it and injury results,

he will find little comfort in hearing that it is just as

adequate as the four types of equipment prescribed by

Rule 21 with which he has become familiar. It would

appear that the majorities concern for Kozman will in the

future come back to haunt Kozman’s fellows, for if they

sustain injury while using other than required and ap-

proved equipment it will always be for a jury to speculate

whether the unapproved equipment was just as good or

better than the approved type.

* See e.g., 2nd and 3rd unnumbered paragraph of Section 202

which allows the board to make rules exempting a building from

the provisions of Section 202 and Rule 21, but allow it to grant a

variation from the Section and Rule only where windows can be

and are to be cleaned from the inside. Vooth v. Castroviejo, 206

Misc. 85, affd. 285 App. Div. 867, leave to appeal denied, 308

N. Y. 1052.

GBR GRRE Aaya Ng Seas OES

ANG te He FGETS SOREN Nat er ae eee ern aR eae tee A TI nT RA a ny NE pO tM -

14

It is also to be noted that a violation of either Section

202 or Rule 21 is a violation of the New York Penal Law

(§ 1275). Can it be said in circumstances such as are pres-

ent here that where a lessee or employer has provided the

equipment prescribed by Rule 21 and thereby compiled

with Section 1275 of the Penal Law that he has violated

Section 202 and has thereby violated the same Section [|

1275. If the premises stated by the Court below are correct

this query would have to be answered in the affirmative.

We think it further highlights the absurdity of the opinion

below and its need for review.

If plaintiff’s verdict can rest on the theory that the

sudden blast of air from TWA’s plane without any prior

warning by TWA caused the adequate ladder to become

inadequate and violative of Section 202, it must follow that

TWA’s liability was predicated on its ‘‘active’’ negligence

thereby depriving it of any right of indemnity.

What is ‘‘passive’’ as contrasted to that which is

“‘active’’ negligence is ‘‘the liability which results from

the mere omission of a legal duty (which) is to be dis-

tinguished * * * from that which results from personal

participation in an affirmative act of negligence or from

physical connection with an act of omission by knowledge

of, or acquiescence in, it on the part of the original con-

tractor.’’ Phoenix Bridge Co. v. Creem, 102 App. Div.

354, aff’d. 185 N. Y. 580.

Since the ‘‘negligence’’ found was that which resulted

from the act of TWA in warming up the plane without

warning, thereby causing the ladder to become inadequate

where it had previously been adequate, it must follow that

TWA personally participated in the combination of cir-

cumstances which the Court below calls violative of Section

202. At the very least, TWA must be deemed to have phys-

g ENGR RANT BEE EINE AIA INI IN CA RR EAR ARES ET, Bi . a

15

ical connection with any omission to provide other devices

under the circumstances, since TWA and TWA alone

caused the circumstances to arise and failed to warn of

their imminence. Morris v. Attula, 74 N.Y.S. 2d 386.

It is a glaring inconsistency to hold that the suddenness

of the event excused plaintiff’s failure to avail himself of

the use of a man to hold the ladder, a safe means pro-

vided by his employer, and at the same time determine that

the employer was ‘‘actively’’ negligent and the precipitator

of the incident ‘‘passively’’ negligent. On the contrary,

it would appear that the employer here is the ‘*passive’’

party since its equipment became ‘*inadequate’’ only when

unexpectedly acted upon by an agency solely and exclu-

sively within control of TWA. Storoz v. International

Business Machine Corp., supra.

Burris v. American Chicle Co., 120 F. 2d 218, is not

authority which sanctions the right to indemnity in the

case at bar; it is authority to the contrary.

In that case the sole cause of the accident was the break-

ing of a scaffold rope supplied by the employer, Ashland,

which Ashland directed plaintiff to use after plaintiff had

ealled Ashland’s attention to the rcpe’s dangerous condi-

tion. American Chicle had no connection whatsoever with

the scaffold, scaffold rope, or any circumstance which

caused the accident.

‘Without any active participation in the wrongful

acts or omissions of Ashland, Chicle has become

responsible to the plaintiff for the consequences of

Ashland’s own wrong and has the right to be indemni-

fied by the wrongdoer.”’ (Burris, supra, p. 222.)

Since the circumstance which caused the adequate ladder

to become inadequate was caused solely by TWA, it would

seem that TWA must be at the very least an ‘“active’”’

tort feasor under the Burris case.

PRIM MRI a

aaa A RCL NLELESSIIE EER IOS LN ICEL CEES TOL PERI ELE DEEN LAI OLED

nme

abe Pn ahd

16

IV

That part of the opinion below which holds that a viola-

tion by TWA of Section 202 would not per se make it an

‘‘active’’? tort feasor, who has no possible right to in-

demnity as a matter of law, is contrary to clear intent

of that Section and the precedents laid down by the New

York Court of Appeals in analagous cases.

As was pointed out to the Court below, the only Section

in the New York Labor Law analogous to Section 202

(Protection of persons engaged at window cleaning) is

Section 241 (Protection of employees on building construe-

tion or demolition work including excavation work in con-

nection therewith). Both Sections impose duties for the

protection of persons engaged in specified hazardous em-

ployment; their violation is negligence per se and con-

tributory negligence and assumption of risk are not de-

fenses. The duties imposed by each are absolute and non-

delegable, and it makes no difference whether the person

who does the work is an independent contractor or a work-

man (Sec. 202; Lowenhar v. Commercial Outfitting Corp.,

260 App. Div. 211, aff’d 285 N. Y. 671; Homin v. Cleveland

& Whitehall Corporation, 256 App. Div. 187, revd. on other

grounds 281 N. Y. 484; Pollard v. Trivia Building Corp.,

291 N. Y. 19; Stern v. Great Island Corporation, 250 App.

Div. 115; Osborne v. Salvation Army, 107 F. (2d) 929;

Kingda v. Charles F. Noyes Co., Inc., 260 N. Y. 521; Burris

vy. American Chicle Co., 120 F. (2d) 218: See. 241; Walters

v. Rao Electrical Equipment Corp., 289 N. Y. 57; Seman-

chuck vy. Fifth Avenue 27th St. Corp., 290 N. Y. 412;

Duncan v. Twin Leasing Corp., 283 App. Div. 1080, leave

to appeal denied 307 N. Y. 943; Rufo v. Orlando, 309 N. Y.

345).

In construing Section 241, The New York Court of

Appeals stated in the Semanchuck case at page 421:

‘‘that when the Legislature in Section 241 of the

Labor Law imposed upon both the owner and con-

Na SpA tira nee asthe aA a ar Nae TRA

17

tractor the positive command to provide the protection

deemed appropriate by the Legislature in building and

construction work, the purpose of the command and

the nature of the duty created indicated a legislative

intent that the general standards of ‘‘active’’ and

‘*nassive’’ negligence and the correlative obligations

of wrongdoers based upon such distinctions which

antedated the statute, should not be applicable within

the field covered by the statute, to an omission to obey

the statutory command,’’

It clearly reiterated the foregoing in Rufo v. Orlando,

309 N. Y. 345, 350, stating:

‘‘As we have stated under the rulings in the Walters

and Semanchuck cases, (supra), the Legislature had

made inapplicable, for the purposes of the statute, the

common-law rule of indemnity between passive and

active tort-feasors. Thus any person violating the

statute is per se an active tort-feasor, and hence such

a person cannot have a cause of action in negligence

against a joint tort-feasor. To hold otherwise would

encourage a disregard for the objectives of the

statute. The objectives of the statute are not alone

to provide remedies for laborers but more particu-

larly to prevent accidents causing the injuries. The

sanctions imposed by the statute and cases are neces-

sary to compel a high standard of case by forbidding

any delegation of responsibility and any right of

recovery over against even a joint tort-feasor. The

exceptions to the rule do not apply here, as this Court

specifically held in Wischnie v. Dorsch (296 N. Y. 257,

261).’’

To the same effect as the Semanchuck and Rufo cases

are the Walters and Duncan cases (supra) and Bobbey v.

Turner Const. Co., 308 N. Y. 890.

Although the New York Court of Appeals and Appellate

Divisions have yet to pass upon the question of whether

tis Ye £0) rn ae oN ED

18

a violation of Section 202 is active negligence per se, it

would seem apparent that it must be, since, as previously

indicated, wherever similar issues have arisen under either

Section 202 or 241 they have been interpreted alike and

their prime function is to set a high standard of care to

prevent accidents.

The Court below however does not so intepret Section

202 and rests upon its decision in Burris v. American

Chicle Co., 120 F. (2d) 218, which was decided prior to

the Walters, Semanchuck, Duncan, Bobbey and Rufo cases.

In support of its position, the Court below cites only two

eases which involve the imposition of liability upon a

defendant under the provision of the New York State

Labor Law.

In one, McManus v. Board of Education of the City of

Rochester, 106 N. Y. S. (2d) 51, a Court sitting at Special

Term merely followed the Burris ease (Cf., Chideckel v.

Dime Savings Bank of Williamsburg, 103 N. Y. 8. (2d)

616; McKay v. Pedigree Fabricks, Inc., 74 N. Y. S. (2d)

385; Morris v. Attula, 74 N. Y. S. (2d) 386).

The other Wischnie v. Dorsch, 296 N. Y. 257, interprets a

section of the Labor Law (Sec. 316) which imposes a

liability upon the owner of a tenant factory building

whether he be in or out of possession, to respond in

damages to anyone lawfully on the premises whether it

be a workman or invitee (Jolles v. 3720 Corporation, 163

Mise. 51), due to defects in certain portions of the

premises. However this section is not akin to either

Section 202 or 241. Not only does contributory negligence

remain as a defense to actions predicated upon its pro-

visions (Hente v. Shercoop, 289 N. Y. 140; Dell’Olio v.

Mastronardi, 267 App. Div. 829) but its basic ‘‘legisla-

tive * * * design * * * was to insure the injured plain-

tiff an existing and responsible defendant’? (Wischnie

(supra), p. 262). Section 316 is thus similar to Section 59,

New York State Vehicle and Traffic Law (negligence of

19

operator other than owner attributable to owner) in that

the prime purpose of both is to have a financially re-

sponsible defendant, while the purpose of Sections 202

and 241 is primarily the prevention of accidents in hazard-

ous industries by creating high standards of care.

This intent of the Legislature in enacting Sections 202

and 241 is made apparent by the fact that the classes of

workers in the hazardous industries within their scope by

definition fall within the protection of the New York Work-

men’s Compensation Law (§ 8, Groups 3 and 13).

If it is to be said that the Court below was in any way

consistent in its opinion, such consistency may be found

only in its continuously overlooking the prime purpose of

Section 202, first by emasculating Rule 21 and then water-

ing down the high standard of care imposed by that section.

The illogie of the Court below in differentiating between

Sections 202 and 241 can be seen in its statement that

conditions in the construction and demolition field are rela-

tively statie as compared to the implication therein that

conditions in the window cleaning field are transitory.

The very words construction and demolition connote rapid

change and this connotation is repeatedly borne out by

conditions actually existing at a construction (see, e. g.,

Duncan v. Twin Leasing Corp., 283 App. Div. 1080) or

demolition site (see, e. g., Bobbey v. Turner, 208 N. Y. 890).

It is the transitory nature of the work done by persons

protected by Sections 202 and 241 which makes the active

and affirmative duties of constant vigilance imposed by

them reasonable. To this can be contrasted to the truly

static conditions found in already existing buildings which

may be leased out for a period of up to 99 years and the

consequent passive duty imposed upon an owner as €X-

emplified by Section 316 and Wischnie v. Dorsch, 996 N. Y.

257.

20

Vv

The opinion below is vague on the question of whether

liability over in favor of TWA against Allied Maintenance

was based upon the ‘‘indemnity”’ provisions of their con-

tract or upon the common-law indemnity principles arising

out of ‘passive’? and ‘‘active’’ negligence previously dis-

eussed in Points IIT and IV.

With respect to the contract the trial Court charged:

“That * * * Allied Maintenance Corporation obli-

gated itself by its terms to indemnify * °* 7a

from any negligence attributable to * * * Allied

Maintenance, but not, of course, for any negligence

attributable to * * * TWA alone.’’ (309) (Italics sup-

plied. ) This was excepted to (314).

In addition the trial Court refused to charge that the

issue of whether TWA was entitled to indemnity under the

contract was a question of law to be determined solely by

the Court (278, 262).

It is a well settled rule of law in the State of New York

that contracts will not be construed to indemnify a person

against his own negligence unless such intention is ex-

pressed in unequivocal terms. Thompson-Starrett Co. v.

Otis Elevator Co., 271 N. Y. 36; Dick v. Sunbright Steam

Laundry Corp., 307 N. Y. 422; Broderick v. Cauldwell-

Wingate Co., Inc., 305 N. Y. 872; Walters v. Rao (supra);

Semanchuck v. Fifth Avenue (supra); Bobbey v. Turner

(supra); Miller v. Pennsylvania Railroad Co., 236 F. 2d

That the trial Court erred in failing to dismiss the cause

of action for contractual indemnity as a matter of law is

made apparent by the cited cases in which similar or

stronger contracts have been held to be lacking in the

necessary unequivocal intent to indemnify a defendant for

his own negligence, which negligence is the basis for his

liability to plaintiff in the first instance.

PaMURE EEE ——

Repeat ronan mi ht td

21

Vi

In any event the issues in the impleader actions require

a new trial. The Court below correctly stated that any

recovery by plaintiff on the first cause of action (i. e., the

ereation of a sudden blast of air without warning) would

be a determination of TWA’s ‘‘active”’ negligence thereby

doing away with any possible right to indemnity.

Since there would have been a reversal of the verdict

and judgment against plaintiff on the first cause of action

for error, it must of necessity follow that the question

of whether TWA was ‘‘actively’’ or ‘‘passively’’ negligent 5

was not properly or finally determined as between it and N

the impleaded defendants. For if the first cause of action

were properly submitted to the jury they might have found

against TWA under it and there would as a matter of

law have been no possible right to indemnity. Therefore,

at least as to TWA and the impleaded defendants there

must be a new trial. Banks v. Central Hudson Gas &

Electric Corp., 224 F. 2d 631, cert. den. Central Hudson

Gas & Elec. Corp. v. Banks, 350 U. S. 904.

Although plaintiff is content with an affirmance of his

judgment no matter on which ground it is based, it is un-

conscionable to let the affirmance of the entire judgment

stand. This is another instance of the Cireuit Court’s

complete disregard of the rights of the impleaded defend-

ants and its unconcern about them. The axiom that

‘‘justice is blind’’ refers to its impartiality. In the case

at bar it would seem that such statement can be taken

literally for it appears that as the Cireuit Court read down

the caption of this case its insight into injustices dimmed

further and further until it could or would see none when

it reached the fourth-party defendant.

CONCLUSION

For the reasons set forth above, it is respectfully

submitted that this petition for a writ of certiorari

should be granted.

yrs #2

:

Bruce A. Petrisoun, JR.,

—— Counsel for Petitioner.

eS ie RE PD VAS EY hi Pee Ser i er re ew : ‘ 6 ade te TS a ee pore

“

22

Appendix “A”

Ciark, Chief Judge:

These are appeals by all four parties to an action by

plaintiff Kozman for damages for personal injuries result-

ing from his fall from a ladder while engaged in cleaning

the windows of a door of a TWA hangar located at La-

Guardia Airport in New York City. Originally Kozman, a

window cleaner employed by Allied Cleaning Contractors,

Ine., commenced an action in the Supreme Court of New

York against TWA, which maintained, managed, operated,

and controlled the hangar in question pursuant to a lease,

originally from the owner of the airport, the City of New

York, later assigned to the Port of New York Authority.

Kozman alleged that TWA negligently, suddenly, and with-

out warning revved up all four engines of one of its air-

planes with such force as to cause the air current and sound

blast engendered by this action ‘‘suddenly and violently

[to] blow, push and propel the plaintiff and the top of the

ladder on which plaintiff was standing to one side and

thereafter [to] cause the top of the ladder to slip away

from the point at which it rested against the said door and

thereafter to dislodge the plaintiff and cause him to be

hurled suddenly and violently to the ground below.’’

After removal of the action to the United States Dis-

trict Court because of the diverse citizenship of the parties,

TWA moved to implead Allied Maintenance Corporation,

its window cleaning contractor, as a third-party defendant

on the basis of the indemnity provisions of the contract

between these two parties.. TWA alleged that Allied Main-

2“Tt is understood that we [Allied Maintenance Corp.] will be

allowed the use of your telescope scaffold which is located on these

premises, which we agree to use at our own risk.

“We will supply all necessary supplies, labor and equipment neces-

sary to perform this service in a thorough and workmanlike manner.

(Footnote continued on following page)

OPEN aie Fh TS

23

Appendix ‘‘A”’

tenance had violated N. Y. Labor Law § 202 by allowing

Kozman to use an ordinary window cleaner’s ladder to do

his work, instead of making him use a telescoping scaffold

which TWA had supplied and provided in accordance with

the contract.

Thereafter Kozman served an amended complaint in

which he repeated the allegations of his original complaint

for common law negligence and added a second ‘‘eause of

action’? wherein he repeated his first ‘*cause of action’’ and

further alleged that TWA had violated §§ 28, 29, 30, 202,

and 240 of the N. Y. Labor Law, and the Rules of the Board

of Standards and Appeals promulgated pursuant to those

sections, by failing to provide him with any safety device

of any kind or nature within the purview of those sections.

TWA. denied the material allegations of Kozman’s com-

plaint and served an amended third-party complaint which

was identical with its original third-party complaint. Allied

Maintenance, in addition to denying the material allegations

of both Kozman’s and TWA’s amended complaints, served

a fourth-party complaint upon Allied Cleaning seeking in-

demnity and alleging that Allied Maintenance sublet the

window cleaning contract to Allied Cleaning, for which

plaintiff was working.

After trial before Judge Noonan and a jury both ‘‘eauses

of action’? were submitted for consideration of the jury,

which returned a verdict for TWA on the first ‘‘cause of

action,’’ and for Kozman on the second. In turn the jury

granted recovery over by TWA against Allied Maintenance,

(Footnote continued from preceding page)

** *

“We agree to indemnify and hold you harmless from and against

any and all claims, demands, charges, liabilities or damage by reason

of claims for injury to, or death of persons and loss of or damage

to property caused by or arising from the negligence of ourselves,

our agents, servants or employees during the course of the per-

formance of this agreement.”

"ier. ™

POY IM RED BEST

‘

Se eT aN A> ' ee ee — rs me ee en eee ee 7

24

Appendix ‘*A’’

and by Allied Maintenance against Allied Cleaning—all in

the amount of $17,000 and costs. This appeal from the re-

sulting judgment followed.

The Facts

At 10:30-11:00 a. m. on December 15, 1950, Kozman, an

experienced professional window cleaner, was cleaning the

lower window panes of TWA’s hangar door. He was stand-

ing about 10 feet up on an ordinary three-section window

cleaner’s ladder having an over-all extended length of about

18 feet. The ladder was not equipped with rubber ‘‘boots”’

or ‘‘shoes’’ on its lower extremities. Nor were the windows

equipped with anchors to which might be attached safety

belts for the cleaners, though the use of such safety devices

appears not to have been practicable here.

Adjacent to the hangar doors and running the entire

length of the hangar was a strip of level concrete or hard

surfacing 4 to 5 feet wide, beyond which the surface began

to slant downward to some extent. Prior to mounting the

ladder Kozman had placed its feet on the concrete strip

about 3 to 31% feet away from the hangar doors. No one

was holding the ladder on the day of the accident, although

Kozman testified that it was customary to have a co-worker

hold the bottom of the ladder if conditions were such that

it might slip. The day before, when he was working on an

extension ladder 40 to 44 feet in length, he had had another

worker holding the bottom of the ladder.

A Weather Bureau Report introduced into evidence

showed that some snow had been falling during the 2%

hours preceding the accident. At 10:40 a. m. ocasional

snowflakes were falling, possibly accompanied by light rain.

The day before the accident there was testimony that

TWA employees had moved aircraft in and out of its

hangars by jeep and had warmed up engines near the

25

Appendia ‘‘A’’

hangars, but had not created too much ‘‘ power to the wind.”’

Kozman could observe and feel the extent and strength of

the draft thus created by the manner in which it blew

against the hangar doors and by the ‘‘shaking and rattling”’

of the doors. There was some evidence that on the preced-

ing day and on other occasions TWA employees warned

the window cleaners when aircraft were to be warmed up

in the vicinity, but most of this proffered evidence of a

prior custom of warning was excluded by the trial judge.

The accident occurred while Kozman was cleaning a win-

dow with his right hand and was holding the side of the

ladder with his left. His pail of water was suspended from

a rung of the ladder. He testified that suddenly and without

warning to him “* * * a big noise came out from the four

motors of the TWA airplane, and all of a sudden a great

wind like a hurricane hit me, and the doors was shaking

and rattling. The top of the ladder blew off on the right

side glass and kept on bouncing down. I grabbed my hands

around the ladder and down I went.”’ And a TWA main-

tenance foreman testified that at about the time of the fall

all four engines of a TWA aircraft were being warmed up

near the hangars prior to its departure for the marine ter-

minal.

The evidence is clear that the top of the ladder slipped.

Whether the bottom also slipped is not at all clear, although

at one point Kozman testified categorically that the bottom

did not slip. Still the sequence of @sestions and answers

in which this denial appears, read as a whole, seems to

leave the issue still in doubt; and at any rate Kozman, who

was standing well up on the ladder, could hardly have

known what happened to its feet.

26

Appendix **A”’

The First **Cause of Action”’

Although a new trial is not necessary in view of the

plaintiff’s ultimate recovery, we think the trial court erred

in two regards with respect to the first ‘cause of action’’

against TWA for suddenly and negligently reviving up its

engines. First it was error to exclude evidence of a custom

or habit on the part of ‘i'WA’s employees to warn the win-

dow washers at the hangar of the proposed operation.

This evidence was not offered to show a habit or custom of

negligence, but to show a custom of care, the breach of

which on the day of the accident constituted negligence.

See Mahoney v. New York Central R.R., 2 Cir., June 29,

1956; Renaldi v. New York, New Haven & Hartford R. Co.,

2 Cir., 230 F. 2d 841; Cereste v. New York, New Haven &

Hartford R. Co., 2 Cir., 231 F. 2d 50, certiorari denied New

York, New Haven & Hartford R. Co. v. Cereste, 76 S. Ct.

848; Eaton v. Bass, 6 Cir., 214 F. 2d 896. Thus it was ad-

missible as relevant to the standard of care which a rea-

sonable and prudent man would exercise under the circum-

stances. In addition it was clearly relevant to show absence

of contributory negligence and probably of assumption of

risk, since plaintiff’s own standard of care would be af-

fected by reasonable reliance on a customary warning by

defendant. See also Davis v. Central Vermont Ry., 2 Cir.,

227 F. 2d 948.

Further, the charge on assumption of the risk was er-

roneous and prejudicial. The court charged in part as

follows:

‘*Should you find that the job then being done con-

tained certain hazards of which the plaintiff knew or

should have known in the exercise of reasonable care

when he undertook to do the job, and that he never-

theless assumed the risk of those hazards and was

DEAR Het a |

| we

27

,

Appendix ‘‘ A’

thereby injured, then you should find for the defendant

TWA against the plaintiff on the latter’s cause of

action.

“Tf, however, you should find that the plaintiff was

not himself negligent and did not assume the risk of

what befell him and at the same time you find that the

defendant TWA was in fact negligent and that this

negligence was the proximate cause of the plaintiff’s

injuries, then you should return a verdict in favor of

the plaintiff and against the defendant TWA.”’

This general and somewhat sweeping language was not

justified by the circumstances of this case. In the leading

New York ease of Zurich General Accident € Liability Ins.

Co. v. Childs Co., 253 N. Y. 324, 327, 328, 171 N. KE. 391,

where, as here, plaintiff was not an employee of the alleged

tort-feasor, Chief Judge Cardozo made a comprehensive

statement of the law of assumption of risk, during the

course of which he said: ‘*The question, therefore, is

whether [plaintiff], leaping on the elevator, was so in-

formed of the dangers inhering in the leap as to be placed

in the position of one willing to encounter them.”’

The evidence here (which would have been substantially

buttressed by the erroneously-excluded testimony of the

eustom to warn) was to the effect that Kozman was not

informed of the warming up of the TWA plane. If on the

basis of past experience he could expect to be warned, he

ean hardly be held to have assumed the risk of a sudden

and unexpected warm-up. Whatever charge on assumption

of risk is appropriate here must be clearly limited by the

principles of the Zurich case, supra, and by reference to

the admissible evidence on past custom of warning. See

Povanda v. Powers, 152 Mise. 75, 272 N.Y.S. 619. But

as noted below, our affirmance of plaintiff’s judgment re-

quires no further or separate action on this issue.

4

:

Fé

5

*

&

ee

;

RA

aa

28

Appendix ‘‘A’’

The Second ‘‘Cause of Action’’

The jury found for Kozman against TWA on the basis

of TWA’s alleged violation of N. Y. Labor Law § 202° and

2 Sec. 202 of N. Y. Labor Law (30 McKin. Consol. Laws of

N. Y., § 202), commonly called the “Window Cleaner’s Code,” on

December 15, 1950, read as follows:

Ҥ 202. Protection of persons engaged at window cleaning

“The owner, lessee, agent and manager of every public build-

ing where the windows are cleaned from the outside shall in-

stall and maintain anchors on all windows of such building or

provide other safe means for the cleaning of the windows of

such building as may be required and approved by the board of

standards and appeals. The owner, lessee, agent, manager or

superintendent of any such public building shall not require,

permit, suffer or allow any window in such building to be

cleaned unless such anchors or other means are provided to

enable such work to be done in a safe manner in conformity

with the requirements of this chapter and the rules of the board

of standards and appeals. A person engaged at cleaning

windows of a public building shall use the safety devices pro-

vided for his protection. Every employer or contractor shall

require his employees while engaged in cleaning any window

of a public building, to use the equipment and safety devices

required by this chapter and rules of the board of standards

and appeals.

“The provisions of this section shall not apply to (1) multi-

ple dwellings six stories or less in height located anywhere in

this state; nor to (2) any building three stories or less in height

in cities, towns or villages having a population of less than

forty thousand; nor to (3) the window or windows of any

building which may be exempted under any rule adopted by

the board of standards and appeals.

“The board of standards and appeals may grant variations

pursuant to the provisions of section thirty of this chapter

exempting the windows of any building from the provisions of

this section where such windows can be and are to be cleaned

from the inside.

“The board of standards and appeals may make rules sup-

plemental to this section by designating safety devices of an

approved type and strength to be installed on public buildings

or to be worn by window cleaners or both, but the absence of

any such rule shall not relieve any person from the responsi-

bility placed on him by this section.”

29

Appendix ‘‘A”’

Industrial Code Rule 21° promulgated thereunder by the

Board of Standards and Appeals, and further found lia-

bility over against Allied Maintenance and Allied Clean-

ing respectively. The two latter defendants argue that,

since the accident happened upon premises owned or

leased by the Port of New York Authority, the N. Y.

Labor Law has no application. But this case does not

3 Industrial Code Rule 21 implements § 202 by designating the

types of safety devices approved by it. In defining the scope and

application of Code Rule 21, the Board stated in Rule 21-2.2.6:

“Every window the lowest part of the frame of which is six feet

or more above ground shall be provided with anchors and shall be

cleaned by means of such anchors and safety belts except where

other safe means are permitted by these rules.”

The types of “approved” safety devices (other than anchors )

then enumerated in Code Rule 21 were as follows:

I. “21-6. Ladders

“21-6.1. When to be used. Ladders shall be used for

window cleaning operations only where the windows cannot

otherwise be cleaned safely and practically by means of anchors

and safety belts.

“21-62. General use requirements.

“21-6.2.1. Means of preventing slipping. All ladders used in

connection with cleaning operations shall be provided with

suitable means to prevent slipping.

“2162.2. Person to hold ladder. Ladders raiore than 18

feet in length used on a public street, and elsewhere more than

24 feet in length, used in connection with window cleaning

operations, shall have a person stationed at all times at the

foot of the ladder to hold it in place while the window cleaner

is on the ladder. Such person shall face the ladder and hold it

with both hands.”

II. “21-7. Swinging and built up scaffolds.

“21-7.1. When to be used. Scaffolds shall be used for

window cleaning operations only where the windows of a public

building cannot otherwise be cleaned safely and practicably by

means of anchors and safety belts.” (The succeeding pro-

visions of Code Rule 21 [Rule 21-7.2.1 through 21-7.3.2]

define the construction and _ specifications of “swinging scaf-

folds”; 21-7.4 deals with “Built up light duty scaffolds,” their

types and specifications. )

Ill. “21-8. Boatswains chairs.”

= net ce einieetetiais a!

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30

Appendix **A”’

involve an attempt directly or indirectly to regulate the

Port of New York Authority. Cf. Port of New York Au-

thority v. J. E. Linde Paper Co., 205 Mise. 110, 127 N. Y. 8.

2d 155; Port of New York Authority v. Weehawken Tp., 27

N. J. Supp. 328, 99 A. 2d 377; Rao v. Port of New York

Authority, 2 Cir., 222 F. 2d 362, affirming D. C. E. D.N. Y.,

122 F. Supp. 595. Rather the question here is whether the

states of New York and New Jersey in creating the Port

Authority intended that, as between third persons, none of

whom can contend it was duly authorized by the Port Au-

thority to employ another standard, a civil remedy other-

wise available for violating a statutory standard would

be lost solely because the operative facts transpired at a

Port Authority airport. In James Stewart & Co. v. Sad-

rakula, 309 U. S. 94, 127 A. L. R. 821, the Supreme Court,

affirming the decision of the New York courts, held that an

employee of a building contractor engaged in the construc-

tion of a post office building on United States property

might recover in tort from the contractor for injuries at-

tributable to the contractor’s failure to observe the stand-

ards set forth in a provision of the N. Y. Labor Law. Al-

though the legal relationship of the State of New York to

the property where the injury occurred in the James Stew-

art & Co. case differed in some particulars from that exist-

ing here, we think the considerations of policy and reason-

ing there to be closely applicable here and the same result

clearly indicated. It may be noted that the Port of New

York Authority, in its brief submitted amicus curiae in this

ease, supports this conclusion.

A more difficult problem is the question whether plaintiff

adduced sufficient evidence to support his favorable verdict

*The statutes establishing the Port Authority’s control of its

air tertninals are N. Y. Laws 1947, Ch. 802, § 10; N. J. Laws 1947,

Ch. 43, $10. These, however, contain nothing indicating an intent

to deprive Kozman of his rights herein asserted under the N. Y.

Labor Law.

31

Appendix *‘A”’

based on the alleged violation of N. Y. Labor Law § 202.

TWA’s liability under this statute is predicated upon its

failure to require that adequate equipment be provided to

Kozman to permit him to clean the windows safely under

the existing circumstances. The only equipment furnished

to Kozman was a ladder without shoes. It is argued that,

since under the regulation promulgated pursuant to the

statute a ladder was proper equipment, there was no vi0-

lation of the statute. .

Allied Maintenance and Allied Cleaning contend that

there was no evidence that the ladder slipped at the bot-

tom, and hence that the absence of shoes was unimportant.

We may assume, arguendo, that the ladder did not slip

at the bottom (thereby making irrelevant the absence of

shoes), although, as pointed out above in the statemefht

of the facts, the evidence on this point taken in context

was not conclusive. Still, although the ladder may not

have been defective, it did fall when exposed to the force

of the propeller wash. The jury could have found that the

ladder, although in good condition, was inadequate, in the

circumstances here present, to provide a safe method for

the cleaning of the hangar windows.

The mere fact that the use of a ladder was approved

by the regulations should not be taken to establish that,

in peculiar circumstances tending to make the use of a

ladder unsafe to clean the windows, the party responsible

for the employees’ safety will be absolved from all liability

simply because it is utilized. In Pollard v. Trivia Building

Corp., 291 N. Y. 19, 23-24, 50 N. BE. 2d 287, the New York

Court of Appeals said: “* * * nor does the fact that

the Industrial Code specifies a particular device exclude

other devices that might in a particular case be reasonably

deemed better adapted for the protection of the window

cleaner.’’ Moreover, § 202 provides: ‘‘The board of stand-

ards and appeals may make rules supplemental to this

section by designating safety devices of an approved type

EE ON ANCA ic a IS

LI OBE GIF SIV MONIES al

=i

32

Appendix ‘* A”’

and strength to be installed on public buildings or to be

worn by window cleaners or both, but the absence of any

rule shall not relieve any person from the responsibility

placed on him by this section.’’ To construe the statute

narrowly to allow the use of a ladder in circumstances

where its use would be dangerous would be contrary to

the New York cases which say that the statute should be

liberally construed to protect the workers. See Koenig v.

Patrick Const. Corp., 298 N. Y. 318, 319, 83 N. E. 2d 133;

Red Hook Cold Storage Co. v. Dept. of Labor, 295 N. Y. 1,

64 N. E. 2d 265; Osborne v. Salvation Army, 2 Cir., 107 F.

2d 929.

Some of the defendants argue that, since there were men

on hand whom Kozman could have called to hold the

ladder, safe and adequate equipment was provided for the

job. But Kozman had no warning of the sudden gust of

air, and he presumably believed that he did not need

anyone to hold the ladder while there was no wind and

he was only 10 feet from the ground. It is true that on

the previous day he and others had held the ladders for

men who were washing windows. But the ladders used on

that day were ‘‘extension’’ ladders, and the work done

was higher up. Also, there had then been warnings before

the engines were started, so that there would have been

time to call men to hold the ladders and prevent their

being blown over.

Since, therefore, there was sufficient evidence for the

jury to find that TWA had failed in its duty to see that

adequate equipment was provided to Kozman to enable

him to do his job safely, it would have been error to re-

move the claim based on TWA’s statutory default from

the jury’s consideration. The jury’s determination of this

claim must therefore stand. See Swafford v. Atlantic

Coast Line R. Co., 350 U. 8. 807.

The jury further found for TWA against Allied Main-

tenance and for the latter against Allied Cleaning. TWA

33

Appendix ** A”’

ean recover over against Allied Maintenance and the lat-

ter over against Allied Cleaning only if Kozman succeeds

on his second ‘‘eause of action’? arising from the alleged

violation of the N. Y. Labor Law. For his first ‘*cause”’

based on TWA’s negligence in creating a blast of air

without warning was certainly ‘‘active,”’ thus barring in-

demnity over under the authorities. See Thomas-Starrett

Co. v. Otis Elevator Co., 271 N. Y. 36, 41, 2 N. BE. 2d 353

McFall v. Compagnie Maritime Belge (Lloyd Royal) 8.A.,

304 N. Y. 314, 328-329, 107 N. E. 2d 468.

Allied Maintenance and Allied Cleaning argue that there

can be no recovery over against them even on the claim

based on the N. Y. Labor Law. In part they contend

that there is no competent evidence establishing that the

ladder slipped, and hence the sole cause of the accident

was the gust of wind from the plane engines. But whether

the ladder slipped at the bottom or was blown over at

the top, the jury was justified in finding that inadequate

provision was made to prevent the ladder from falling

or that a ladder was inadequate to do the job under these

circumstances. If TWA was thus guilty of failure to

conform to the standards set by the N. Y. Labor Law, the

jury might reasonably find, as it did, that it was entitled

to indemnity from Allied Maintenance and Allied Mainte-

nance from Allied Cleaning by an appropriate determi-

nation of the seven issues among these three defendants

as carefully framed by the trial judge. True, as a ques-

tion of law the problem presented is whether TWA by its

default under the Labor Law was ‘‘actively”’ negligent

and, therefore, not entitled to indemnity. But the mere

fact that TWA violated the Law is insufficient to render

it guilty of “active’’ negligence. Burris v. American Chicle

Co., 2 Cir., 120 F. 2d 218, 222.

Allied Maintenance and Allied Cleaning argue that the

Burris ease, supra, is no longer controlling and that sub-

Ly

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Prams cams wo oes 4s Pas s tad ’ . PMNS OREN ONE! Se ee er

34

Appendix ‘‘A”’

sequent decisions of the New York Court of Appeals, al-

though not directly in point, show a strong tendency to

deny recovery over in cases involving analogous viola-

tions of the N. Y. Labor Law. Specifically, our attention

is directed to cases arising under § 241 of the N. Y. Labor

Law dealing with the safeguarding of persons engaged

in building construction and demolition work. See Walters

v. Rao Electrical Equipment Co., 289 N. Y. 57, 48 N. E.

2d 810, 143 A. L. R. 308; Semanchuck v. Fifth Ave. & 37th

St. Corp., 290 N. Y. 412, 49 N. E. 2d 507; Duncan v. Twin

Leasing Corp., 283 App. Div. 1080, 131 N. Y. S. 2d 423,

leave to appeal denied 307 N. Y. 940, 122 N. E. 2d 336.

But the Semanchuck and similar cases involving that

statute merely hold that the section imposes a ‘‘positive”’

duty upon the owner and contractor alike and that it is

an active, primary duty, the existence of which precluded

indemnity in the cases cited. This is not unreasonable, con:

sidering the relatively static construction conditions cov-

ered by that section, for which an owner or general con-

tractor might be expected to assume active responsibility.

But the same considerations do not apply to the respective

responsibilities imposed by § 202 on a lessee and his con-

tractor for window cleaning.

The New York courts have clearly and explicitly limited

the principle of indemnity thus stated to cases arising

under § 241. Wischnie v. Dorsch, 296 N. Y. 257, 72 N. E. 2d

700; Schwartz v. Merola Bros. Const. Corp., 290 ! -

145, 48 N. E. 2d 299; McFall v. Compagnie Maritime Belge

(Lloyd. Royal) S.A., supra, 304 N. Y. 314, 107 N. E. 2d

463; Meltzer v. Temple Estates, 203 Mise. 602, 116 N. Y. S.

2d 546; McManus v. Board of Ed. of City of Rochester,

Sup., 106 N. Y. S. 2d 51; Sid v. Stokes Associates, Inc.,

Sup., 145 N. Y. S. 2d 368; Lobello v. City of New Y ork, 268

App. Div. 880, 51 N. Y. S. 2d 7, appeal denied 268 App. Div.

999, 52 N. Y. S. 2d 790, affirmed 294 N. Y. 816, 62 N. E. 2d

Tse, caapepemenhaleaeehtaemenba an aeenaamaenenaenmianemtetie : hia ron rin RON . e ws oe

35

Appendix ‘*A”’

243; Lundberg v. Prudential S. S. Corp., D. C. S. D. N. Y.,

102 F. Supp. 115. Hence we think the authority of Burris v.

American Chicle Co., supra, 2 Cir., 120 F. 2d 218, is un-

impaired and controlling here, and permits recovery over

against the window cleaning contractors. See also Banks

v. Central Hudson Gas & Elec. Corp., 2 Cir., 224 F. 2d 631,

certiorari denied Central Hudson Gas & Elec. Corp. v.

Banks, 350 U.S. 904.

Rulings on Evidence

Allied Maintenance and Allied Cleaning object to the ad-

mission in evidence of certain notes and reports to the

Workmen’s Compensation Board of the physicians who

treated Kozman. This evidence, which was based on Koz-

man’s statements to the physicians, was to the effect that

the ladder slipped; and there was no mention of its being

blown over by strong gusts of wind.’ TWA offered this

evidence to rebut Kozman’s claim that his fall resulted

from a sudden blast of propeller wash. Kozman himself

obtained the admissicn in evidence of a letter dated March

5, 1951, from the Deputy Medical Superintendent of Queens

General Hospital to one of the physicians, which states in

part: ‘*The above named individual [Kozman] was ad-

mitted to this hospital 12/15/50 with history of having

fallen from a ladder while at work.’’ Both physicians whose

notes and reports were introduced were witnesses at the

trial and subject to cross-examination concerning Kozman’s

account of his version of the accident.

’ See typically the report of Dr. Wahl: “History: While

cleaning windows at LaGuardia Airport, the patient slipped with

the ladder, and fell down on both arms. He was unconscious, and

was taken to Queens General Hospital by ambulance.” And the

report of Dr. Benedig: “While cleaning windows, the ladder

slipped and I fell with the ladder and broke my both arms, nose,

jawbone, and a number of my teeth.”

Oe

PP 2 LM EOD RES

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LAA ne UE A RM aN NN ST A I a RO A NRE NEE MN Re a a

36

Appendix ‘*A”’

Allied Maintenance and Allied Cleaning concede that,

while these notes, reports, and records may be admissible

as between Kozman and TWA on the issue as to the ex-

istence of a ‘‘gust of wind,’’ they were improperly used

against the two impleaded defendants on the Labor Law

claim to show that the ladder slipped. Specifically they

suggest ‘‘that the Trial Court’s acceptance into evidence

of the history in the hospital record and the notes and re-

ports of the physicians were the basis of his subsequently

charging the jury that it could find that the ladder slipped

without limiting such charge to the main action alone.”’

But as we have pointed out above, neither TWA’s nor

the impleaded defendant’s liability on the Labor Law claim

turns exclusively on the question whether the ladder slipped

at the bottom. Further, the issues between TWA and the

impleaded defendants as formulated by the judge in his

charge make no mention of the slipping of the ladder. In

any event, it is clear that the medical reports and records,

in so far as they bear upon the account of the happening

of the accident, were of importance only upon the issue of

TWA?’s negligence in warming up the engines. Whatever

implication they may have for the question whether the

ladder in fact slipped at the bottom is obscure and too

trivial to be prejudicial to the impleaded defendants. Hence

we need not consider the applicability of the Federal

Business Records Act, 28 U. S. C. § 1732, and the distinction

as drawn in, e.g., MeCormick on Evidence 611 (1954) be-

tween use of the doctors’ records as case history relevant

to diagnosis and treatment and their use—against someone

other than the patient—as evidence of the truth of the facts

stated. Compare Terrasi v. South Atlantic Lines, 2 Cir.,

296 F. 2d 823, certiorari denied 350 U. S. 988, and cases

cited.

: BERT PR RR RN SPEND LRN AR AE Mt . .

. vs NDT ARON ARE Me MRT brani Re COUN et SS aval che ome |

rs

37

Appendix **A”’

| CoNnCLUSION

Since we affirm Kozman’s recovery and TWA’s and

Allied Maintenance’s recovery over of indemnity on the é

claim of violation of the Labor Law, plaintiff is not en- d

titled to a new trial on his additional theory of common

law negligence. Though attempts to recover on the two

theories be denominated two different ‘‘causes of action,’’

they each involve the same accident, the same injuries, and

the same damages, and are in effect merely two bases for

the same claim. Since he is actually recovering his dam-

ages on this claim, he is not injured by any failure to adopt

his legal views in full detail. Nor in fact does he ask for

a new trial in the event of our affirmance of the verdict

and judgment awarded him.

Affirmed.

Rey EL cd A ae

Hivcxs, Circuit Judge (dissenting in part) :

I agree with the holdings of the majority of the court

as to error inherent in the verdict for the defendant TWA

on the First Cause of Action. I think, however, that there

was no evidence to support the plaintiff’s verdict on the

Second Cause of Action.

This second count was based solely-on an alleged breach

of statutory duty imposed by N. Y. Labor Law § 202 which

is implemented by Industrial Code Rule 21. Since con-

cededly it was not feasible to install anchors on the hangar

doors, under § 202 it was TWA’s duty to ‘‘provide other

safe means for the cleaning of the windows ** * as may

be required and approved by the Board of Standards and

Appeals.”’ .

In addition to anchors and safety-belts, the “other safe

means * * * required and approved’? were (1) Ladders

38

Appendix ‘*A”’

equipped with ‘‘suitable means to prevent slipping,’’ with

a helper to hold in place ‘‘ladders more than 18 feet in

length on a public street, and elsewhere more than 24 feet

in length’’ (Rule 21-6.1 and 6.2); (2) Seaffold (Rule 21-7) ;

and (3) Boatswains chairs (Rule 21-8). Plainly the statute,

§ 202, does not require that where, as here, anchors are

concededly impracticable, the owner must for each window

provide all three ‘‘safe means’: the provision of one of the

three approved means complies with the statute. Teller v.

Prospect Heights Hospital, 280 N. Y. 456, 21 N. EB. 2d 504.

The ladder involved in this case was not over 18 feet

and was not being used on a public street. Thus no helper

to hold it in place was required by Rule 21-6.2. Even if—

as there was some evidence to show—the ladder was not

equipped with rubber ‘‘boots”’ to prevent slipping, that fact

could not possibly have been the proximate cause of the

accident. The plaintiff’s own testimony required a finding

to the contrary. On the trial he testified as follows: Q. ‘* Did

the ladder slip from the bottom? Did the feet slip?’’ A. ‘‘It

slipped to the right side. I was blown off.’? Q. “My ques-

tion was, sir, did the feet of the ladder slip?’’ A. ‘‘No.’’ It

follows that there was no basis for a plaintiff’s verdict

on the second count.

My brothers quote Pollard v. Trivia Building Corp., 219

N. Y. 19, 50 N. E. 2d 287, for its statement that ‘‘the fact

that the Industrial Code specifies a particular device [does

not] exclude other devices that might in a particular case

be reasonably deemed better adapted for the protection

of the window cleaner.’’ I confess that I do not understand

just what was meant by the statement or why it was in-

cluded in an opinion in a case in which concededly no

safety device whatever had been provided. But it is abun-

dantly clear, especially in the light of Teller v. Prospect

Hospiial, supra, cited thereto, that the passage does not

mean that an owner who provides a safe means approved

SPAR RNIN Ur AN RT OR ASPET EOE mH NN IUD He OBRINT SSR ATH EI RS aD A tintin ten pra n PA a Seca ESSN NEIAN Soot Pe

39

Appendix ‘‘A”’

by the Code may nonetheless be held to have violated the

Statute.

Nor can I understand the relevance of the final paragraph -

of § 202 of the Labor Law which my brothers say **should

be liberally construed to protect the workers.” To me it

seems wholly obvious that by that paragraph it was meant :

only that an owner should not be absolved from providing

a safe means sanctioned by the Code merely because an-

other means, which he may have provided and which may é

have been adequate to satisfy the objective of the Statute, cf

was not included as an approved means in the Code. My =

brothers seem to think their holding permissible under a S

liberal constructioa of the statute. I think they can reach °

their result only by arrogating to themselves, or according *

to the jury, power to add some Rule to the Code. And even é

so, they give no definition whatever to the synthetic Rule :

which they seem to envisage. Certainly the cases which

they cite do not justify statutory construction of such vague

and sweeping amplitude.

I would reverse the judgment for the plaintiff on the

second count and the judgments on the third- and fourth-

party complaints (which are dependent on the plaintiff’s

second count) and remand with a direction to dismiss. On

the first count, I would reverse for the errors noted in the

majority opinion and remand for new trial.

ORE a AT ce

40

Appendix ‘‘A’’

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

Before Cuark, Chief Judge, and Frank and Hrncks,

On Petition for Rehearing of Allied Cleaning Con-

tractors, Ine.

Raymond C. Green, New York City (Bernard

Katzen, New York City, on the brief), for

Allied Cleaning Contractors, Inc., fourth-

party defendant-appellant.

Per Curiam.

Petition for rehearing denied.

C.E.C.

J.N.F.

U.S.C.JJ.

I dissent.

C.C.H

U.S.C.J.

Filed: August 27, 1956

Cireuit Judges.

eae

41

Appendix “B”

Federal Business Records Act, 28 U.S.C. § 1732

§ 1732. Record made in regular course of business ;

photographie copies

(a) In any court of the United States and in any court

established by Act of Congress, any writing or record,

whether in the form of an entry in a book or otherwise,

made as a memorandum or record of any act, transaction,

occurrence, or event, shall be admissible as evidence of

such act, transaction, occurrence, or event, if made in regu-

lar course of any business, and if it was the regular course

of such business to make such memorandum or record at

the time of such act, transaction, occurrence, or event or

within a reasonable time thereafter.

All other cireumstances of the making of such writing or

record, including lack of personal knowledge by the entrant

or maker, may be shown to affect its weight, but such cir-

cumstances shall not affect its admissibility.

The term ‘‘business,’’ as used in this section, includes

business, profession, occupation, and calling of every kind.

(b) If any business, institution, member of a profes-

sion or calling, or any department or agency of govern-

ment, in the regular course of business or activity has kept

or recorded any memorandum, writing, entry, print, rep-

resentation or combination thereof, of any act, transaction,

occurrence, or event, and in the regular course of business

has caused any or all of the same to be recorded, copied,

or reproduced by any photographic, photostatic, microfilm,

miero-eard, miniature photographie, or other process which

accurately reproduces or forms a durable medium for so

reproducing the original, the original may be destroyed

in the regular course of business unless held in a custodial

or fiduciary capacity or unless its preservation is required

by law. Such reproduction, when satisfactorily identified,

is as admissible in evidence as the original itself in any

oa Ae Se RR 5 ANE SA AI a MGT NON La RT ENE FS

42

Appendix ‘‘B”’

judicial or administrative proceeding whether the original

is in existence or not and an enlargement or facsimile of

such reproduction is likewise admissible in evidence if the

original reproduction is in existence and available for in-

spection under direction of court. The introduction of a

reproduced record, enlargement, or facsimile does not pre-

clude admission of the original. This subsection shall not

be construed to exclude from evidence any document or

copy thereof which is otherwise admissible under the rules

of evidence. A's amended Aug. 28, 1951, ¢. 351, $$ 1, 3, 65

Stat. 206.

N. Y. Labor Law, § 202, as it read on December 15, 1950

§ 202. Protection of persons engaged at window cleaning.

The owner, lessee, agent and manager of every public

building where the windows are cleaned from the outside

shall install and maintain anchors on all windows of such

building or provide other safe means for the cleaning of

the windows of such building as may be required and ap-

proved by the board of standards and appeals. The owner,

lessee, agent, manager or superintendent of any such pub-

lie building shall not require, permit, suffer or allow any

window in such building to be cleaned unless such anchors

or other means are provided to enable such work to be done

in a safe manner in conformity with the requirements of

this chapter and the rules of the board of standards and

appeals. A person engaged at cleaning windows of a pub-

lie building shall use the safety devices provided for his

protection. Every employer or contractor shall require his

employee, while engaged in cleaning any window of a

public building, to use the equipment and safety devices

required by this chapter and rules of the board of stand-

ards and appeals.

PURSE RD er TE TO I ED n't

43

Appendix ‘*B”’

The provisions of this section shall not apply to (1)

multiple dwellings six stories or less in height located

anywhere in this state; nor to (2) any building three

stories or less in height in cities, towns or villages having

a population of less than forty thousand; nor to (3) the

window or windows of any building which may be exempted

under any rule adopted by the board of standards and

appeals.

The board of standards and appeals may grant varia-

tions pursuant to the provisions of Section thirty of this

chapter exempting the windows of any building from the

provisions of this section where such windows can be and

are to be cleaned from the inside.

The board of standards and appeals may make rules

supplemental to this section by designating safety devices

of an approved type and strength to be installed on public

buildings or to be worn by window cleaners or both, but

the absence of any such rule shal] not relieve any person

from the responsibility placed on him by this section.

Added L. 1942, ¢. 824; amended L. 1943, ¢. 495; L. 1946,

ce. 603, eff. April 8, 1946.

44

Appendix “C”

RULES

AS AMENDED RELATING TO

PROTECTION OF PERSONS EMPLOYED

AT

WINDOW CLEANING

These Rules effective April 1, 1944, were adopted by the

Board of Standards and Appeals of the Department of

Labor, March 15, 1944, in accordance with the provisions

of Section 202 of the Labor Law. These Rules supersede

the existing Industrial Code Bulletin No. 21 adopted by

the Industrial Board, effective April 1, 1933.

STATE OF NEW YORK es

BOARD OF STANDARDS AND APPEALS f “""

1, WILLIAM H. ROBERTS, CHAIRMAN OF THE BOARD OF

STANDARDS AND APPEALS of the New York State Department of

Labor, DO HEREBY CERTIFY, that a copy of the Board’s resolution dated

March 15, 1944, adopting Industrial Code Rule No. 21, Relating to Protection

of Persons Employed at Window Cleaning, effective as of April 1, 1944, and

rescinding existing Industrial Code Bulletin No, 21, and certified copy of said

rule as adopted, were formally filed with the Department of State of the State

of New York on March 18, 1944, in accordance with the provisions of Section

twenty-nine of the Labor Law and of Article TV, Section 8, of the Constitu-

tion of the State of New York.

WILLIAM H. ROBERTS,

Chairman, Board of Standards and Appeals

Dated at Albany, N. Y., this 18th day of March, 1944.

EXTRACT OF THE LABOR LAW

Authorizing the Promulgation of the Rules Herein

Contained

Section 202.

The owner, lessee, agent and manager of every public

building where the windows are cleaned from the outside

shall install and maintain anchors on all windows of such

building or provide other safe means for the cleaning of

45

Appendix **C”’

the windows of such building as may be required and

approved by the board of standards and appeals. The

owner, lessee, agent, manager or superintendent of any

such public building shall not require, permit, suffer or

allow any window in such building to be cleaned unless

such anchors or other means are provided to enable such

work to be done in a safe manner in conformity with the

requirements of this chapter and the rules of the board

of standards and appeals. A person engaged at cleaning

windows of a public building shall use the safety devices

provided for his protection. Every employer or contractor

shall require his employee, while engaged in cleaning any

window of a public building, to use the equipment and

safety devices required by this chapter and the rules of the

board of standards and appeals.

The provisions of this section shall not apply to (1)

multiple dwellings six stories or less in height located

anywhere in this state; nor to (2) any building three

stories or less in height in cities, towns or villages having

a population of less than forty thousand; nor to (3) the

window or windows of any building which may be ex-

empted under any rule adopted by the board of standards

and appeals.

The board of standards and appeals may grant varia-

tions pursuant to the provisions of section thirty of this

chapter exempting the windows of any building from the

provisions of this section where such windows can be and

are to be cleaned from the inside.

The board of standards and appeals may make rules

supplemental to this section by designating safety devices

of an approved type and strength to be installed on public

buildings or to be worn by window cleaners or both, but

the absence of any such rule shall not relieve any person

from the responsibility placed on him by this section.

Section 30.

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46

Appendix ‘‘C”’

EXTRACT OF THE PENAL LAW

Section 1275. Violations of labor law; the industrial code;

the rules, regulations or orders of the department of

labor, the industrial commissioner and *industrial board.

Any person who violates or does not comply with any

provision of the labor law, any provision of the industrial

code, any rule, regulation or lawful order of the depart-

ment of labor, industrial commissioner or *industrial

board, and any person who knowingly makes a false state-

ment in or in relation to any application made for an em-

ployment certificate as to any matter required by the labor

law to appear in any affidavit, record, transcript or certi-

ficate therein provided for, is guilty of a misdemeanor and

upon conviction shall be punished, except as in this chapter

or in the labor law otherwise provided, for a first offense

by a fine or not more than fifty dollars; for a second

offense by a fine or not less than fifty nor more than two

hundred and fifty dollars, or by imprisonment for not more

than thirty days or by both such fine and imprisonment;

for a third offense by a fine of not less than two hundred

and fifty dollars, or by imprisonment for not more than

sixty days, or by both such fine and imprisonment.

Industrial Code Rule No. 21—Protection of Persons

Engaged in Window Cleaning

RULES promulgated by the Board of Standards and Ap-

peals pursuant to sections 2 subd. 13, 27-a, 28, 29, 200

and 202 of the Labor Law:

21—1. Definitions.

21—1.1. ‘‘ Anchor’’ means the fitting fastened to the win-

dow frame or wall to which the safety belt terminal is

attached.

* Chapter 819, Laws of 1937, transferred powers and duties under the Labor

Law to the board of standards and appeals.

ie ae VERON Ey

47

Appendix *‘C”’

21—1.2. ‘‘Approved’’ means approved by the Board of

Standards and Appeals.

°1—1.3. ‘‘Board’? means the Board of Standards and

Appeals of the New York State Department of Labor.

911.4. ‘‘Commissioner’? means the Industrial Com-

missioner of the state of New York, or his duly authorized

representative.

91—1.5. ‘“‘Factory building’’ is such a building as de-

fined in section 2, subdivision 10, of the Labor Law.

°1—1.6. ‘‘Mercantile building’? is one occupied by a

mercantile establishment as defined by section 2, subdivi-

sion 11, of the Labor Law.

21—1.7. ‘‘Multiple dwelling’? means a building which is

either rented, leased, let or hired out, to be occupied or

is oceupied as the abode, residence or home of three or

more families living independently of each other. Such

a building which, because of its occupancy, conforms with

the definition of mercantile establishment or factory build-

ing as defined in the Labor Law, shall not be deemed to be

a multiple dwelling.

291—1.8. ‘‘Public building’’ means such a building as is

defined by subdivision 13 of section 2 of the Labor Law.

21—2. Application and scope.

21—2.1. Application and short title. These rules shall

apply to all window cleaning operations performed on all

public buildings and multiple dwellings except as otherwise

provided herein.

These rules shall be known and may be cited as ““The

window cleaning code.”’

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48

Appendix **C”’

21—2.2. Exemptions.

21.—2.2.1. Multiple dwellings. These rules shall not

apply to multiple dwellings six stories or less in height

located a: where in this State.

21—2.2.2. Three story building in small cities. There

rules shall not apply to any building three stories or less

in height in cities, towns or villages having a population

of less than 40,000. For the purpose of this rule, the

population as determined by the then last decennial cen-

sus of the United States Census Bureau shall be ac-

cepted.

21—2.2.3. Cleaning exterior face of windows from in-

side. These rules shall not apply to any window which

is so constructed that the exterior face can be and is

cleaned entirely from the inside and during which clean-

ing operation no part of the window cleaner’s body ex-

cept one arm or hand is required to project beyond the

frame in which the window is set.

21—2.2.4. Windows on balconies, fire escapes and flat

roofs. These rules shall not apply to any window open-

ing on a baleony having a railing 36 inches high, nor

to a window opening on a fire escape, nor to any window

opening on a roof provided such roof has a pitch of not

more than one inch in one foot, is six feet or more in

width and is capable of safely sustaining the weight of

the window cleaner and his equipment.

21—2.2.5. Cleaning inside face of windows. These

rules shall apply to the cleaning of the inside face of any

window where the window cleaner performs such opera-

tion while resting on a level that is six feet or more

above the floor.

Otherwise these rules shall not apply to the cleaning

of the inside face of any window.

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49

Appendix “*C”’

21—2.2.6. Windows more than six feet above ground.

Every window the lowest part of the frame of which is

six feet or more above the ground shall be provided with

anchors and shall be cleaned by means of such anchors

and safety belts except where other safe means are per-

mitted by these rules.

21—3. General requirements.

291—3.1. Responsibility of employer and owner, Win-

dows shall be cleaned only by the methods prescribed by

these rules.

The person employing, directing or permitting another

to clean windows shall furnish or cause to be furnished the

means for performing such work in a safe manner as re-

quired by these rules, or such other means as may be

approved by the Board, except that anchors and such other

approved equipment as may be affixed to and are an in-

tegral part of the building snall be provided by the owner,

lessee, agent or manager.

21—3.2. Responsibility of employee. Window cleaners

shall use the devices and means provided by these rules for

their protection.

291—3.3. Identification of manufacturer and approval

number. Unless otherwise permitted by the Board, all de-

vices required by these rules which are manufactured on

and after April 1, 1944, shall bear a name or mark which

shall readily identify the manufacturer thereof and such

devices which are required to be approved shall bear the

approval number and such other identification as may be

prescribed by the Board, in letters which are easily legible.

21—3.4. Skilled operators for scaffolds and boatswains

chairs. Only experienced and properly trained persons

shall be permitted or employed to clean windows by work-

ing on scaffolds or in boatswains chairs.

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50

Appendix ‘‘C’’ ‘

21—3.5. Lag screws and expansion bolts. The use of ;

lag screws or expansion bolts as a means of fastening an- |

chors is prohibited.

21—3.6. Passing from window to window prohibited.

No window cleaner shall pass from one window to another

window on the outside of a building.

21—3.7. Limitation on use of safety belts and anchors.

Anchors shall be deemed adequate safety devices only

where the window and its approaches are so constructed

and maintained that the window cleaner can safely reach

the sill and attach one belt terminal to the anchor before

stepping out onto the sill and where it is possible for one

belt terminal to remain attached to the anchor while the

window cleaner steps back into the building.

The windows of an acid manufacturing plant or a plant

where acids are generated or released in quantities that

may be detrimental to the use of safety belts, or the win-

dows of any building within 100 feet of any such plant,

shall not be cleaned by means of anchors or safety belts

nor shall safety belts be used where acids or other corro-

sive substances are used for cleaning windows except as

provided in rule 21—3.8, ‘‘Use of corrosive substances.”’

21—3.8. Use of corrosive substances. Acids or other

corrosive substances may be used for cleaning windows

only under the following conditions:

A scaffold shall be used, and if of the swinging type, such

scaffold shall be suspended by means of wire rope. The

use of fibre rope of any kind is prohibited. A highly dilute

solution (not more than five per cent) of hydrochloric

(muriatic) or hydrofluoric acid shall be used. The cleaner

shall wear rubber gloves and shall apply the solution with

a brush.

All parts of the scaffolding and other equipment shall

be liberally washed with water after each use to prevent

corrosive reactions.

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51

Appendix ‘*C”’

21—3.9. Maintenance of equipment. All equipment re-

quired by these rules shall be maintained in good repair

at all times.

291—3.10. Existing anchor installations. Installations of

anchors made prior to April 1, 1933, and all anchors which

do not bear the mark of approval by the board, shall be

examined by the owner. Ali such anchors made of cast &,

metal and all anchors that do not comply with the dimen-

sions herein specified and all screw fastenings that do not

comply with these rules shall be removed and replaced

with approved equipment not later than July 1, 1945.

LLIN TELS LEK, LIPO IEE A IGE

| 91—3.11. Inspection of manufacturer’s stock. The man- <

ufacturer’s stock of approved devices shall be subject to

such inspection and test by the Commissioner as he may

prescribe.

21—3.12. Shutter bars. Shutter bars on windows cov-

ered by these rules shall be made secure for persons

cleaning such windows, by means of through bolts at least 3

three-eighths inches in diameter or by replacement of the

bar or by both if necessary. : 3

213.13. Detachable draft deflectors. Detachable draft

deflectors shall be removed before the window cleaning

operation is begun.

21—3.14. Icy window sills. Windows having sills that

are coated with ice shall not be cleaned from the outside

if the window cleaner is required to stand on the sill.

21—3.15. Broken sash chains or cords. Broken sash

chains or cords shall be repaired before any person is

permitted or required to clean a window having such de-

fect.

21—3.16. Wide fixed-sash windows. Wide fixed-sash

windows, having adjacent thereto an openable smaller

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52

Appendix **C”’

window separated by a mullion therefrom shall be required

to have two anchors installed on each mullion. The win-

dow cleaner shall attach both belt terminals so as to per-

mit one-half of the larger window to be cleaned from each

side.

21—4. Installation and maintenance of anchors.

21—4.1. Anchors for all buildings. All windows to

which these rules apply shall be provided with approved

anchors, except as otherwise provided, and shall be in-

stalled as herein specified except as may otherwise be ap-

proved by the Board.

21—4.2. Locations. Anchors shall be attached to the

side frames of the window or to the building at a point

not less than 44 inches nor more than 51 inches above the

window sill. Care shall be taken when screwing up anchor

fastenings, to prevent producing excess stresses.

21—4.3. Wood—existing and new buildings. Anchors

shall be attached to wood or metal-covered wood window

frames by bolts of not less than three-eighths of an inch in

diameter which shall pass through the entire window

frame and shall be securely fastened by a nut and washer.

The diameter of such washer shall be at least twice the

diameter of the bolt hole. The ends of such bolts shall

be upset to prevent loosening or removal of the nuts. The

back face of anchors for installation in wood window

frames or mullions shall be provided with at least two

sharp lugs to prevent turning of the anchor after instal-

lation, or other equally effective methods may be used.

21—4.4. Masonry—new buildings. Anchors attached

to walls of masonry units, erected after March 31, 1933,

shall be installed while the wall is under construction and

shall be shaped to build into the joints between masonry

units. Such anchors shall not be less than eight inches

a eek CALETA RAE aD DOM len i AOI: Dt mL lit PO AR aN EET ON PDEA RAE IO

53

Appendix **C”’

long; shall have a cross-sectional area of not less than

one-quarter of a square inch; shall have a fluke or flukes

having a holding surface of not less than one inch in length

and shall be firmly imbedded in the masonry.

21—4.5. Masonry—evxisting buildings—concrete—new

and existing buildings. On and after April 1, 1944, an-

chors shall not be installed in existing masonry or con-

erete, nor in new concrete, but shall be attached to the

window frames as required by rules 21—4.8, **Wood—

existing and new buildings,” 91—4.6, ‘Hollow metal—

existing and new buildings,’’ or 21—4.7, ‘‘Solid metal—

existing and new buildings.”’

21—4.6. Hollow metal—existing and new buildings. An-

chors shall be attached to hollow metal construction by one

of the following methods:

At least two bolts not less than three-eighths of an inch

in diameter and of proper length shall pass through the

frame and a steel reinforcing plate at least five-sixteenths

of an inch thick, not less than six inches long and three-

quarters of an inch wide, placed on the inside of the frame

and secured by means of nuts and lock washers. In cases

where it is impracticable to provide nuts and lock washers

the reinforeing plate may be tapped to receive three-

eighths inch diameter machine serews and the machine

screws shall pass through the plate.

Where the screw bolt is an integral part of the anchor,

it shall be at least one-half inch in diameter and shall be

secured by means of a nut and lock washer and a steel

reinforeing plate as described in the preceding paragraph,

or it may be screwed into a tapped hole in the reinforcing

plate.

All anchors and anchor fastenings shall be provided with

means to prevent them from turning, backing off or becom-

ing loose.

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Appendix **C”’

214.7. Solid metal—existing and new buildings. An-

chors shall be attached to solid metal frames by at least

two bolts not less than three-eighths of an inch in diameter

and of proper length which shall pass through the frame

and be secured on the inside by a nut and lock washer.

However, in cases where it is impractical to provide such

nuts and lock washers, the frame shall be tapped its en-

tire thickness and the screw fastenings shall extend

through the frame. In such instances at least five-

sixteenths of an inch length of thread shall be provided

in the frame, otherwise a tapped reinforcing plate as

specified in rule 21—4.6, ‘‘ Hollow metal—existing and new

buildings,’’ shall be used.

Where the screw bolt is an integral part of the anchor,

it shall be at least one-half inch in diameter, and shall be

secured to the frame by means of a nut and lock washer,

or the frame member may be tapped through to receive the

screw bolt provided the metal is at least three-eighths of

an inch thick.

All anchors and anchor fastenings shall be provided with

means to prevent them from turning, backing off or becom-

ing loose.

214.8. Maintenance of anchors. The owner, lessee,

agent, manager or superintendent of every public building

shall maintain all anchor installations in a safe condition.

21—4.9. Anchor material and specifications. Anchors

and anchor fastenings shall be drop forged or machined

of approved corrosion resistant rolled alloy. After forg-

ing, the metal shall be properly annealed. The finished

product shall be free of imperfections and all corners shall

be properly filleted or rounded. Where screw fastenings

are used the forgings shall be spot faced to receive the

screw head.

Screws or bolts used to fasten anchors shall be made of

stainless steel, copper-silicon, copper-nickel or such other

Soa ealemeeniaall me oe a ee ee ee ee oN A ie _)

55

PBST NCNM

Appendix “*C”’

corrosion resistant metal alloy as may be approved by the

Board. Screws shall have an unthreaded portion under the

head not less than three-sixteenths of an inch long. Care

shall be taken when screwing up anchor fastenings to

prevent producing excess stress.

Anchor heads shall conform to the dimensions shown

in figures Nos. 1 and 2.

LEELA I. 3

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91—4.9.1. Corrosion resistant metal. Corrosion re-

sistant metal means a metal so alloyed as to provide

resistance to rust and corrosion under normal atmos-

pheric conditions. It shall be so processed as to conform

to the best current practices to minimize segregation,

oxides, flaws and internal stresses and shall have a mini-

mum tensile strength of not less than 55,000 pounds per

square inch with an elongation of at least 25 per cent in

two inches. The zine content of copper alloys shall not

exceed five per cent. Such metal where specified to be

used in the manufacture of devices herein required shall

be approved.

Two tensile test bars shall be taken from each heat

or batch of pieces at the time of forging or from bar

stock of machined items for use by the Commissioner

in performing such tests as he may deem necessary.

21—5. Safety belts.

21—5.1. Approved safety belts to be provided. The

person employing, directing or permitting another to clean

windows provided with anchors shall furnish or cause to

be furnished a properly fitting approved safety belt where

the cleaning of the windows requires any part of the win-

down cleaner’s body to project beyond the frame in which

the window is set.

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21—5.2. Construction. Straps used in the manufacture

of safety belts shall be of woven fabric or cotton or Manila

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Appendix **C”’

rope and shall be made of first quality material, which

shall be treated against mildew by a non-acid and non-

corrosive anti-mildew agent. Stitching of the material

shall be done with hot waxed, best quality linen thread

and shall be lock stitching. Fabrie ends shall be bound,

or dipped in wax to prevent unraveling.

21—5.2.1. Approval test of safety belts. Prior to

approval by the Board of a safety belt, it shall be tested

as hereinafter specified. Such test shall be performed

by a recognized, disinterested authority, acceptable to

the board. Two copies of the complete report of the

testing authority, which shall include a detailed deserip-

tion of the test sample, the test procedure and test re-

sults shall be submitted to the Board with the applica-

tion for approval.

The complete assembly of the safety belt shall be

capable of holding a 250 pound weight falling free for

a distance of four feet.

In performing the test, the test weight shall be a rigid

object 45 inches in girth and having a weight of 250

pounds; it shall be held by the waist band and secured

by the belt buckle in the same manner as when the belt

is worn by the window cleaner; one belt terminal shall

be attached to a rigid anchor and the test weight shall

fall free for a distance of four feet from a point in

vertical alignment with the point of suspension.

A safety belt or any of its parts which have been used

for testing purposes shall not thereafter be used by a

window cleaner in the conduct of his work.

91—5.2.2. Metal thimbles. Metal thimbles shall be

provided where straps are secured to eyes or rings.

Febrie straps shall be reinforced with leather at such

points of wear. Thimbles for fabric straps shall run

free, shall be finished smooth throughout and shall have

rounded edges.

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a7

Appendix **C”’

21—5.2.3. Terminals and other metal fittings. Safety

belt terminals and other metal fittings subject to stress

during use shall be drop forged or machined of steel

or approved corrosion resistant alloy as specified in rule

21—4.9.1, ‘*Corrosion resistant metal.’’ Where steel is

used, it shall be made in accordance with the specifica-

tions contained in the then current standards of the

American Society for Testing Materials, designation

A-237 (class C). The finished product shall be free of

imperfections. After forging, the metal shall be properly

annealed. Such terminals and other metal fittings shall

meet the strength requirements of rule 21—4.9.1, ‘‘Cor-

rosion resistant metal.’? The dimensions of terminal

slots shall conform to the dimensions shown on figure 3.

An approved safety catch shall be included as part

of each terminal.

915.3. Method of use. Window cieaners using a

safety belt shall attach one belt terminal to the anchor

before stepping out onto the sill and one belt terminal

shall remain attached to the anchor while siepping back

into the building. During the operation of window clean-

ing, both belt terminals shall be attached to the anchors.

215.4. Maintenance of safety belts. Safety belts

shall be maintained in good repair at all times.

All safety belts shall be frequently examined by the

person employing, directing or permitting the window

cleaner to clean windows, and shall also be examined by

the window cleaner before use each day and no belt shall

be used which does not provide safety as required by

these rules.

All belts shall be so stored and handled as to prevent

rust or injury thereto. No belt shall be used that has been

affected by mildew, by the action of acid, or by any other

corrosive or deteriorating agent.

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Appendix ‘*C”’

Safety belts shall not be stored in the same room with

acids.

21—5.5. Wear and replacement. Belt straps which

have been worn so as to show broken fabric threads, shall

be replaced by new straps. No belt terminal shall be used

if any point in the slot will accommodate a nine-sixteenths

of an inch plug gauge.

No link shall be used in the belt terminal strap if any

cross sectional dimension of such link is less than 0.300

inch.

21—6. Ladders.

21—6.1. When to be used. Ladders shall be used for

window cleaning operations only where the windows can-

not otherwise be cleaned safely and practicably by means

of anchors and safety belts.

916.2. General use requirements.

21—6.2.1. Means of preventing slipping. All ladders

used in connection with cleaning operations shall be

provided with suitable means to prevent slipping.

21—6.2.2. Person to hold ladder. Ladders more than

18 feet in length used on a public street, and elsewhere

more than 24 feet in length, used in connection with

window cleaning operations, shall have a person sta-

tioned at all times at the foot of the ladder to hold it

in place while the window cleaner is on the ladder. Such

person shall face the ladder and hold it with both hands.

21—6.3. Specifications for all ladders. All ladders used

in connection with window cleaning operations shall con-

form with the following specifications :

21—6.3.1. Lumber. Wooden ladders shall be con-

structed of thoroughly seasoned, sound, clear and straight

PUL B PE EAS TREES Coe

Appendix **C”’

grained lumber, free from shakes, cross breaks or checks

over six inches long. The slope of the cross grain in

finished members shall not exceed one in 15.

Rungs or steps shall be made of commercial white ash,

hickory, or other material of equal strength and du-

rability.

Side rails shall be made of eastern red spruce, Sitka

spruce, fir or other material of equal strength and du-

rability.

21—6.3.2._ Rungs and rails. Rungs shall be at least

one and one-eighth inches in least cross-sectional dimen-

sion between rails but in all cases they shall be capable

of safely carrying the load that may be placed thereon in

normal use. Wooden rungs shall fit snugly in holes not

less than seven-eighths of an inch in diameter, bored

through the side rails. Rungs shall be secured at each

end to prevent turning. Ladders, the rungs of which

have worn to three-fourths of their original thickness at

any point, shall not be used. Rungs shall be spaced 12

inches center to center.

Side rails shall be finished smooth and free from

splinters. Corners shall be rounded. Rails shall be at

least one and one-eighth inches in thickness and shall be

of sufficient depth to safely carry the loads that may be

placed thereon.

21—6.3.3. Prohibition against painting. Wooden

ladders shall not be painted.

21—6.3.4.. Load bearing metal parts. Load bearing

metal parts of all ladders shall be made of steel, wrought

iron, malleable cast iron or other material of equivalent

strength and durability and shall be so constructed and

so secured as to safely carry the load which may be

placed thereon.

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aR EAA A ORR ADIL BAIN EE Nt VOR ANE ge ARLENE NI PR AO I Et MO AIAN SRE

60

Appendix **C”’

21—6.4. Additional specifications—sectional ladders.

21—6.4.1. Locking slots. Dimensions of the locking

slots at the end of the ladder shall be fifteen-sixteenths

of an inch wide and two inches long. Locking slots shall

be reinforced on one side with a metal plate of not less

than No. 18 U. S. gauge. This plate shall be securely

fastened in place. A rivet extending through the depth

of the rail shall be provided above each locking slot.

Sectional joints shall be not less than one foot long and

shall fit snugly without binding or unnecessary play.

21—6.4.2. Dimensions. Top ladder sections shall not

exceed nine feet in length and shall be not less than four

inches wide across rails at the top.

The bottom and intermediate sections shall be not more

than six feet four inches long and shall otherwise con-

form with these rules.

The over-all length of sectional ladders shall not ex-

ceed 30 feet.

21—6.4.3. Table of governing dimensions.

Depth of rails:

Ladders not exceeding 21’ long—at least 234”

Ladders more than 21’ long—at least 314”

Spread between rails:

Base of top section—at least 1114”

Taper of other sections—at least 14” per foot of length.

Size of rungs:

Not exceeding 24” between rails—at least 114” diam.

More than 24” between rails—at least 1-3/16” diam.

21—7. Swinging and built up scaffolds.

21—7.1. When to be used. Scaffolds shall be used for

window cleaning operations only where the windows of a

public building cannot otherwise be cleaned safely and

practicably by means of anchors and safety belts.

Spit Nae are ne RI lt

61

Appendix **C”’

21—7.2. General use requirements.

21—7.2.1. Means of preventing swaying, and life lines.

Means shall be provided to prevent swinging scaffolds

from swaying. A life line shall be provided for each

man working on such scaffolds.

21—7.2.2. Required strength. All scaffolds and their

supports shall be properly constructed and shall have a

safety factor of at least four.

21-7.3. Specifications for swinging scaffolds.

21—7.3.1. Railings and toeboards. Every scaffold

swung from an overhead support which is 10 feet or

more from the ground or floor shall be at least 20 inches

in width and provided with railings on open sides and

toeboards on all sides. The railing shall be two inches

by three inches and at least 42 inches above the scaffold

platform, with an intermediate rail. The toeboards shall

be at least one inch by four inches.

°1—7.3.2. Hangers, blocks and tackle. Hangers or

stirrups shall be made of steel and shall be so shaped as

to provide equal bearing on all bearing points. The

hanger or stirrup shall be placed not less than six inches

nor more than 18 inches from the end of the platform.

Rope used for the support of swinging scaffolds shall

be not less than three-quarters of an inch in diameter,

first quality Manila rope or the equivalent in strength and

suitability. Such rope shall be reeved into proper size

ball bearing or bushed pulley blocks.

Rope suspended scaffolds shall not be permitted for

or near any work where acid is used, or where the upper

block is more than 100 feet above the platform. Suitable

padding shall be provided where necessary to prevent

chafing.

ke et POND adi an RRC nO

FART OM AIAN

=

6

¢

5

-

7

a

;

ms on ee eno Oe Re ae NR ems! oR RE Aoki a

62

Appendix **C”’

21—7.4. Built up light duty scaffolds. Built up light

duty scaffolds of the independent pole type shall Se per-

mitted for window cleaning operations. Such scaffolds

shall conform to the specifications set forth in rule 23—

8.2.2.2, “General requirements (pole scaffolds) table D, No.

1’’ found in industrial code rule No. 23, relating to the

protection of persons employed in the erection, repair and

demolition of buildings or structures.

21—8. Boatswains chairs.

21—8.1. When to be used. Boatswains chairs may be

used for window cleaning operations only where the

windows of a public building cannot otherwise be cleaned

by means of anchors and safety belts in conformity with

these rules.

21—8.2. Specifications and method of use. Boatswains

chairs used for window cleaning operations shall be sus-

pended from their corners and there shall be a rope or

strap guard across the front and rear 18 inches above the

seat, or a body belt attached to the lower tackle hook, or

other fixed support shall be used. A rope tackle with not

less than a single and a double sheave block with five-

eighths of an inch diameter first quality cotton or Manila

hemp rope shall be used for raising and lowering the chair.

The blocks shall be ball bearing or bushed pulley blocks

and the rope shall be connected thereto by means of a

thimble and splice. A fall line shall be provided with an

approved automatic locking device. A person shall be

stationed at all times beneath to operate the tackle. Upper

and lower tackle hooks shall be provided with means to

prevent accidental disengagement.

When the chair is suspended from the roof, or when

otherwise necessary, suitable padding shall be provided to

prevent chafing.

Boatswain chairs and their supports shall have a factor

of safety of at least four.

a a amine * . ec

Appendix “—

Appendix

Dimensions of Anchor Heads and Terminal! Slots

91—4.9. Anchor heads shall conform to the dimensions

shown in figures Nos. 1 and 2.*

91—5.2.3. The dimensions of terminal slots shall con-

form to the dimensions shown on figure No. 3.*

* Diagrams omitted.

x

Press of Fremont Payne, Inc., 80 Washington St., N. ¥Y.—BOwling Green 9-8153

249

- (4816) |

aN Os (DRT EH kee

IN THE

Supreme Court of the United

OCTOBER TERM, 1956

No. 544

+>

>

ALLIED CLEANING Contractors, INC.,

Fourth-Party Defendant,

Petitioner,

—against—

ALLIED MAINTENANCE CORPORATION,

Third-Party Defendant,

Respondent-Petitioner,

—against—

Trans Wortp AIRLINES, Defendant, and

SreveE Kozman, Plaintiff,

Respondents.

ST en

PETITION OF ALLIED MAINTENANCE CORPORA-

TION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

a

Rvussett T. Mount,

Counsel for Petitioner,

Allied Maintenance Corporation,

27 William Street,

New York, New York.

Menpes & Mownt,

KENNETH R. THOMPSON,

KeitH Brown,

Of Counsel.

Tue Cover Press, 130 Cedar Street, N. Y. C.

: ——

DONS RE LTC ee EL RE TY

wey wh CR TD a MR AAEM A SN RNa NING Ne IN Rad NRA SCRA Rata MORE aes

a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1956

No.

-™

—

ALLIep CLEANING ConTraAcToRS, INC.,

Fourth-Party Defendant,

Petitioner,

against—

ALLIED MAINTENANCE CORPORATION,

Third-Party Defendant,

Respondent-Petitioner,

—against—

Trans Woritp Arriines, Defendant, and

Sreve KozMAN, Plaintiff,

Respondents.

a

~~

PETITION OF ALLIED MAINTENANCE CORPORA-

TION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Petitioner Allied Maintenance Corporation prays

that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Second

Circuit, entered in the above entitled action on August

6, 1956, if and only if the petition for writ of certiorari

of Allied Cleaning Contractors, Inc. is granted by this

Court.

to

Opinions Below

The judgment of the District Court was entered

upon a jury verdict. The majority and dissenting

opinions of the United States Court of Appeals for

the Second Circuit are as yet unreported and appear

at pages 22 through 39 of the petition of Allied Clean-

ing Contractors, Inc. for writ of certiorari and the

majority and dissenting memorandum decisions on

the petition for rehearing in that Court are copied at

page 40 thereof.

Jurisdiction

The judgment of the United States Court of Appeals

for the Second Cireuit was made and entered on

August 6, 1956. The order of the United States Court

of Appeals for the Second Circuit denying the peti-

tion for rehearing was made and entered on August 27,

1956. The jurisdiction of this Court is invoked under

28 U. S. C. 1254 (1) if and only if the petition for

writ of certiorari of Allied Cleaning Contractors, Ine.

is granted by this Court.

Questions Presented

Allied Maintenance Corporation, defendant in the

third-party action brought by “‘rans World Airlines,

Ine. and plaintiff in the fourth-party (second third-

party) action against Allied Cleaniny Contractors,

Ine., stands in a fortunate position in this litigation:

Whether this Court affirms or reverses the judgment

of the court below, ultimate liability cannot be fastened

|

3

upon Allied Maintenance Corporation, this petitioner.

This is not disputed by the fourth-party defendant,

Allied Cleaning Contractors, Ine.

Allied Maintenance Corporation, third-party defend-

ant, petitions this Court for a writ of certiorari and

asks that it be granted if and only if the petition for

a writ of certiorari of Allied Cleaning Contractors,

Ine., the fourth-party defendant, is granted by this

Court, in order that the position of this petitioner

in the litigation may be preserved.

Allied Cleaning Contractors, Ine. in its petition for

certiorari, at pages 2 and 3, outlines the questions

which it would have this Court consider. This peti-

tioner would have this Court consider the same ques-

tion, if certiorari is granted and believes that they

may be reduced to two issues:

1. Whether TWA may recover indemnity from

any other defendant for its violation of Section 202

of the New York Labor Law.

2, Whether the trial court improperly allowed the

jury, in the third-party action of TWA against Allied

Maintenance Corporation, to consider written records

of physicians and a hospital embodying accounts by

plaintiff Kozman as to how the accident occurred,

Statutes Involved

98 U. S. C. § 1732 (the Federal Business Records

Act); N. Y. Labor Law § 202 (the Window Cleaners

Statute) and Industrial Code Bulletin Rule No. 21

(the Window Cleaners Code). These are copied at

pages 41 through 63 of the petition of Allied Cleaning

Contractors, Inc. for a writ of certiorari.

ne id ee ee A

Statement

The proceedings prior to trial, the evidence adduced

at the trial and the judgments in the courts below

are well and fully described in the petition of Allied

Cleaning Contractors, Inc. (hereinafter referred to as

Allied Cleaning). They will not be recited again

here. However, the passive situation of Allied Main-

tenance Corporation (hereinafter referred to as Allied

Maintenance), and its position as a mere ‘‘eonduit”’

should perhaps be commented upon.

Allied Maintenance had agreed to provide Trans

World Airlines (hereinafter referred to as TWA)

with certain services at its hangar at LaGuardia Field,

including window cleaning. This agreement provided

that Allied Maintenance would indemnify TWA only

for negligence, stating:

‘“We (Allied Maintenance Corporation) agree

to indemnify and hold you harmless from and

against any and all claims, demands, charges,

liabilities or damage by reason of claims for

injury to, or death of persons and loss of or

damage to property caused by or arising from

the negligence of ourselves, our agents, servants

or employees during the course of the performance

of this agreement.”’

The actual window cleaning was performed by

Allied Cleaning; Allied Maintenance did not have

a single window cleaner in its employ. Kozman was

an employee of Allied Cleaning; he was not at any

time an employee of Allied Maintenance. Allied

Cleaning is not and was not a subsidiary of Allied

Maintenance. Allied Maintenance did no window

5)

cleaning and furnished none of the equipment used

by Kozman or any other window cleaner.

The facts concerning the accident can be shortly

stated. Between 10:30 and 11:00 o’clock on the

morning of December 15, 1990, Kozman was standing

about 10 feet up on a three section window cleaner’s

ladder belonging to his employer, Allied Cleaning,

washing the lower window panes on the outside of

a TWA hangar at LaGuardia Airport. The bottom

or foot of the ladder was about 3 or 314 feet out from

the hangar door resting upon a level concrete surface

which extended 4 or 5 feet out from the bottom of

the hangar door. The top of the ladder was resting

against the hangar door.

Kozman and his witness Koslowsky testified that

the four motors of the TWA plane were suddenly

started and that a blast of wind ‘“‘like a hurricane’”’

blew over the ladder with Kozman on it. The ladder

fell ‘‘sidewise’’.

Kozman specifically denied that the feet of the

ladder slipped nor did any other witness testify

that they did.

TWA. cross-examined two physicians who treated

Kozman, Drs. Wahl and Benedig, and introduced

their reports to the Workmen’s Compensation Board,

which included accounts as to how the accident hap-

pened, into evidence.

With respect to such reports, Allied Maintenance

requested and the trial court refused to charge the

following:

“4 With respect to the second cause of

action, the so-called statutory cause of action,

. _—

6

you may not consider any statements which you

find that the plaintiff may have made to Dr.

Benedig, Dr. Wahl or the hospital in arriving

at a verdict in respect with the third-party

defendant, Allied Maintenance Corporation, and

the fourth-party defendant Allied Cleaning Con-

tractors, Ine. Any such statements, as contained

in the ‘histories’ or elsewhere, may be considered

only in the litigation between the plaintiff and

the defendant, Trans World Airlines, Inec.; such

statements may not be considered by you in any

way in arriving at our verdict with respect to

the third-part defendant, Allied Maintenance Cor-

poration, and the fourth-party defendant, Allied

Cleaning Contractors, Ine.”’

“6. Statements in the ‘histories’ of Dr, Wahl

and Dr. Benedig and the hospital may not be

considered by you as proof of any fact stated

or inferred therein. They have no probative

‘value. They may be considered by you only in

your appraisal of the credibility of the plaintiff

and his witnesses.’’

Although the trial court stated that it would charge

the following request in different words, this was not

in fact done:

‘*5. Questions have been asked and answers

elicited about the so-called ‘histories’ of how the

accident occurred as reflected in the records of

Dr. Wahl and Dr. Benedig (and) the hospital.

You may consider such evidenee in appraising the

credibility of plaintiff and his witnesses and in

arriving at your verdict as to whether plaintiff

has establishd by a fair preponderance of the

credible evidence that the accident occurred in

‘

the manner claimed by plaintiff. You may not

consider the evidence and testimony concerning

the ‘histories’ for any other purpose and you

may not find for plaintiff or against any of

the defendants in this litigation unless you find

that the aecident occurred in the manner claimed

by plaintiff, that is, that he and his ladder were

blown over by a blast of air from the propellers

of a plane of defendant, Trans-World Airlines,

Inc.”’

Allied Maintenance excepted to the denial of its

requests.

The jury found ‘‘against the plaintiff’’ on the first

cause of action for common law negligence. It found

for the plaintiff against TWA on the second cause

of action for violation of Section 202 of the Labor

Law, for TWA on its claim over against Allied Main-

tenance and for Allied Maintenance on its claim over

against Allied Cleaning.

Reasons for Granting Writ

The reasons why this Court should grant certiorari

are set forth ably and at length at pages 4 through 21

of the petition of Allied Cleaning for a writ of

certiorari. It would be superfluous to repeat them

here.

However, it should be pointed out that it is, in

a sense, a matter of indifference to this petitioner,

Allied Maintenance, how the issues urged upon this

Court are ultimately resolved. For if this Court

should uphold the judgment of the court below that

cote ~~

Same nS MELE EEE SLE, B

8

TWA has a claim over against this petitioner, Allied

Maintenance, then this petitioner by virtue of this

very holding must recover over against Allied Cleaning

and this is admitted by Allied Cleaning.

Consequently, this petitioner asks that it be granted

certiorari if and only if certiorari is granted Allied

Cleaning in order that this petitioner may preserve

its position in this litigation.

CONCLUSION

For the reasons set forth above, it is respectfully

submitted that this petition for a writ of certiorari

should be granted if and only if the petition of Allied

Cleaning for a writ of certiorari is granted by this

Court.

Respectfully submitted,

RvusseLt T. Mount,

Counsel for Petitioner,

Allied Maintenance Corporation.

Menpes & Movnt,

KENNETH R. THOMPSON,

Keita Brown,

Of Counsel.

, marten Gnek ' . > .

Ha oa A) ina AE Bl A NORE AAMC DUA T RAD DEUN TM diet BE Ba OU RC HRY ee amen = EYED

No. 54 NOV

1 1956

544 JOHN T. FEY, Clerk

In THE

United States Court of Appeals

SECOND CIRCUIT

No. 330—Ocroser Term, 1955

7’

v

Steve KozMan,

Plaintiff-Appellant,

v.

Trans Worup Arr.INEs, INC.,

Defendant-Appellant,

and

Auurep MAINTENANCE CORPORATION,

Third-Party Defendant-Appellant,

and

Auurep CLieantne Contractors, INC.,

Fourth-Party Defendant-Appellant.

+> _

PETITION FOR REHEARING

To THE HonoraBLeE JUDGES OF THE 'JNITED Sratres Court

or APPEALS FOR THE SECOND CIRCUIT:

Allied Cleaning Contractors, Inc., the fourth-party de-

fendant-appellant above named, presents this, its petition

for a rehearing in the above entitled cause, and, in sup-

port thereof, respectfully shows:

CP th So PN ADL He

SPE FL ES as Pe

Se Oe,

Foe

cel atid 2

FPS GEE ELIF OEY

7?

RN Te ee et: Or nee CS Rem Te 8 24 cae Si eoeialine TE

I

That part of the Court’s opinion of affirmance which

determines that there was sufficient evidence to submit the

statutory (Labor Law § 202), cause of action to the jury

despite the fact that the means provided to plaintiff for

the performance of his work was approved by the regula-

tions (Industrial Code Bulletin, 21), was a clear disregard

of the provisions of Section 202 and Rule 21, and the

holdings of the New York Court of Appeals in Teller v.

Prospect Heights Hospital, 280 N. Y. 456 and Pollard v.

Trivia Building Corp., 291 N. Y. 19.

The peculiar and dangerous circumstances which this

Court sees as the factor which converted the safe means

which conformed to the Code into a device abhorrent to

the statute was the sudden, unexpected and unanticipated

gust of air which struck plaintiff before he had a chance

to avail himself of the use of an additional safeguard

provided for him, a man to hold the ladder (Opinion p.

1959).

Two questions thus present themselves: (A) May a de-

fendant be held liable for violation of Section 202 when he

has provided equipment which complies with the provi-

sions of Rule 21: and (B) can a sudden set of circum-

stances created by an outside agency instantaneously ren-

der means which conform to the provisions of Rule 21

improper and violative of Section 202, merely because the

window cleaner’s accident would not have happened as

it did if he had been using seme undefined and ephemeral

other sort of means.

(A) This Court in its opinion determined that devices

other than those specified in the Rules can nevertheless be

used in violation of the Rules and thereby comply with

the statute if they can ‘tbe reasonably deemed better

adapted for the protection of the window cleaner.’’ Thus,

nna zs aie

a SAO AS T IRLIS A

3

in effect, this Court has substituted a jury for the Board

of Standards and Appeals as the ‘‘authority’’ in deter-

mining what type of means or appliances are proper for

window cleaning work; and in this case the jury was, ac-

cording to the opinion, completely competent to determine

that other means were more proper than ladders, without

hearing one word of testimony about the propensities or

capabilities of such other means.

The relegation of this function to the jury clearly dis-

regards the provisions of Section 202 which constrains

the phrases ‘‘safe means’’, ‘‘other means’? and ‘‘safe

manner’’ to those ‘‘required and approved by the board

of standards and appeals”’ or ‘‘in conformity. . . . with

the rules of the board.”’

Rule 21, itself, which as the Trial Court charged (301)

has the force and effect of law (Labor Law, §28, subd. 4),

clearly and explicitly commands ‘windows shall be cleaned

only by the methods prescribed by these rules’ (Rule

21-3.1). The trial court so charged (301).

It is thus clear that the function of determining what

is safe and proper was entrusted not to the hands or fancy

of a lay jury, whose understanding of the relative merits

of various types of equipment must by definition be limited.

On the contrary, this responsibility was exclusively dele-

gated to a body of experts who have the capacity, capa-

bility and facilities for examining, investigating, testing

and deciding which means and methods are best suited for

use in a particular industry; and upon the knowledge so

‘ aequired arrive at a uniform set of standards to be fol-

lowed by that industry (Labor Law § 27a, 28, 29). ‘*That

was but a permissible delegation of the power to make

appropriate administrative regulations to carry out the

provisions of the statute’? Burris v. American Chicle Co.,

1210 F. 2d 218, 222. This delegation to the board of ex-

clusive power to prescribe means and methods is in ac-

\.

4

cordance with the statutory objective, the prevention of

accidents. Rufo v. Orlando, 309 N.Y. HO, 20.

In Teller v. Prospect Heights Hospital, 230 N. Y. 456, 459

it is specifically stated that the violation of Section 202

for failure to supply ‘‘safe means’’ can be predicated only

upon a complete failure to supply any of the means spec-

ified in Rule 21.

‘“The statute does not in terms provide that anchors

shall be attached to the windows of the building nor

does it provide any particular device or contrivance

that shall be provided to make it safe for the window

washer to clean the window from the outside. We are

required to look to the Industrial Code ... to learn

what rules of The Industrial Board are applicable,

what means have been required by the Industrial

Board to be furnished and what devices have been

or may be approved for the safety of persons cleaning

windows.”’

As to the excerpt from Pollard v. Trivia, 291 N. Y. 19,

93-24, which the opinion cites as authority for its holding

that methods other than those specified in Rule 21 are

permissible, it must be noted that such statement is dicta;

and even if it were not, it would not apply to the accident

in question since Rule 21-3.1 (quoted on p. 3, supra) as

it read on December 15, 1950 (Rule 21 am. 1944) sanctioned

only the methods prescribed by the rules and no others,

while the same Rule 21-3.1 at the time of the Pollard acci-

dent (Rule 21 as am’d. 1933) read:

“Al! safety devices, that are used for window clean-

ing operations, shall be subject to the approval of

the Industrial Board.

‘Exception: Safety devices and methods of cleaning

windows heretofore (before April 1, 1933) in use, other

than those specified herein may be used if approved

by the Industrial Commissioner.”

SS =< .—“ s

PROD e Re Or OF Rate OTe ee te Tee

A comparison of the 1933 Rules with the 1944 Ruies

indicates that the former Rules were designed to accom-

plish a gradual transition from a varied complexity of

many methods and means used in the window cleaning

business to a select and uniform group of methods and

means without requiring industry to immediately disre-

gard its outdated but nevertheless costly equipment. The

1944 amendment, in effect, declared that the period of

transition was ended, or would end, in the immediate

future and gave sanction only to those means contained

in the new Rules and no others (See eg. Rules 21-3.10).

As to the last paragraph of Section 202 as authority

for devices other than those specified by the Rules, a care-

ful reading discloses that it merely states that the failure

of the Board to enact Rules supplementing the Legisla-

ture’s reference to anchors in the first paragraph (devices

_. . to be installed on public buildings) and their comple-

ment safety belts (devices to be worn by window clean-

ers) dces not absolve one of the duty to provide one of

the other devices sanctioned by the Rules.

(B) If this Court adheres to its premise that means

specified which comply with the Rules may nevertheless

be violative of the statute, the Court must next consider

whether the question of adequacy or inadequacy of the

means can be made to hinge upon a sudden and unex-

pected set of circumstances which places the user of the

otherwise adequate equipment in a position of danger to

which he may or may not have been exposed if he had

been using some other type of equipment.

In excusing the plaintiff’s failure to have someone hold

the ladder, the opinion notes that the cireumstance which

precipitated the accident was sudden and unexpected and

arose without warning so that plaintiff was unable to

eall upon a man to hold the ladder.

PO aa mele a com a ds PO AE LRT

Since the device being used by plaintiff was adequate it

cannot be said to have become instantaneously inadequate

merely because the accident would not have happened

in the exact manner which it did if plaintiff had been us-

ing some other type of equipment. If plaintiff had been

working with a belt, boatswain’s chair or swinging scaf-

fold, he undoubtedly would not have fallen to the ground

when the unexpected occurred, but he may have been

buffetted and battered against the hangar door. Witness

what happened to Koslowsky (180).

While the proximate cause of plaintiff’s fall may have

been the fact that he was standing on a ladder, that fact

certainly could not be the proximate cause of plaintiff’s

accident (Ranney v. Habern Realty Corp. 281 App. Div.

278, aff’d 306 N. Y. 820).

Section 202 does not make those charged with a duty

under it the insurers of a window cleaner’s safety and re-

quire them to protect him against every conceivable pos-

sobility or probability of accident. ‘‘The legislature . . .

to guard against the known hazards of the occupation, re-

quired the employer to safeguard the workers from in-

jury caused by faulty or inadequate equipment.’ Koenig

v. Patrick Const. Corp., 298 N. Y. 313, 319.

It is probable or possible that a window cleaner’s lad-

der may be dislodged when a sidewalk cellar or sidewalk

elevator door upon which the ladder rests is suddenly

opened, without prior warning, or when a prevecupied

pedestrian walks into it, or in a situation such as present

in the case at bar, his ladder may be bumped by a TWA

employee or a fellow employee. In some instances it

could not be said that an inadequacy in equipment caused

the accident merely because it happened, and that Section

202 had thereby been violated because the accident would

not have happened had another type of equipment been

used. The same applies to the case at bar. The fact that

EERE ae

7

“but for’? the use of a ladder there would be no accident

of the type in question does not render the use of the

ladder violative of Section 202.

While considerations of expediency in sustaining plain-

tiff’s verdict may have prompted the grafting of the bud

of the common law cause of action (the sudden gust of

wind) onto the stock of the Labor Law cause of action;

this hasty and artificial marriage can offer no satisfaction

to the matchmaker, this Court, even though the fruit born

of it is sweet to the plaintiff, for it is based neither on

sound logic, nor compatibility; nor even upon any theory

by which the trial court charged the jury (302-303).

The amendment of the Labor Law and Rule 21 by the

peculiar and sudden circumstance doctrine authored by

the opinion, even though it serves to give this plaintiff’s

verdict legitimacy, can only serve to create confusion in

place of uniformity in the window cleaning industry, and

throw it back to the period before Laws, Rules and Regu-

lations governing it were enacted.

Il

If plaintiff’s verdict can rest on the theory that the

sudden blast of air from TWA’s plane without any prior

warning by TWA (opinion 1954, 1958, 1959) caused the

adequate ladder to become inadequate and violative of

Section 202, it must follow that TWA’s liability was predi-

eated on its ‘‘active’’ negligence thereby depriving it of

a right of indemnity.

What is ‘‘passive’’? as contrasted to that which is

‘‘active’’ negligence is ‘‘the liability which results from

the mere omission of a legal duty (which) is to be dis-

tinguished * * * from that which results from personal

participation in an affirmative act of negligence or from

physical connection with an act of omission by knowledge

OO® teeth Se

ee net Seen ns

of, or acquiescence in, it on the part of the original con-

tractor.’’ Phoenix Bridge Co. v. Creem, 102 App. Div.

354, aff’d 185 N. Y. 580.

Since the ‘‘negligence’’ found was that which resulted

from the act of TWA in warming up the plane without

warning, thereby causing the ladder to become inadequate

where it had previously been adequate, it must follow that

TWA personally participated in the combination of cir-

cumstances which this Court calls violative of Section 202.

At the very least, TWA must be deemed to have physical

connection with any omission to provide other devices

under the circumstamces, since TWA, and TWA alone,

caused the circumstances to arise and failed to warn of

their imminence.

It is a glaring inconsistency to hold that the suddenness

of the event excused plaintiff’s failure to avail himself of

the use of a man to hold the ladder, a safe means pro-

vided by his employer, and at the same time determine that

the employer was ‘‘actively’’ negligent and the precipitator

of the incident ‘‘passively’’ negligent. On the contrary,

it would appear that the employer here is the ‘‘passive’’

party since its equipment became ‘‘inadequate’’ only when

unexpectedly acted upon by an agency solely and exclu-

sively within control of TWA.

Burris v. Americam Chicle Co., 120 F. 2d 218, is not

authority which sanctions the right to indemnity in the

case at bar; it is authority to the contrary.

In that case, the sole cause of the accident was the break-

ing of a scaffold rope supplied by the employer, Ashland,

which Ashland directed plaintiff to use after plaintiff had

called Ashland’s attemtion to the rope’s dangerous condi-

tion. American Chicle had no connection whatsoever with

the scaffold, scaffold rope, or any circumstance which

caused the aecideat.

“Without any active participation in the wrongful

acts or omissions of Ashland, Chicle has become

9

responsible to the plaintiff for the consequences of

Ashland’s own wrong and has the right to be in-

demnified by the wrongdoer.’’ (Burris, supra, p. 222

Since the circumstance which caused the adequate ladder

to become inadequate was caused solely by TWA, it would

seem that TWA must be at the very least an ‘‘active’’

tortfeasor under the Burris case.

The opinion (p. 1960) has made reference to ‘‘an ap-

propriate determination of seven issues among these three

defendants as carefully framed by the trial judge’’ as

justifying the jury’s verdict in the impleader actions. The

opinion further states ‘‘Further, the issues between TWA

and the impleaded defendants as formulated by the judge

in his charge make no mention of the slipping of the

ladder’’ and as a consequence the medical reports are too

trivial to be prejudicial to the impleaded defendants.

The seven issues (310), affirmative answers to which re-

quired a verdict of liability over, were not carefully

framed.

The fourth issue, to which exception was taken (314), left

it to the jury to decide whether TWA had supplied a tele-

scoping scaffold as alleged in the third-party complaint.

Since there was absolutely no proof that TWA did supply

it, the court should have charged that TWA failed to

prove this allegation.

The fifth, sixth and seventh issues, to which exceptions

were also taken (314-315), referred to the propriety of the

equipment and requested the jury to find whether the im-

pleaded defendants were negligent. Since no explanation

of the terms, ‘‘equipment,’’ ‘‘proper’’ and ‘‘negligence”’

were given, the jury, for definition, of necessity had to refer

back to the charge on the second cause of action, which was

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10

made to turn solely on the question of the slippage of the

ladder (303).

While this Court may turn its back and say that the

doctors’ reports were confined solely to the question of

whether or not a wind blew as respects the first cause of

action, the trial court neither in his comments before the

jury (162) nor in his charge evinced any intention to so

confine the reports, and in fact refused to charge to that

effect (see Allied Cleaning’s requests 3, 4, 13).

It is indeed strange that this court ean find lack of

clarity in plaintiff’s testimony that the ladder did not slip

and at the same time find obscurity, triviality and lack of

prejudice in the mention of the ladder’s slippage in the

physicians’ reports.

IV

In any event, the reversal of the judgment on plaintiff’s

first cause of action for error requires a new trial on the

issues of the third and fourth party complaints.

The impleader actions turned on the question of com-

mon-law indemnity arising out of ‘‘passive’’ and ‘‘active’’

negligence.

Implicit in a verdict on the first cause of action would

be a finding that TWA was ‘‘actively’’ negligent thereby

doing away with any possible right of indemnity even if

TWA could be held liable on the second cause of action,

and even if it could be entitled to indemnity therefor. The

parties would at the most be joint tortfeasors in pari

delicto with no possible right to indemnity (Opinion p.

1959).

As between the defendants, the errors on the first cause

of action have indicated a lack of proof by TWA of its

‘*passive’’ negligence as contrasted to the impleaded de-

fendants’ ‘‘active’’ negligence, thereby rendering the de-

termination on those matters inconclusive.

eR Rabe HAA DTG WOLF uh Aint oe ead

11

| This feature’s significance is highlighted by the Court’s

erroneous charge that Allied Maintenance obligated itself

(by the contract terms) to indemnify TWA from any neg-

jigence attributable to Allied Maintenance, but not, for

any negligence attributable to TWA alone (See Thompson-

Starret Co. v. Otis Elevator Co., 271 N. Y. 36, 41).

| Bernarp Katzen,

| Attorney for Petitioner,

Fourth-Party Defendant-Appellant,

by: Raymond C. Green, of Counsel.

I, Raymond C. Green, of counsel for Bernard Katzen,

attorney for fourth-party defendant-appellant, do hereby

certify that the foregoing petition for a rehearing of this

cause is presented in good faith and not for the purpose

of delay.

Raymonp C. GREEN.

BME ERSTE AN IS ES RIO OR GAL A ORI

TELS IU, SPE

ee NS ak A ay RE DAA EEO WE UR” Se EE DORN ee BE Ch DServe,

Press of Fremont Payne, Inc., 80 Washington St., N. Y.—BOwling Green 9-8153

oe

(4308)

DAGENT -e Tome

TT

NOQV 23 1956

JOHN T. FEY, Clerk

IN THE

Supreme Court of the United States

October Term, 1956

Nos. 541 and 544

ALLIED CLEANING CONTRACTORS, INC.,

Fourth-Party Defendant,

Petitioner.

v.

ALLIED MAINTENANCE CORPORATION,

Third-Party Defendant,

Respondent-Petitioner,

V.

TRANS WORLD AIRLINES, INC., Defendant and

STEVE KOZMAN, Plaintiff,

Respondents.

BRIEF OF RESPONDENT, STEVE KOZMAN, IN

OPPOSITION TO PETITIONS FOR WRITS OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

(‘HARLES L, SYLVESTER,

501 Madison Avenue,

New York 22, New York,

Counsel for Respondent, Steve

Kozman (also listed in the title

herein as “Plaintiff”).

Max J. MILLER,

JosepH B. SANSOME,

1270 Sixth Avenue,

New York 20, N. Y.,

of Counsel.

SUPREME PRINTING Co., INc., 114 Worth Street, N. Y. 13, BEEKMAN 3 - 2320

Se 49

Qereemnerer

LN 6 a OO RL

SUBJECT INDEX

PAGI

Opinions Below ......... : : 1

Statute and Regulation Involved 1

SU aU inci einen reenact y 4

Reasons for Denying the Petitions (Argument).......... 2

Ca cists emcees cennnernavnintenaintneaernaontees em 17

Table of Cases Cited

Burris v. American Chicle Co., 33 F. Supp. 104, 120

F. 2d 218 14

Graver Mfg. Co. v. Linde Co., 336 U.S. 271... 17

Houston Oil Co. v. Goodrich, 245 U.S. 440. 16

Koenig v. Patrick Const. Corp., 298 N. Y. | 12

Lavender, Admin’x v. Kurn, 327 U.S. 648....0....000- 15

Lumbra v. United States, 290 U.S. 551 15

Osborne v. Salvation Army, 107 F. 2d 929.0... 12, 15

Pollard v. Trivia Building Corp., 291 N.Y. 19... 12,18

Red rig" Cold Storage Co. v. Dep’t of Labor, 295

} Fil, ake Tab even emit meee ner ee . 1

Southern Power Co. v. N. Carolina Public Ser. Co.,

ey) Sie. eee 16

Swe “ord v. Atlantic Coast Line R. Co., 350 U. 8. 807 6

Teller v. Prospect Heights Hospital, 280 N. Y. 456.12, 13, 14

Tennant v. Peoria & P. U. R. Co., 321 U.S, 29... 15

ii

Statutes Cited

Federal Business Records Act, 28 U.S. C. § 17822...

New York Labor Law (30 McKinney’s Consol. Laws

of N. Y.)

§ 28, subd. 4 4

§ 202 1, 4, 6,7, 8,9, 10, |

11, 12,13,14,15 |

Regulation Cited

Industrial Code Rule No. 21 1, 4, 6,7, 9,10,12,13 |

Other Authorities Cited

Rule 19(b), Supreme Court of the United States... 17

Wolfson & Kurland, “Jurisdiction of the Supreme

Court” 17

hy

wl RRR ANNE ee AE SI Be ERAT ORM Rik REAR we RS Senne 7

rade

x

IN THE

Supreme Court of the United States

October Term, 1956

: Nos. 541 and 544

0)

Vv

ALLIED CLEANING Conrractors, INc.,

; Fourth-Party Defendant,

Petitioner,

v.

ALLIED MAINTENANCE CORPORATION,

; Third-Party Defendant,

Respondent-Petitioner,

A

LRU ELE TM LE LIL ANI ALES OGRE ewan

Trans Worup Arrives, [xc., Defendant and

Sreve Kozmax, Plaintiff,

Respondents.

BRIEF OF RESPONDENT, STEVE KOZMAN,

IN OPPOSITION

Opinions Below

The opinions of the Circuit Court of Appeals for the

Second Cireuit (Appendix “A” of Petition of Allied Clean-

ing Contractors) are reported at 286 FP. (2d) 527. (Ad-

vance Sheet dated October 29, 1956.)

Statute and Regulation Involved

New York Labor Law § 202 (30 McKinney's Consoli-

dated Laws of N. Y.) and Industrial Code Rule 21 of the

New York Board of Standards and Appeals are set forth

in the Petition of Allied Cleaning Contractors Inc. at page

28 and pages 44-63, respectively.

ne

JAM OS Se EL ACNE ATI BALI Sea

Statement

The majority opinion of the Court below! gives a very

clear, minute and fair statement of the relevant facts.*

For the sake of brevity, the parties herein will hereafter

be referred to by the shortened designations used in the

above opinions of the U. S. Court of Appe sts, as follows:

Respondent, Steve Kozman, the Plaintiff below, is re-

ferred to as “Kozman”; the Respondent-Defendant-Third-

Party Plaintiff, Trans World Airlines, Ine. as “TWA”;

the Petitioner-Third-Party Defendant, Allied Maintenance

Corperation, as “Allied Maintenance”, and the Petitioner-

fourth-Party Defendant, Allied Cleaning Contractors, Inc.,

as “Allied Cleaning”.

Reasons for Denying the Petitions

As we view it, the sole question presented is:

HAVE THE PETITIONERS CLEARLY DEMON-

STRATED THAT THE COURT BELOW DECIDED

AN IMPORTANT QUESTION OF NEW YORK LAW

IN A MANNER IN CONFLICT WITH THE DECI-

SIONS OF THE COURT OF APPEALS OF THE

STATE OF NEW YORK?

We submit that the foregoing is the only question of

any significance that may be presented by these Petitions.

It is noteworthy to observe that while the Petitioners seek

to invoke the certiorari jurisdiction of this Court bv at-

tempting to raise as a “Federal” question an error alleg-

edly made when the Court below approved the Trial Court’s

reception into evidence of so-called “hearsay” statements

under the Federal Business Records Act, Petitioners give

' Reproduced at pp. 22-37 of Appendix “A” of Petition of Allied

Cleaning Contractors Inc.

2 Tbid. pp. 22-25

et eee oe wre 2a << . oy wy |

no more than initial, casual and scant treatment to this

feigned “reason” in their respectiv. Petitions. In con-

trast, they rely on and devote large portions of their Pe-

titions to detailed review of the evidence and base their

arguments on the State law and court decisions—Statc

precedents which they contend were misapplied by the

Court below. It is obvious from the face of the Petitions

that there is no “Federal” question in this case and that

the Petitions are inspired by the disappointment of liti-

gants who are unhappy over an adverse decision.

Before stating our views on the question initally posed

above, Kozman respectfully directs the attention of this

Court to the fact that essentially the Petitions herein in-

volve an internecine tug of war as between the several de-

fendants. Each of them, as on the trial and in the Court

helow, seeks to avoid liability for the severe injuries sus-

tained by Kozman because of their own biased interpre-

tations of “indemnity” as between themselves. That this

is the heart of their Petitions is evidenced by the fact that

the major portions of the Petitions are devoted almost ex-

clusively to expositions of alleged issues relating to

“indemnity.”® Be that as it may, that struggle is of no

connection with Kozman. It is strictly a contest as to upon

whom, among the defendants, falls the ultimate lability

for the payment of Kozman’s favorable jury verdict.

We are not unnindful of the care and great considera-

tion given those questions by the Trial Court and by the

Court below. We submit that the holdings of the Court

below, on questions relating to “indemnity” as well as those

pertaining to the alleged “hearsay” character of the hos-

pital records and medical history statements are correct

and sound. It is significant that the Court below was unan-

3 Inasmuch as the Brief in Opposition of the Respondent TWA

has not yet been served on Kozman, we assume that its brief will

devote most of its argument to such issues.

RR ATEN acs WIE Bt CR RE i LN AIM CIR SIS ASB ASN! ABO ORS RR crore RATS

imous in its decision on these points. We submit that in

any event, whether or not the decision below was correct

with respect to the rulings pertaining to the alleged

“hearsay” testimony, this relatively unimportant testimony

was immaterial to the result and could not have substan-

tially altered the result. For these reasons we shall limit

KXozman’s brief to what we consider the only question to

be answered by him.

Petitioners contend that Kozman did not adduce suffi-

cient evidence to support his favorable verdict based on

the second cause of action alleging a violation of § 202 of

the N. Y. Labor Law.* They claim that although the only

equipment furnished to Koziman was a bare ladder (with-

out attachments or auxiliary means to prevent it from slip-

ping) and that since under Code Rule 21° (promulgated

pursuant to § 202 and having the force and effect of law) °,

a ladder was proper equipment, there was no violation of

the statute by TWA. In surport of this contention they

stress the thought that in the absence of evidence that the

ladder slipped at the bottom, the lack of “shoes” or other

auxiliary means to prevent slipping was “unimportant”.

In commenting on this phase of the case the learned

Court below said:

“The evidence is clear that the top of the ladder

slipped. Whether the bottom also slipped is not at

all clear, although at one point Kozman testified cat-

egorically that the bottom did not slip. Still the

sequence of questions and answers in which this de-

nial appears, read as a whole, seems to leave the

issue still in doubt; and at any rate Kozman, who

was standing well up on the ladder, could hardly have

* Petition of Allied Cleaning, Appendix “A”, p. 28, f.n. “2”.

5 Ibid: p. 29, f.n. “3”.

* New York Labor Law, Section 28, subd. 4.

known what happened to its feet.’* (Hmphasis

supplied.)

The foregoing is a recognition of the fact that the jury

took the testimony “as a whole” and considered all the

circumstances, including testimony relating to weather con-

ditions at the time of the accident, which testimony very

well could have supported the jury’s finding that the bot-

tom of the ladder did slip because it could be reasonably

inferred that at the time of the accident the ground might

have been wet or moist—a condition conducive to the slip-

page of the unprotected wooden legs of the ladder.

The answer to the Petitioners’ non-slippage ar

This text is long and has been trimmed here. Open the source document for the complete record.