Steven Grady v. Jones Lang Lasalle Construction Company, Inc. et al.

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This is Case 2017 0 3 7 1. Steven Grady versus Jones Lang LaSalle Construction Company, Inc. Etal Council. Good morning. May it please the court.

My name is Matthew Cox, uh, from the Burns office in Dover, and I represent the plaintiff, Steve Grady in this matter. Uh, as the court knows, the question presented is whether in the context of a construction site injury case, uh, the defendant, general contractor and property owner, uh, owe a duty of care to the injured plaintiff who was, uh, the employee of a subcontractor on the same job site. In regard to, uh, focusing on the law as it relates to the general contractor who's, as you know, is Jones Lang LaSalle, I would respectfully submit to the court that that issue is already, has already been decided, uh, by the Butler versus King case, which has been the law of the state for over 60 years now. I'd like to take a minute to just go over the parallels because in my experience, it's, it's somewhat rare that I find myself, um, with a case that is so closely on point, uh, to the case that I have, uh, at Bar. Uh, I would respectfully submit to the court that the context is nearly identical. Uh, Butler v King was a personal injury case. It arose out of an injury at a construction site. The defendant in that case was the general contractor on the construction site. The plaintiff was an employee of a con of a subcontractor of a painting subcontractor on that construction site, and the defendant, general contractor in that case, made the same argument as the defendant general contractor in this case. What was the nature of the injury in that case? Uh, the nature of the injury was that, And then the causal situation. Oh, the cause of, of the injury? Yes. Um, the cause of the injury. It's interesting. I don't know if this is why Your Honor asked, but you have to dig a little bit to get there. I think in the case, uh, the cause was that a railing gave way, uh, in an area of the project. They were renovating an old hotel in Hampton and there was evidence that sounded like a wraparound porch or a, or a long porch, and there was evidence that the general contractor had detached the, uh, east end of the rail to replace a column. So they put in an iron lolly column where there used to be a wooden pole, but that they didn't touch the West end, and that a painting contractor where, where it met the house or where it met the structure. And there was evidence in the, in the case or in the, the Supreme Court's description of the case that what happened is that a painting contractor went to the West end, which was undisturbed, leaned out to get a look at a, a, the paint on the side of the house, and that, that gave way. But it would seem to me that finding a duty in that case doesn't at all, uh, require that we find a duty in this case. I mean, I think it's, uh, not a general proposition that there can be no duty owned by an owner of real estate or by a general contractor. It really comes down to what is the purported duty and is that, uh, reasonable in light of all the risks and circumstances. I think that that's a correct statement, especially as to the last part. And I think the first part of your honor's question gets to what I understand the defendant to be arguing, which is really that butler as it applies to Butler versus King. I think the defendant characterized, uh, the decision as holding that the general contractor must have, uh, been responsible for the defect where the railing meets the structure. And I would submit that that was not this court's holding, uh, this court talked about that, and the defendant in that case was rather adamant that I never touched that area and that defect, if it existed, couldn't be attributable to me. And this is where the rubber meets the road. As far as your honor's question, the holding wasn't related to who created the defect. I think the Butler court was very careful to, to not address that issue and to say that it simply doesn't matter. They, they analyzed it from the standpoint, the same standpoint of other occupiers of property. And so the question in the, in the eyes of the Butler court, I think quite clearly was, does a hazard exist? Not did the general create the hazard. So in your view, does, uh, if a risk exists, the owner, the general and the subcontractor all are in the same position in terms of the duty owed to the employee? Is that your position? That is Your Honor. Yeah, that's correct. I think they all end up on the jury form under de Benedetto, and it's the, it's a jury question to figure it Out. So if we, I mean, just as a matter of policy, and I think it really would apply if we, if we accept that view, then, as I understand it here, the, the owner has, has a contract with the general that requires the general to indemnify the owner, and the sub has a contract with the general, which requires the sub to indemnify the general. So if we accept your, if we accept your view, the result is that the sub who has paid workers' compensation now pays damages. That, that, I mean, it doesn't that suggest that, um, you know, that, that that is kind of contrary to what the legislature had in mind, uh, with the workers' compensation statute that, you know, you, this is sort of a trade off. You get workers' compensation, but the, but the person that pays it doesn't then have to be liable for damages yet as, you know, I I assume this, this, the situation here of the contracts between the owner and the general and the general and the sub is pretty, would be pretty standard in the industry. I agree that it's standard in the industry, and I understand that the concern that Your Honor expresses, uh, I would say a, a couple of things. The, the, the first is that, uh, the, you know, tough cases can make bad law and, and the, the, uh, specific indemnity agreements, uh, between parties can be different from case to case. So I don't think that we should presume that it's complete indemnity. What I can tell you, the other thing I wanted to say in response to that is, I assume you're correct, we haven't gotten into the insurance configurations in the case yet. Uh, but I can tell you that having done this type of law for 26 years, the, um, for better or for worse, I'll just put it out there, the, the, uh, uh, subcontractor and their carrier often are brought back into the case under an indemnity agreement, and they often do pay and contribute to settlements, um, as they do also, you know, the, the, the other flip side of that is under the benedetto, I can't keep them off the jury form and they're immune. So if, if, uh, attorney bur is successful, if, if I'm fortunate enough to prevail on this appeal and the case goes in front of a jury,

I can't keep attorney Burt from putting, um, uh, a and m roofing on the jury form. And if the jury finds that they're a hundred percent at fault, I, I lose, I that's an immune party. So there, you know, the, the law giveth and the law taketh away on, on that point. Um, Is there a difference between being responsible for the risk and being responsible for a defect in the property, as in Butler, Uh, Be in this case, there wasn't a defect per se, it was a lack of proper equipment Not as applied? Uh, that's, that's a good question, your Honor. It, I I would say not as applied to this case because as your Honor knows, there was a very elaborate contract promulgated by the American Institute of Architecture that goes on for pages and pages, and it's quite expansive in the duties that, and, but, but by the way, you can opt in or opt out to any of those provisions, and Jones Lang LaSalle opted into all the ones that are before the court, and those are, those are quite expansive and they include, uh, that, that the types of activities at a construction site that I think, your Honor, is referencing the duty to monitor the workers, uh, the duty to, to monitor the, the, But, but doesn't, the, the trial court said basically that those duties run to the, in the, in the general contractor's contract, run to the owner, not to the, they were, these weren't created for the purpose of benefiting employees of the sub. Right. That is what the trial court said. That gets of course, to the privity issue, and I wanted to spend a moment on that. Uh, I would submit to the court that privity while mentioned in the Supreme Court's decisions has never been, uh, one of the more important questions that this court examines in the duty context. I can think of one case and the defendant cites it, and so did the trial court, the Jankowski case, which Your Honor may remember, uh, uh, emanates from the estate planning context, and it holds that, um, a a, a lawyer who, who delays in the execution of a will owes no duty, uh, to beneficiaries that might be harmed by that. But I don't know where that takes us, because the seminal case on the duties of an estate planning lawyer is kalivas, which says that beneficiaries, if the will, putting aside a delay in the drafting of the will, but if there's a substantive error in the drafting of the will, which is by far the more common problem, uh, the, the aggrieved heirs do have a right to sue the lawyer who drafted even though they're not in privity. So the, the, the, the, the more seminal case on the estate planning context holds just the opposite and says that privity isn't a problem. There are other cases in which the court reach reaches the same conclusion that privity is not a problem. I would call your honor's attention to the Hungerford case, which is the, the therapist patient case where, um, the defendant was a therapist whose, uh, was sued by the father of a patient, which she, which she was alleged to have done, was to fabricate, uh, a, a charge of, of, uh, sexual assault against the patient's father. And the first thing the doctor said when she came before the court is, I don't have any privity. I don't owe any duty to the father. I don't have a doctor patient relationship. And this court considered this precise issue and said, privity is not a problem. The third line of cases in which privity is not a problem is the line of cases where, uh, someone is directing traffic. Um, the kerrigan line of cases, there's more than one case, but I, I'll refer to it as the kerrigan line of cases, the International Speedway cases where someone, a person finds themself out in the middle of the road, uh, directing traffic. And obviously in that situation, the, the privity issue was raised. The defendant driver, I'm sorry, the defendant, uh, has no contractual relationship, no relationship at all, um, except legally with the, uh, with the driver. And yet the court held that that's not necessary, and that liability attaches anyway. Now, now I could see that even in the absence of privity that, um, Liberty Mutual as the owner of the building, if, uh, your client went up on the roof and fell through the roof because it was rotten, that would seem to me a very different claim and a very different duty than is alleged to have been, uh, breached here. I can you articulate for me exactly what the duty was that Liberty Mutual owed to your client that was breached? Yes, your Honor. I'd be happy to, it's to oversee there, there were many of them, but it relates to the means, methods and techniques and the tools that were applied as Your Honor knows. And Why was Liberty Mutual responsible for those? I'm sorry, Liberty Mutual. I was answering Jones Lang LaSalle. Okay, but I'm asking about Liberty Mutual. I apologize. I just, I do just wanna cite the contract as it relates to, to Jones Lang LaSalle, and I have the citation right here. Uh, section 3.3 0.1 on page 16 of, of the appendix says that the, the general contractor, and again, I apologize, this is Joan Jones, Langlasal shall be solely responsible for the means, methods, and techniques. And at the end of the day, this court's analysis seems on duty cases to be more than anything grounded in policy and fundamental Fairness. Right. But we wouldn't, we in effect, if, if we were to say, adopt your view, we would in effect would we not be saying that the general contractor has the duties of an employer, of employees of the sub, which is exactly what the whole, the general contractor wanted to avoid by hiring a sub. We would you, you want us to say that the general contractor, for example, has the kind of close supervision, so to speak, that, that an employer has over an employee? I think that's true, and I think that's what happens on construction sites. Your Honor, I, I disagree with, uh, the defendant on that point. I think that that, uh, general contractors do what this, and it's an easy case. In this case, it may be more difficult than the abstract, but this general contractor didn't have to promise to all the world in writing that it would oversee and be solely responsible for the means, methods and techniques and construction practices on the job site. And I would un, I would submit respectfully that I don't understand as a policy, uh, consideration why we would want to exonerate someone who promises to do that. Again, we're talking about duty and Well, if you cons, but if you concede that we in effect should treat the general contractor as the employer, then shouldn't the workers' compensation bar apply there too? Your, your remedy against the general contractor is to get workers' comp benefits, but not, not tort damages. Right. Well, that third party liability has been recognized for years, your Honor, and and I I would submit that, again, we're talking about duty at this, at this point in the case analytically. So the concern I would have is we don't know until we get to the fact part of it, until we get in front of a jury. What if we had a signed confession from the project manager at, at Jones Lang LaSalle that said, uh, I know I was supposed to be there that day. I was supposed to be the construction supervisor in truth, I decided to go play golf that day, and then I decided to go to a tavern and I became intoxicated. So I never went to the job site on the day that Mr. Grady was injured. I'm not suggesting for a second that we have those facts, but when we exonerate them on duty, we prevent the plaintiff from having his day in court and determine Whether those facts, but this is a summary judgment. It's not a motion to dismiss. Right, right. But it's on duty. It, it, it prevents the plaintiff from, if, if there's no duty, then it doesn't matter how egregious the defendant's conduct is, he could submit that written confession and I would have no argument because there's no duty. Right. I do wanna just briefly get back, I know I'm out of time, but I wanna get briefly get back the, it's, it's, it's a thin case, I admit, against the property owner. The concern I have here that I think the nuance that makes it different, your Honor, is that the property owner was presented with the option of proceeding during the winter months in the Fri of New Hampshire weather and said, yeah, let's go ahead and paid an extra $25,000 to do that. And I think under those circumstances, it makes it a different case as to their ability to, to throw up their hands and say, I shouldn't be held on. So Their liability should turn on the fact that the work was done in January rather than June. I think so, your Honor, at least on the facts of this case where Mr. Grady's injury occurred because they told him to take out a propane torch, or at least in the context of having to take out a propane torch and try to melt the ice on a roof in New Hampshire, uh, in the middle of February. Thank you, Mr. Bur, Your Honor. Um, may it please the court, Gary Bird on behalf of Jones Lang LaSalle and the property owner Liberty Mutual. I think it's been misstated, quite frankly as to the scope of the duty, and that's how we've kind of been, uh, led down a different path. The scope of the duty is to provide a safe workplace, IEA place where people can carry out their work so that you have railings in place that are properly attached holes on floors or on scaffolding floors that are properly covered, et cetera. However, the courts have universally said that when it gets to the method and manner of the subcontractor's work, the equipment the subcontractor uses the safety, the measures of safety that the subcontractor employs, those are not duties of the general contractor, nor for that matter, a duty of the land owner. And in fact, that's what the Butler case says. If you read the Butler case, that's exactly what it says. Justice Kenon recounts the facts there. And what happened there was the general contractor apparently had put up Lawy columns and there was a dispute of fact as to whether they had properly reattached it. And Justice Kennison said there's a dispute of fact jury decides the real issue in the Butler case was whether the employee was comparatively at fault or back then Contribu Notori negligent as a matter of law. And if he was, obviously he did not recover. And you'll see that Justice Kennison goes into a, a brief description of that issue, and then he touches upon a couple of issues. But he starts the case by saying that the employee had a right to rely upon the duty of the general contractor, and he cites three cases. And if you read those three cases, they're all landowner liability cases. Now, what he's saying, I believe there is that when the general contractor takes over the job site, he acts as a landowner essentially and has the duty of reasonable care to maintain the premises for safe contact work. So Would you acknowledge that, um, there would be a duty and a breach of duty here if the, um, employee fell through a hole in the roof? Probably. Perhaps. Uh, it's kind of hard to picture that, but yeah, I mean, a better example is if he had been walking up a scaffolding and maybe if a hole was left uncovered or A stair broke or Something like that, or wave broke. Yeah. In fact, that's, there are a lot of cases in, in those three cases cited by, uh, justice Kennison all involved, uh, uh, de defective stairs, for lack of a better word, Or as reflected in, I think it was Acadia and Pro Con where the employee was on, the sub employee was on break, correct. And slipped on the ice going to the, I don't know, the food truck or something, but wasn't engaged in the work he was hired to do for the sub. Correct. Because what's going on here, essentially is you have a large project taking place. The owner of the project says, I don't wanna be liable for any personal injury that happens on the job. So it enters into negotiations through an a i a contract with a general contractor saying, you are gonna take responsibility for this job site. You control it, you can go out and inspect and you can control the job site. I don't want any part of liability. So that's an agreement between the general and the owner. The general turns around and says to the subcontractor, you are responsible for your employee's equipment, you're responsible for the method and manner by which your employees carry forward their, uh, their obligations, their duties, and you're responsible for providing safety equipment to your employees so that they do it in a safe manner. So we're talking about the performance of the work, not a general concept of a safe workplace And the subs required to have insurance. Oh, absolutely. Usually that covers the general contractor. Yeah. And that's, and that in fact, this case, that's why I'm here because the sub had to indemnify, uh, Jones Lang Lasell, right? But it's clear that there's an allocation, for lack of a better word of responsibilities and duties to say that the general contractor has a duty is true. But the question that you're being asked to decide, and that hasn't been decided in New Hampshire, is what is the scope of that duty? Or to say it in the negative, the duty does not mean that the general has to act like the employer, as Justice Lynn suggested, and provide the safety equipment to the employee to supervise the employees as they carry forward the work, or to make sure that the equipment they use is not defective. So can the, uh, property owner here at Liberty Mutual have, uh, a, a contract and therefore there's pri uh, with the general and disclaim any duty at all, and would that effectively get rid of any duty that the owner might owe to the sub's employee? That's too broad. Um, I gave an example, uh, to the Superior Court when we were discussing this issue. Let's assume the Li Liberty Mutual site, if you've ever been there, you know it's multi, multi acres. Let's assume there's an intersection, and Liberty Mutual knows a sign, a stop sign's gone down and a motorist goes through the stop sign and smashes into somebody else. Arguably Liberty Mutual knew of an unreasonably dangerous condition upon their property and had an obligation to remedy it. And we all know that that's a nondelegable duty. They can't eliminate that obligation. Let's just change the fact one way the sign's up and the motorist goes through there and smashes into somebody in violation of the stop sign. Well, under that circumstances, no unreasonably dangerous condition on the property, but for this unreasonable motorist, and no one would suggest, and the law is quite clear that absent some extraordinary alter hazardous activity, the landowner had, landowner has any liability. I agree with you on that. But does the, a, does the landlord have the ability to absolve itself from duty through its contractual relationship with the general, It can't absolve itself because, but it can seek indemnity, right? But, but what it would be doing was protecting itself from some odd liabilities, but it still has an obligation exercise, reasonable care, and a maintenance of its property, not the method of maned by which work is being done on it any more than, for example, an HVAC technician came here to the Supreme Court and started working on the, the system and electrocuted themselves, accident accidentally because the system wasn't properly wired. Would the Supreme Court have responsibility for the method of manner if it arose out of how the work was performed as opposed to going up the steps and slipping on ice that was left to accumulate there? There's a whole world of difference. And when we talk about duty, we talk about the relationship of the parties, the risk of harm and the cost essentially to the party to address that issue. So if Liberty Mutual has to remove ice on the front, on the walkways to this building site, is it responsible for removing the ice on the roof so the work can be done? No, because that's a method and manner issue. That's a condition essentially of the work, not a cause of the injury. Um, the cause of the injury, quite frankly, clearly and unequivocally, was the gentleman didn't use flammable retardant gloves, rubber gloves, used cloth gloves to put down the solvent, which is highly Mable used a ma a, uh, lighter rather than a striker to light the torch and caught his glove on fire. The conditions that existed at the time were just conditions, they weren't causes of the incident, they were just conditions. So, um, and no Liberty Mutual wouldn't have an obligation to remove the ice so that they could perform the work. That's method and manner. That's, that's why we hire skilled contractors, quite frankly. We want them to exercise their discretion and determination and expertise to determine how best to perform the work in a safe manner. And that's exactly what's in the contract because Jones Lang Lasell said to, uh, a and m Roofing, you must provide the safety equipment. You must provide the equipment to do the job. You must decide how it's performed. We can inspect, but that inspection doesn't give a rise to a duty, uh, anymore, uh, than you might inspect The contractor's work at your home. You might go and look and see how they're doing on the job. It doesn't impose upon you a duty for that activity. Um, and that's what we talk about when we talk about duty. Again, it's an allocation of risk, benefits and liability. And we're not asking for a broad proposition here, frankly, we're just asking for what almost every other state that's considered it has concluded, which is that the general contractor has no duty to address the method and manner of the subcontractor's work. No duty to inspect tools or equipment that the employee might use provided by the subcontractor, and, uh, no duties to supervise or oversee the work in the course of its performance. When You say almost every other state has decided the way you want us to decide the case, I take it there are states that have gone the other way. I haven't, well, I will say this. If there's a very peculiar contractual relationship, and it's also kind of mirrors 3 24 a of the restatement where the general basically takes over in the contract unequivocally, then some courts, and I think the Nebraska Court in another situation said that might be a case, but that's not the factual circumstances here, um, by any stretch, in other words, where the general supplant or becomes the employer, there might be that circumstance Becomes an employer in of the, in terms of paying the employee or in terms of supervision, in All practical, well, probably in supervision providing tools or equipment stationing a, uh, safety advisor right there to make sure the work's being done properly. You know, it would have to be a very peculiar set of circumstances. And I do remember in the deep recesses of my memory coming across one case in Nebraska where they said, uh, and I think it was an oil and gas case where they were putting a pipeline or something like that. So why then wouldn't there be a trial to determine whether that was the case here? Because it was unequivocal as to what happened here. The court had before the, this contractual relationship between the parties, um, I had affidavits submitted, uh, and there was no counter affidavit to support any conclusion that there was a material dispute of fact as to those issues. It was clear that Jones Lang Lasell did not provide the equipment. Uh, Mr. Grady himself testified to that. In fact, he complained that he had told his employer we shouldn't be doing this, and his employer said, no, we gotta get it done. Secondly, he admitted that there was no Jones Lang Lasell person that he ever dealt with on the job site at all, obviously no Liberty Mutual person either. So those facts simply weren't present. And the court conclude, concluded correctly at that point that there was no dispute of material fact, and the law dictated that there would be no duty, therefore, under the circumstances this case presented to it. And if the torch had been dropped and set the roof on fire, would we follow liability in the same way? If, if the roof had got set on fire by the employee, correct, then the employee would be liable, or, and, and, and a and m Roofing would've been liable to Liberty Mutual and probably, uh, to Jones Lang Lasell under the indemnity agreements. Um, and it would go back upstream based upon the indemnity provisions essentially. And there might Be the same arguments that somehow Jones Lang, the GC had caused that As between Jones Lang and the owner maybe. And that's why Justice Lynn's correct the contract between Jones Lang and the owner directs its obligations upstream and the employee simply can't, there's actually a case right on point where they say that, that the existence of the contract doesn't allow the employee to swim upstream to establish liability. Uh, it's, it's an allocation of risks done in a commercial or construction context. Thank you. Thank you. Alright, case submitted. Uh, the court is in recess and I should know, just note for the record, uh, in this, on the case that we just heard that Justice Hicks, uh, is disqualified, uh, from this case. Alright, thank you. We'll take a brief reset.