Dullard v. Berkeley Associates Company

Berkeley Associates Company (defendant) was the owner and general contractor of a construction company. Castle Concrete Corporation (Castle) and 400 Concrete Corporation (400 Concrete) (defendants) were both subcontractors for Berkeley. Decedent Hugh Dullard worked for Castle as a labor foreman on a construction site for a high-rise building. One day, Hugh was struck and killed by a piece of lumber that fell from an undetermined source at least 10 stories above ground level. At the time of the accident, Castle had stacked wood on the twenty-ninth and thirty-first floors of the high-rise, and there was testimony that the piece of lumber fell from one of those floors. Berkeley, Castle, and 400 Concrete had not provided any overhead protection such as a sidewalk shed required by New York labor law, nor did they have any effective system to warn workers of falling objects. Brigid Dullard (plaintiff) sued Berkeley, Castle, and 400 Concrete for the wrongful death of the decedent. The trial court instructed the jury that whether Castle and 400 Concrete were in exclusive control of the instrumentality—the piece of lumber—was a question of fact. The trial court also instructed the jury that as general contractor and owner, Berkeley was in control of everything at the job site, and that the question was whether Berkeley had exclusive control of the instrumentality, the piece of lumber. The jury returned a special verdict in favor of Brigid. In addition, the jury found Berkeley 39 percent liable, Castle 26 percent liable, and 400 Concrete 35 percent liable. The construction companies appealed, arguing that the district court erred in giving the jury a res ipsa loquitur instruction.