Perkins v. Randall Electric, Inc. (129 A.D.2d 1000, 1987)

Judgment unanimously reversed on the law and new trial granted with one bill of costs to plaintiffs herein and plaintiffs in Silver v Randall Elec. (appeal No. 2). Memorandum: Plaintiffs, employees of Crucible Steel Inc. (Crucible), were seriously injured while probing a 15,000-volt power line. Crucible contracted with defendant Randall Electric, Inc. for the latter to install a new high-voltage electrical system. During the course of the renovation, plaintiffs were told to assist in placing a new feeder cable. Plaintiffs allegedly were told that a line to be checked was dead and not energized. When plaintiffs probed the line, there was an electrical explosion which seriously injured plaintiffs.

Plaintiffs sued Randall alleging gross negligence and a violation of section 241 (6) of the Labor Law—failure to provide a safe workplace. To establish that Randall was a "contractor” within the Labor Law, plaintiffs, without objection, introduced into evidence a copy of the contract between Crucible and Randall. The contract provides that Randall was responsible for phasing-in work, such as was being done at the time of the accident. Randall asserted later, however, that the parties had orally modified their contract to place responsibility for phasing-in work on Crucible, the owner. No documentation of this modification was produced. Nevertheless, the court ruled that Randall was not a contractor within the meaning of the Labor Law, removed the contract from evidence and refused to charge the provisions of the Labor Law. This was error.

A critical issue at trial was whether Randall was a general contractor responsible for providing plaintiffs a safe place to work. The contract was directly relevant to this issue (see, Page v State of New York, 73 AD2d 479, 480, affd 56 NY2d 604; Kenny v Fuller Co., 87 AD2d 183, 188-189; cf., Kerr v Rochester Gas & Elec. Corp., 113 AD2d 412, 416-418). Whether a modification occurred presented a question of fact for the jury. By withdrawing the contract on the ground that the oral modification occurred and was valid, the court invaded the province of the jury. Accordingly, a new trial is granted. (Appeal from judgment of Supreme Court, Onondaga County, Tait, J.—negligence.) Present—Dillon, P. J., Callahan, Doerr and Green, JJ.