Full opinion text
OPINION SWEET, District Judge. Plaintiffs Steven Gravatt (“Gravatt”) and his wife Delores Gravatt (“Mrs.Gravatt”) (collectively the “Gravatts”) have moved under Rule 52(b), Fed.R.Civ.P., to amend the opinion filed in this action on March 3, 1999 (the “Opinion”) directing judgment in favor of the Gravatts against defendants the City of New York (the “City”) Simpson & Brown, Inc. (“S & B”), the employer of Gravatt, and N. Massand, P.C. (“Mas-sand”), an engineering firm (collectively the “Defendants”) and in favor of the City on its cross-claim for indemnity against S & B and Massand and dismissing Mas-sand’s cross-claim against S & B. The Defendants have opposed the motion which will be granted for the reasons set forth below. A revised opinion will be filed to reflect the conclusions reached below. Prior Proceedings Gravatt’s injury on January 31, 1996, while employed as a dock worker for S & B on a job for the City, engineered by Massand, gave rise to this action, the complexity of which far exceeds the relatively simple facts surrounding the injury to Gra-vatt’s ankle. The proceedings prior to the Opinion, which regrettably failed to resolve all the issues presented, were set forth in the Opinion, pages 2-4, see Gravatt v. The City of New York, 1999 WL 111922 (S.D.N.Y. March 3, 1999), and familiarity with that Opinion and all prior decisions is presumed. See Gravatt v. The City of New York, 1997 WL 419955 (S.D.N.Y. July 28, 1997); Gravatt v. The City of New York, 1998 WL 171491 (S.D.N.Y. April 10, 1998); Gravatt v. The City of New York, 1998 WL 341941 (S.D.N.Y. June 26, 1998); Gravatt v. The City of New York, 17, F.Supp.2d 247 (S.D.N.Y.1998); Gmvatt v. General Star Indemnity Co., 1998 WL 842351 (S.D.N.Y. December 2, 1998); Gravatt v. General Star Indemnity Co., 1999 WL 212681 (S.D.N.Y. April 13, 1999). The Opinion was rendered after a trial of over ten trial days during which the testimony of nineteen witnesses was taken and hundreds of exhibits were introduced. The instant motion to amend certain of the findings of fact and conclusions of law contained in the Opinion was heard and considered fully submitted on April 21, 1999. Contributory Negligence Cannot be Attributed to Gravatt The facts found with respect to Gravatt’s contributory negligence were as follows: Gravatt contributed to his injuries. Although four drafts had been successfully removed prior to the accident, it was unsafe to use timber tongs to move the old pilings. Gravatt as an experienced dock worker knew or should have known that the work he was performing with the timber tongs was being done in a hazardous fashion. Further, Gravatt turned his back on the lift as he moved the draft of new lumber. His negligence was attributable to one-third of his injury. The Opinion, page 413. After stating the conclusion that the Gravatts were entitled to recover against the City and Massand under §§ 200, 240 and 241 of the Labor Law of the State of New York, and against S & B under § 905(b) of the Longshoreman and Harbor Workers Compensation Act (the “LHWCA”) and the maritime law, the Opinion addressed the defense of contributory negligence raised by the Defendants as follows: As found above, Gravatt was contribu-torily negligent. He was a journeyman dockbuilder i.e., a qualified and experienced dockbuilder. Although he was following instructions when he attempted to move the pile using just timber tongs, he knew or should have known that the use of timber tongs to lift the pile was unsafe. See Fuszek v. Royal King Fisheries, Inc., 98 F.3d 514 (9th Cir.1996); Jackson v. Lloyd Brasileirs Patrimonio Nacional, 324 F.Supp. 556, 563 (S.D.Tex.1970); Simpson v. Royal Rotterdam Lloyd, 225 F.Supp. 947, 950 (S.D.N.Y.1964). The Opinion, page 424. Upon reexamination, the authorities cited require a different conclusion for an employee such as Gravatt performing a task at the specific direction of his employer. As the Opinion found and the testimony established, and as stated in the companion opinion, Gerhard Holzheuer (“Hoi-zheuer”) was the S & B foreman directly supervising Gravatt and his co-worker, Thomas Liming (“Liming”), and Gravatt and Liming were complying with Hol-zheuer’s direction to use timber tongs to move old pilings in order to gain access to a new draft of lumber which was to be moved. The old pilings slipped, the load fell, and Gravatt was consequently struck as set forth in the Opinion at pages 407-408. A correct interpretation of the cases cited in the Opinion compels the conclusion that an injured worker following the orders of his supervisor is not contributorily negligent, and any award for damages should not thereby be reduced as a consequence of his acts. In Fuszek v. Royal King Fisheries, 98 F.3d 514 (9th Cir.1996), the plaintiff, a Jones Act seaman, was injured on board a fishing vessel while operating a fish processing machine. The plaintiff reached into the machine while it was operating'(a dangerous practice implemented by his employer) and seriously cut his hand. The Court reduced plaintiffs award by twenty-five percent for contributory negligence. The Court of Appeals in reversing held that the plaintiffs recovery should not be reduced because the vessel owner maintained the vessel’s equipment in violation of safety regulations. Although Fuszek involved a seaman protected by the Jones Act rather than a harbor worker protected by the LHWCA, it stands for the principle that a worker is not liable for injuries caused by following orders, as does Simpson v. Royal Rotterdam Lloyd, 225 F.Supp. 947 (S.D.N.Y.1964). There the plaintiff was a longshoreman who was injured on the defendant’s vessel while unloading cargo in Brooklyn. He fractured his ankle when a 100 pound tin ingot fell on his foot during unloading operations. The Honorable Wilfred Feinberg, then a District Judge, stated “There was no contributory negligence on the part of the plaintiff. He was in the hold working pursuant to instructions.” 225 F.Supp. at 950 (emphasis added). In Jackson v. Lloyd Brasileirs Patrimonio Nacional, 324 F.Supp. 556 (S.D.Tex.1970), the plaintiff longshoreman was injured when a malfunctioning winch caused the plaintiff to be struck by a 55 gallon drum. The Court found that the plaintiff, like Gravatt, was an experienced worker, that the defendants, like the City, Massand and S & B, knew about the defective practice, and that the plaintiff also knew about the defect. The Court wrote: In this case Jackson’s continued performance of his assigned task — knowing it to be a potentially dangerous one — did not constitute contributory negligence. He was ordered to assume the guide position by his employer’s supervisors. If Jackson had refused to perform his assigned task, it is reasonable for this Court to infer that his future employment as a longshoreman in Galveston, Texas, would have been jeopardized. As the accident occurred suddenly and without warning, Jackson did all that he could under the circumstances to protect himself from injury. 324 F.Supp. at 563. Here, a former shop steward, Matthew Quesada (“Quesada”) had complained about safety and believed that he lost his job because of his safety complaints, and Gravatt believed that too. The contract between the City and S & B specifically provided that an employee could be discharged for disobedience. “[W]henever the Commissioner shall inform the Contractor, in writing, that any employee is ... disobedient, he shall be discharged ... forthwith, and shall not again be employed upon it....” Agreement, Chap. VIII, Art. 34, at 56. In addition, Gravatt and Liming intended to move the old piles with slings instead of tongs but used the tongs because of Holzheuer’s order. In Earl v. Bouchard Transp. Co., Inc., 917 F.2d 1320 (2d Cir.1990), a seaman’s case like Fuszek, the plaintiff was a tugboat deckhand injured while following his captain’s order. The Honorable Jack B. Weinstein instructed the jury that if the plaintiff was following his supervisor’s order, he could not be found contributorily negligent, even if he knew the activity he was ordered to do was dangerous. On appeal, the defendant argued that Judge Weinstein’s instruction was fundamental error because the phrase “following orders of his supervisors” was too easily misconstrued. The Court affirmed the judgment and found no error in the jury instruction: We find no error in Judge Weinstein’s instructions, much less “plain error.” The instruction on contributory negligence was clearly in accord with the law of this circuit. Indeed, in Darlington v. National Bulk Carriers Inc., 157 F.2d 817 (2d Cir.1946), Judge Frank, writing for a unanimous panel that included Judges Swan and Learned Hand, reversed a defendant’s verdict, because the district court had refused to give this substantially similar charge: “The plaintiff was found to obey the orders of his superiors on board the vessel. The chief officer was the plaintiffs superior and plaintiff was bound to obey the orders of the chief officer. Even though the orders of the chief officer required him to work with unsafe tools or under unsafe conditions, the plaintiff was obliged to obey the orders and did not assume any risk of obedience to orders.” Id. at 819. It cannot have been plain error for Judge Weinstein to give an instruction that is so similar to the instruction that the district court in Darlington was reversed for failing to give. Earl, 917 F.2d at 1324 (quotation marks added). The previous conclusion reached in the Opinion was contrary to the relevant authority, and no contributory negligence can be attributed to Gravatt who was following a direct order causally linked to his injury. Punitive Damages Are Recoverable Against S & B The Gravatts seek amendment of the Opinion to permit a recovery of punitive damages against S & B. In the Opinion it was concluded that the acts of S & B were wanton and reckless and that it was more culpable than Massand, which was held liable for punitive damage liability under New York law (Opinion, page 425. The Opinion stated: It seems anomalous under these facts that a remedy under general maritime law cannot equal those granted (or limited) by state statute. However, the LHWCA creates a worker’s compensation scheme for certain maritime workers that is exclusive of other remedies and does not provide for punitive damages. 33 U.S.C. 901-950; see also Miller v. American President Lines, Ltd., 989 F.2d 1450, 1458 (6th Cir.1993). Accordingly, punitive damages are unavailable against S & B. Opinion at pages 425-426. The issue of the availability of punitive damages has now been more precisely illuminated by the parties. The issue is difficult and close, and distinguished judges in this district have reached contrary results, the Honorable Bernard Newman concluding that punitive damages are not available in Cochran v. A/H Battery Associates, 909 F.Supp. 911, 920-23 (S.D.N.Y.1995) (Judge Newman also concluded the proof did not support the punitive damage claim), and the Honorable Jed B. Rakoff reaching the same conclusion in O’Hara v. Celebrity Cruises, Inc., 979 F.Supp. 254 (S.D.N.Y.1997), while the Honorable Allen G. Schwartz denied a motion to strike a similar punitive damage claim in a maritime cause in Taylor v. Costa Cruises, Inc., et al., 90 Civ. 2630(AGS), unreported opinion, filed March 14, 1996, relying on his analysis of Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). Both the Gravatts and S & B agree on the legal issue, ie., whether an award of punitive damages is permissible under general maritime law in a case involving non-fatal injuries to a harbor worker. S & B contended that Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) and cases interpreting it, including Wahlstrom v. Kawasaki Heavy Industries, Ltd., 4 F.3d 1084 (2d Cir.1993), bar a punitive damages recovery-under the general maritime law, and in the Opinion it was concluded that under the LHWCA the same conclusion should be reached. However, the Opinion also concluded that Miles does not preclude an award of punitive damages on all claims arising under the general maritime law. On closer examination, it is now concluded Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), and Kawasaki, 4 F.3d 1084, do not compel acceptance of S & B’s argument. Kawasaki involved a wrongful death action of a pleasure boat operator, i.e., not a traditional seaman or harbor worker. This Court concluded in the Opinion: Massand and S & B rely on the reasoning of the Supreme Court’s decision in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), and dicta in the Second Circuit’s decision in Wahlstrom v. Kawasaki Heavy Industries Ltd., 4 F.3d 1084 (2d Cir.1993), for the proposition that punitive damages are not available in cases brought under general maritime law. While punitive damages against S & B are not appropriate in the instance case, Massand and S & B overstate the Supreme Court’s holding in Miles. In Miles, the Court held, inter alia, that damages recoverable in an action for the wrongful death of a seaman do not include loss of society. See Miles, 498 U.S. at 37, 111 S.Ct. 317. In reaching this conclusion, the Court articulated principles of uniformity relevant to wrongful death actions, and more generally, to maritime tort law, which have moved subsequent courts to limit recovery in other similar contexts. See e.g., CEH, Inc. v. FV Seafarer, 148 F.R.D. 469, 472 (D.R.I.1993) (collecting cases). The Supreme Court’s decision in Miles, however, does not enunciate an absolute bar to recovery of punitive damages in all general maritime cases. Indeed, Miles does not signify a case for “universal uniformity of maritime tort remedy,” but rather “emphasizes the importance of uniformity in the face of applicable legislation.” CEH, Inc. v. FV Seafarer, 70 F.3d at 700. The concern expressed in Miles was not with respect to nonpecuniary damages in maritime cases in general, but with inconsistency with statutory law; “[i]n this era, an admiralty court should look primarily to these legislative enactments for policy guidance ... [and] must be vigilant not to overstep the well-considered boundaries imposed by federal legislation.” Miles, 498 U.S. at 27, 111 S.Ct. 317. As the Supreme Court later held in Yamaha Motor Corp. U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996), “[w]hen Congress has prescribed a comprehensive tort recovery regime to be uniformly applied, there is no cause for enlargement of the damages statutorily provided.” 516 U.S. at 215, 116 S.Ct. 619. Opinion at pages 425-426. The anomaly of allowing punitive damages against Massand and not against S & B was recognized but it was concluded that the LHWCA, as a worker’s compensation scheme, compelled this result. However, the legislative history of the LHWCA casts doubt on that conclusion. Congress apparently anticipated that the 905(b) action would place the vessel owner in the same position as a land-based third-party. The purpose of the [1972] amendments [to the LHWCA] is to place an employee injured aboard a vessel in the same position he would be if he were injured in non-maritime employment ashore, insofar as bringing a third party damage action is concerned, and not to endow him with any special maritime theory of liability or cause of action under whatever judicial nomenclature it may be called, such as “unseaworthiness,” “non-delegable duty,” or the like. H.R. Rep. 92-1441, at 4703 (1972), U.S.Code Cong. & Ad.News 1972. It thus appears that Congress did not intend to create the anomalous result reported in the Opinion. Indeed, in Miles, a seaman was murdered aboard ship in state territorial waters. A claim for both survival and wrongful death damages alleged negligence under the Jones Act and for unseaworthiness under general maritime law. The Supreme Court held that a non-dependent parent cannot recover loss of society damages and that the decedent’s lost future income is not recoverable to the estate. The Supreme Court ruled that the applicable federal statutes, Death on the High Seas Act, 46 U.S.C. § 761 et seq. (“DOHSA”) and the Jones Act, 46 U.S.C.A. § 688, limit damages to “pecuniary loss” in seamen’s wrongful death and survival actions and, thus, precluded the murdered seaman’s mother from recovering “non-pecuniary loss, such as loss of society,” in a general maritime law action. Miles, 498 U.S. at 20, 111 S.Ct. 317, quoting, Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). The Second Circuit in Kawasaki, where non-dependent parents of a recreational boater sued for non-pecuniary damages held that non-pecuniary loss of society damages were not available to non-dependent parents under general maritime law. Turning to punitive damages, the Second Circuit held that punitive damages, like loss of society, are “non-pecuniary” and, therefore, are unrecoverable in a wrongful death action based on general maritime law. The Court stated: We are in general agreement with the view that plaintiffs who are not allowed by general maritime law to seek non-pecuniary damages for loss of society should also be barred from seeking non-pecuniary punitive damages. 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 Kawasaki, 4 F.3d at 1094. The Gravatts contend that the corollary to this rule is that plaintiffs who are entitled to seek non-pecuniary damages for loss of society should be allowed to seek non-pecuniary punitive damages, citing American Export Lines v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980) where it was held that non-pecuniary loss of society damages are available to the spouse of a harbor worker injured in state territorial waters: The question in this case is whether general maritime law authorizes the wife of a harbor worker injured nonfatally aboard a vessel in state territorial waters to maintain an action for damages for the loss of her husband’s society. We conclude that general maritime law does afford the wife such a cause of action. Alvez, 446 U.S. at 275-76, 100 S.Ct. 1673. In the interest of congruence between state and federal law under the authorities cited above, and the requirements of justice under the particular facts of this case driven by questions of coverage, the conclusion stated in the Opinion must be amended to grant judgment against S & B on behalf of Gravatt on his claim for punitive damages. Having previously concluded Massand’s liability to be $200,000 and S & B to have more culpability than Massand (Opinion, pages 425^426), an award of $400,000 in punitive damages against S & B is appropriate. As set forth in the Findings of Fact in the Opinion, while Massand’s principal dereliction was its failure to comply with contractual and statutory requirements and to provide inspection, particularly at the time of the action (Opinion, pages 403-405, 407), S & B’s reckless conduct included not only the failure to meet the relevant safety requirements, but the particular instruction to use an unsafe procedure which resulted in the injury to Gra-vatt (Opinion, pages 399^102, 408-409). The Conclusion with Respect to Pain and Suffering is Controlling The Opinion at page 414 found that $200,000 would -compensate for past pain and suffering, and that $150,000 would compensate Gravatt for future pain and suffering. It was concluded at pages 424-425 of the Opinion that these amounts were respectively $300,000 and $200,000. The conclusions are correct and the findings are an unhappy error resulting from the drafting process. The Conclusions and Findings with Respect to Pain and Suffering and Household Services are Supported by the Evidence Gravatt has moved to amend the conclusions with respect to pain and suffering, setting forth for the first time a number of state court cases in which plaintiffs with allegedly comparable injuries received greater awards than set forth in the Opinion. Those differences are narrowed by the arithmetical corrections set forth above. Massand has distinguished Gra-vatt’s cases on the facts and has noted the absence of any appellate authority. S & B has set forth a number of cases with allegedly comparable injuries and lower awards. After consideration of these authorities and both Gravatt’s injuries and the condition of his ankle prior to January 31, 1996, the conclusions set forth in the Opinion as to past and future pain and suffering are supported by the record. The Gravatts cite Mrs. Gravatt’s testimony to support their claim of household services lost as a consequence of Gravatt’s injury. However, his injury, though permanent, affects only the mobility of his ankle and does not preclude performance of the tasks described by Mrs. Gravatt. In addition, Gravatt testified to performing certain household duties and to successful hunting trips on a number of occasions, an activity not inconsistent with mowing the grass. The record, viewed as a whole, supports the finding that there was no significant loss of household services. Conclusion The motion of the Gravatts to amend the Opinion is granted in part and denied in part as set forth above. A revised opinion reflecting this disposition is filed herewith. Submit judgment on notice. It is so ordered. OPINION Plaintiffs Steven Gravatt (“Gravatt”), a journeyman dock worker and his wife Delores Gravatt (“Mrs.Gravatt”) (collectively the “Gravatts”) have sought damages from defendants The City of New York (the “City”), Simpson & Brown, Inc. (“S & B”), the employer of Gravatt, and N. Massand, P.C. (“Massand”), an engineering firm, arising out of an injury Gravatt received while working on the City’s 145th Street Bridge (collectively, the “Defendants”). The City has cross-claimed against S & B and Massand and Massand has cross-claimed against S & B. Upon the findings of fact and the conclusions of law set forth below, judgment will be entered in favor of Gravatt and Mrs. Gravatt against the City, Massand and S & B. Judgment will be entered in favor of the City on its cross-claim for indemnity against S & B and Massand. Massand’s cross-claim against S & B will be dismissed. The Issue A relatively simple accident has given rise to a complicated litigation in which five causes of action are alleged against three corporate defendants with a web of cross-claims asserted among the defendants. Because of the uncertainties of the law and the conflicting views of insurance coverage, it has not been possible to accomplish a simple and just resolution by compromise and common sense. The complicated findings and conclusions set forth below result from the inability of insurers to agree on questions of coverage. It is that expensive offstage controversy which has driven this litigation, conducted by skilled and able lawyers for each of the parties. Once again, the Court has been cast into “The Devil’s Own Mess.” Indeed, to obtain a just result for the Gravatts it has become necessary to deal with some of the most exasperating issues in tort law, complicated by difficult legislation and precedent as will be apparent from what follows. Prior Proceedings This action was commenced on January 16, 1997 by a complaint which set forth five causes of action: (1) liability of the City and Massand under the Labor Law of New York and federal law; (2) common law negligence against S & B and Mas-sand; (3) a seaman’s maritime claim based upon an unseaworthy vessel against S & B; (4) a claim against S & B as owner of the barges for negligence, defective maintenance and improper working conditions; and (5) loss of consortium by Mrs. Gravatt. Answers were filed and pretrial proceedings and discovery were had. An opinion of April 6, 1998 (the “April 6 Opinion”) resolved summary judgment motions holding that the Gravatts were entitled to judgment against the City and Massand under New York Labor Law §§ 200, 240(1), and 241(6) with the issue of contributory negligence under §§ 200 and 241(6) reserved for trial, and that the Gra-vatts stated claims under Section 905(b) of the Longshore and Harbor Worker’s Compensation Act, 33 U.S.C.A. §§ 901-950 (“LHWCA”), and the Jones Act, 46 U.S.C.A. § 688, that the City is entitled to indemnity from Massand and S & B, that Massand is not entitled to indemnity from 5 & B with Massand’s contribution claim against S & B reserved for trial. See Gravatt v. The City of New York, 1998 WL 171491 (S.D.N.Y. April 10, 1998). Thereafter, all of the defendants moved for reargument and two of them (the City and S & B) also sought an order certifying the Opinion for an interlocutory appeal pursuant to 28 U.S.C.A. § 1292(b). The opinion of June 24, 1998 denied the motion for certification, denied Massand’s motion for indemnity against S & B, dismissed S 6 B’s claims for indemnity and contribution against Massand, denied the City’s motion to reconsider the application of the Labor Law to the action, granted S & B’s motion to dismiss the plaintiffs’ Jones Act claim, and amended the identity of the insurance company providing certain coverage to Massand. See 1998 WL 341941 (S.D.N.Y. June 26, 1998). Massand then made a second motion to reargue the Court’s decision regarding Massand’s contribution claims against S & B. The opinion of August 19, 1998 dismissed Massand’s second motion to rear-gue as moot, noting that Massand’s indemnity claim against S & B had been dismissed, not its contribution claim. See 17 F.Supp.2d 247 (S.D.N.Y.1998). Prior to trial, the parties consented to a bench trial which commenced on November 30, 1998, and continued through December 4, 1998. The Gravatts called seventeen witnesses. S & B called two expert witnesses and the City called no witnesses. Final argument and submissions were completed on February 3, 1999. On March 3, 1999, an opinion was filed containing findings of fact and conclusions of law based upon the bench trial (the “Opinion”). The Gravatts then moved under Rule 52(b) to amend the Opinion, which motion was granted by a companion opinion filed this date, setting forth the basis for the revisions contained in this revised opinion. Findings of Fact The Parties Gravatt is a New Jersey resident and a journeyman dock builder and harbor worker who has worked for S & B since 1993. Gravatt has been married to Mrs. Gravatt for over seventeen years. Gravatt suffered severe, permanently disabling injuries while working at the 145th Street Bridge in Manhattan on January 31, 1996. He was 37 years old at the time of the accident. The City of New York is a municipal corporation which maintains the New York City Department of Transportation in which there is a division formerly known as the Bureau of Bridges, now known as the Division of Bridges. S & B is a New Jersey construction company. Massand is a New York engineering firm. The Project In late 1992, the Bridge Component Rehabilitation Section began a project in Manhattan to replace the fender systems on the Third Avenue and 145th Street Bridges which span the Harlem River (the “Project”). The fender system is a structure that looks like a pier which is attached to and surrounds the stone and mortar center stanchion of the bridge and consists of heavy pilings and timbers, and smaller, horizontal and diagonal pieces of lumber known as walers and braces for the purpose of protecting the bridge from collisions with ships traveling in the river. Its construction required the démolition and removal of the old, existing fender and some excavation of the river bottom. The two bridges which were the subject of the Project are owned by the City and the Project was funded entirely by the City without state or federal financial aid. It was completed in 1996. The City hired two contractors to perform the Project: a consulting engineer, Massand, to provide engineering, design, and other services; and S & B to do the construction. The City entered into a written contract with each defendant contractor. The contracts were awarded by competitive bidding, and Massand and S & B were the low bidders on their respective contracts. The Contracts Compliance with state and federal safety statutes was a standard practice of City construction projects. The contracts with Massand and S & B contained numerous safety provisions. The contract between the City and S & B was entered into on May 7, 1992. It contained the following provisions: Labor Law Requirements. The successful bidder [Simpson & Brown] will be required to comply strictly with all Federal, State and local labor laws and regulations, including but not limited to providing on-the-job training opportunities and payment of prevailing wages. Article 5. Compliance with Laws. The Contractor must comply with all local, state and federal laws, rules and regulations applicable to this contact and to the work to be done hereunder, including, but not limited to, the Federal Occupational Safety and Health Act of 1970 [“OSHA”] the Construction Safety Act of 1969, as amended, and the following. ... Article 30. The Resident Engineer. The Resident Engineer shall be the representative of the Engineer at the site, and, subject to review by the Engineer, shall have the power, in the first instance, to inspect, supervise and control the performance of the work.... Article 36. Labor Law Requirements. The Contractor must strictly comply with all applicable provisions of the New York State Labor Law, as it may be amended and supplemented thereto, and the provisions of Section 343-9.0 of the New York City Administrative Code, as amended.... Article 36(b). That no part of the work, labor or services shall be performed or rendered by the Contractor in any plants, factories, buildings or surroundings or under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of the contract. Compliance with the safety, sanitary and factory laws of the State in which the work is to be performed shall be prima facie evidence of compliance with this subsection. That for any breach or violation of any of the paragraphs on working conditions and minimum wages above, the party responsible therefor shall be liable to The City for liquidated damages ... in addition, the Commissioner shall have the right to cancel the contract for any violation of this section and enter into other public letting, charging any additional cost to the original Contractor. ... Any breach or violation of any of the foregoing shall be deemed a breach or violation of a material provision of this contract, and ground for cancellation thereof by the City. Paragraph 1.06.22. Contractor’s Plant. The Engineer shall have the right to reject or condemn any plant, apparatus, staging or other appliance which, in his opinion, is unsafe, improper or inadequate. Whether or not the Engineer exercises this right, the Contractor shall not be relieved from his sole responsibility for the safe, proper and lawful construction, maintenance and use of such plan, apparatus, staging or other appliance or for the adequacy of such plant.... Paragraph 1.06.23. Rules, Laws, and Requirements. (A) The Contractor shall, at his own cost, obtain all necessary permits, give all necessary notices, pay all legal fees and comply with all Federal, State and City Building and Sanitary Laws, ordinances and regulations applicable to this contract and to the work to be done hereunder.... Superintendence. Prior to commencement of the contract, the Contractor shall designate, in writing, Superintendents responsible for the contract work. A Superintendent must be on each job site continuously and will not be changeable [chargeable] to this contract and shall be considered as overhead.... The contract between the City and Mas-sand was entered into on August 26, 1992, and contained the following safety provisions. (a) Paragraph 5. The Engineer [Mas-sand] shall ascertain the standard practices of the City prior to the execution of any of the work required by this Agreement. All work under this agreement shall be performed in accordance with these standard practices and the provisions of the contract documents. The contract documents shall be deemed to include this agreement, with accompanying schedule or schedules, if any, the construction contracts, and any supplements thereto, the standard Bureau of Highway Operations specifications, the plans of the project, any addenda to the plans, and project, and all the provisions required by law to be inserted in the Agreement and made a part hereof. (b) Paragraph 6. The Engineer shall, upon written notice to commence work, take full charge of the Engineering Inspection of the project. The Engineer shall thereafter initiate all necessary orders to the Contractor(s), personally give field orders when necessary.... (c) Section III. Resident Engineering Inspection Services to be Performed. (A) The Engineer shall provide continuous resident engineering inspection services, testing of materials services, design services, and shop drawing review services with a staff commensurate with the level of construction activity until completion and final acceptance of the Construction Contract work.... (d) Section I. General Requirements. (B) The Engineer specifically agrees that: (a) his subcontractors, agents or employees shall possess the experience, knowledge, and character necessary to qualify them individually for the particular duties they perform; (b) he will comply with the provisions of the Labor Law and all State Laws and Federal and local statutes, ordinances and regulations that are applicable to the performance of the Agreement.... (e) Section II. Resident Engineering Inspection — General. (A) The Engineer shall be the representative of the Department at the sites and, subject to review by the Commissioner or his duly authorized representative, shall have the power, in the first instance, to inspect the performance of the work.... (f) Section II. Resident Engineering Inspection — General. (B) The Engineer agrees that he will endeavor to safeguard the City against deficits and deficiencies in the work and that he will use reasonable care and reasonable powers of observation and detection in determining that the work conforms to the Construction Contract documents. (g) Section II. Resident Engineering Inspection — General. (C) It is the responsibility of the Construction Contractor(s), and not the responsibility of the Engineer, to determine the “Means and Methods of Construction”, as defined in Article 2, Paragraph 17 of the Agreement section of the Standard Specifications of the Bureau of Highway Operations, dated June, 1986, as currently amended. However, if the Engineer reasonably believes that the means and methods of construction proposed by the Construction Contraetor(s) will constitute or create a hazard to the work, or to the persons or property, or will not produce finished work in accordance with the terms of the Construction Contract, such means and methods must be reported to the Commissioner, or to his duly authorized representative. (h) Section III. Resident Engineering Inspection Services to be Performed. (A) The Engineer shall provide ... basic resident engineering inspection services for all items of work under the Construction Contract.... These services are to include monitoring of the Construction Contractor’s activities for conformance with the contract documents, coordination with City Agencies and public and private utilities, and monitoring the condition of the contract site for conformance with the contract documents, so as to provide a safe environment for both workers and the general public.... (i) Section IV. Fees and Payments. (G) If the Construction Contractor performs the work in such a manner, or at such a number of simultaneous locations, as to require the Engineer, under the direction of the Commissioner, to provide additional inspectors such that the total inspection manpower, in person-days, shown on Table, will be exceeded, then this condition will be considered a change in the scope of this contract and a change order will be issued, subject to the approval of the Director of the Office of Management and Budget, increasing the maximum fee.... (j) Appendix A. 4.8 Compliance with Law. Contractor shall render all services under this Agreement in accordance with applicable provisions of federal, state and local laws, rules and regulations as are in effect at the time such services are rendered. The City and Massand contract provides that Massand’s duties “specifically do not include the choice of construction labor, materials, temporary structures, tools, plants and construction equipment, or the method and time of their use.” Massand Agreement, Paragraph 2 at 1. The Massand contract further provides that “it is the responsibility of [S & B], and not the responsibility of the engineer, to determine the ‘Means and Methods of Construction’, as defined in [the S & B Contract].” Massand Agreement, Section 11(C) at SR-3. Under the contract between the City and S & B, S & B was responsible for the “means and methods of construction,” defined in the S & B contract as “the labor, materials in temporary structures, tools, plant and construction equipment, and the manner and time of their use, necessary to accomplish the result intended by this contract”. Agreement, Art. 2.18, at 31. The contract between the City and S & B also provided that “the means and methods of construction shall be such as [S & B] may choose; subject, however, to the engineer’s right to reject means and methods proposed by the contractor which will constitute or create a hazard to the work, or to persons or property ...” Agreement, Art. 4, at 32, and that “[t]he engineer’s approval of [S & B’s] means and methods of construction, or his failure to exercise his right to reject such means or methods, shall not reheve [S & B] of his obligation to accomplish the result intended by the contract ...” Agreement, Art. 4, at 31, and that “[d]uring performance and up to the date of final acceptance, [S,& B] must take all reasonable precautions to protect the persons and property of others from damage, loss, injury or death resulting from his or his sub-contractor’s operations under this contract, except such property as the owners thereof may themselves be under legal duty to protect.” Agreement, Art. 7, at 34. The City and S & B’s contract later confirms S & B’s safety duties under article 7 of the S & b contract, by providing that “[t]he Contractor shall protect the work, persons and property in accordance with the provisions of article 7 of the Agreement ...” Agreement, General Provisions, Section 1.06.28 at 110. The City and S & B contract further provides that the “Engineer shall have the right to reject or condemn any plant, apparatus, staging or other appliance which, in his opinion, is unsafe, improper or inadequate. Whether or not the engineer exercises this right, [S & B] shall not be relieved from his sole responsibility for the safe, proper and lawful construction, maintenance and use of such plant, apparatus, staging or other appliance or for the adequacy of such plant.” Agreement, General Provisions, Section 1.06.22 at 104. The Massand Contract further provides that Massand “shall be the representative of [the City] at the sites and, subject to review by [the City] or [its] duly authorized representative, shall have the power, in the first instance, to inspect the performance of the work, as delineated in article 30 [of the S & B Contract]”. Massand Agreement, Section 11(A) at SR-3. S & B was required to follow orders given by the City or Massand. The resident engineer, who was employed by Mas-sand, worked from an office near the Third Avenue Bridge and was in charge of field activities. The inspectors answered to the resident engineer. The resident engineer was a licensed engineer, but the inspectors, like S & B’s supervisory personnel, were not licensed engineers and had no training in construction site safety. The Massand inspectors were required to be at the job site whenever S & B was working. The contract required Massand to provide “continuous” services with a “staff commensurate with the level of construction activity.” Massand Agreement, Section 1(A) at SR-1. The Massand contract obligated Mas-sand to “provide a safe environment for both workers and the general public,” and the S & B contract, which was incorporated into Massand’s, stated that Massand had the “power ... to inspect, supervise and control the performance of the work.” Massand Agreement, Section 111(A) at SR-5; Section 11(A) at SR-3. The two Massand inspectors who worked at the 145th Street Bridge confirmed that their duties included the supervision of worker safety at the job site. They prepared written inspection reports daily in the course of their employment at the 145th Street Bridge. Many of the daily inspection reports contained notes of safety instructions and recommendations given by the inspectors to S & B relative to conditions on the site. The City retained the right under the contracts to compel compliance with safety regulations and its Project Engineer had the authority to, and would, direct that safety problems be cured. On at least one occasion, the City and Massand stopped work at the site and would not allow S & B to resume work until safety violations were cured, as demonstrated in the following entry in Massand’s daily work log: Contractor was instructed to clean & clear all walk-ways & access to the barge & also to correct the position of the ladder & remove all debris & other construction material so as to give clear & hazard-free access while moving within & around the working area. Contractor was given permission to start working after compliance of the above instructions. In general, the City allowed Massand to have a single inspector at the project at any given time, the exception being when there was considerable construction activity, which was not the case on the day of Gravatt’s accident. The City required both S & B and Mas-sand to comply with the New York State Labor Law, New York Industrial Code, and OSHA, but made no effort to determine whether these companies knew anything about the state and federal regulations regarding construction site safety. No one assigned to this project by Mas-sand or S & B had any knowledge of, or experience or training in, the safety statutes incorporated in the City’s contracts. Massand, however, represented to the City in its contract that its employees “possessed the experience, knowledge, and character necessary for the particular duties they perform.” Massand Agreement, Section 1(B) at SR-2. Massand’s contract required Massand to “[monitor] the condition of the contract site ... so as to provide a safe environment for both workers and the general public.” Massand Agreement, Section 111(A) at SR-5. Massand has contended that the thirty-two examples that follow this provision of the contract concerned activities that were not involved in the accident at issue and therefore indicate that Massand had no duty to supervise the condition of the barges or the use of timber tongs. However, the examples are introduced by the contract language that “may include, but shall not be limited to the following,” and do not alter the contract clause that places on Massand the duty to provide the workers with a safe place to work. In addition, Massand was authorized to “reject means and methods ... which ... will constitute or create a hazard ... to persons or property.” Mas-sand Agreement, Section 11(C) at SR-3. Massand’s contract with the City incorporated the City’s contract with S & B. See Massand Agreement, Paragraph 5 at 2. When read together with S & B’s contract, Massand had the duty to stop unsafe means and methods of construction. In the section of the contract that describes the “Powers of the Resident Engineer, the Engineer, and the Commissioner,” the resident engineer and the engineer, both of whom are Massand employees, are given broad powers: Article 30. The Resident Engineer. The Resident Engineer shall be the representative of the engineer at the site, and, subject to review by the engineer, shall have the power, in the first instance, to inspect, supervise and control the performance of the work ... Article 31. The Engineer. The Engineer, in addition to those matters elsewhere herein delegated to the Engineer and expressly made subject to his determination, direction or approval, shall have the power, subject-to review by the Commissioner: (1) to determine the amount, kind, quality, and location of the work to be paid for hereunder; (2) to determine all questions in relation to the work, to interpret the Contract Drawings, Specifications, and Addenda, and to resolve all patent inconsistencies or ambiguities therein; (3) to determine how the work of this contract shall be coordinated with work of other contractors engaged simultaneously on this project, including the power to suspend any part of the work, but not the whole thereof ... * * * * * * The foregoing enumeration shall not imply any limitation upón the power of the Engineer, for it is the intent of this contract that all of the work shall generally be subject to the determination, direction and approval, except where the determination, direction or approval of someone other than the Engineer is expressly called for herein. * * * * * * Article 4. Means and Methods of Construction. Unless otherwise expressly provided in the Contract Drawings, specifications and Addenda, the means and methods of construction shall be such as the Contractor may choose; subject, however, to the Engineer’s right to reject means and methods proposed by the Contractor which: a. will constitute or create a hazard to the work, or to persons or property.... The description of the resident engineer’s powers gave Massand the “power ... to ... supervise and control ... the work,” and, as engineer, to “suspend any part of the work” and reject means and methods of construction that “create a hazard ... to persons or property.” Agreement, Art. 4 at 32. The powers given to Massand are broad because it is the “intent of this contract” that “all of the work ... be subject” to Massand’s direction. In addition to the power to reject hazardous means and methods of construction, the contract provided the engineer with other sweeping powers and responsibilities: Paragraph 1.06.22. Contractor’s Plant. The Contractor may occupy with his construction plant any unused location within the area controlled by the Department, subject to the approval of the Engineer. If the- Contractor desires to use additional area outside of that controlled by the Department, he shall arrange for such area at his own expense. The location of the Contractor’s stationary and mobile equipment shall be subject to the Engineer’s approval ... The Engineer shall- have the right to reject or condemn any plant, apparatus, staging or other appliance which, in his opinion, is unsafe, improper or inadequate. Whether or not the Engineer exercises this right, the Contractors shall not be relieved from his sole responsibility for the safe, proper and lawful construction, maintenance and use of such plant, apparatus, staging or other appliance or for the adequacy of such plant. All materials shall be properly stacked in convenient places adjacent to the site, or where directed, and protected in a satisfactory manner. All stacking of materials on streets shall be done in compliance with local laws and ordinances. If it should become necessary to remove and restack materials to avoid impeding the progress of any part of the work, or for any other reason deemed sufficient by the Engineer, the Contractor shall remove and restack such materials, as directed, at his own expense. * * * * * * Paragraph J. Scaffolding and Ladders. The Contractor shall furnish and securely set scaffolding, platforms and ladders required for the erection and inspection of his work. All such facilities shall be of good, sound materials, adequately dimensioned, substantially braced and tied, and shall be approved by the Engineer. The contract placed Massand in control of the job site, especially over safety matters. The City made safety a material term of the agreement and gave Massand all powers necessary to enforce safety standards. Article 36. Labor Law Requirements. 3(b). [N]o part of the work, labor or services shall be performed or rendered by the Contractor in any plants, factories, buildings or surroundings or under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of the contract. 3(c). Any breach or violation of any of the foregoing shall be deemed a breach or violation of a material provision of this contract, and ground for cancellation thereof by the City. Massand has suggested that the term “Engineer” in S & B’s contract refers to the City, while that same word in Mas-sand’s contract refers to Massand. However, the definition section of S & B’s contract provides: 13. “Engineer” shall means the person so designated in writing by the Commissioner to act as such in relation to this contract, including a private engineer as the case may be. The Commissioner (defined as the Commissioner of the Department of Transportation or his representative) designated Massand as the “Engineer” in writing when the City signed Massand’s contract (after signing S & B’s). THIS AGREEMENT ... by and between the City of New York, hereinafter called “The City,” acting by and through the Commissioner of Transportation of the City of New York, hereinafter called “The Commissioner,” and Nanik Mas-sand, P.E .... herein called “The Engineer” ... Massand is the “Engineer” in both contracts. This is confirmed by another definition in S & B’s contract. 21. “Resident Engineer” shall means the representative of the Engineer duly designated by him in writing to be his representative at the site of the work. Like its contract with Massand, the City’s, contract with S & B required S & B to comply with federal, state, and local safety codes. S & B, like Massand, did not know these laws and did not attempt to become familiar with them. The Performance of the Contracts Under the contracts as set forth above, S & B was solely responsible for the means and methods of the performing the work on the Project. Massand prepared the plans for the construction of the fender system for both the Third Avenue and 145th Street bridges. In addition to engineering and design services, Massand also performed non-engineering services, including daily on-site inspection of construction activities and safety supervision. Massand hired a resident engineer to supervise the contract and also hired inspectors to work at each job site to supervise and to make sure that the construction work was performed according to the plans and performed safely. In order to perform its contract and complete the Project, S & B removed the old fender from around the center stanchion of each bridge, excavated the river bottom as needed, and installed the new fender system on each bridge. S & B’s contract with the City was on a time and material basis. To accomplish the fender replacement S & B used at least three barges: a crane barge and two material barges. Sometimes S & B had a fourth barge at the job site. The number of barges employed at the job site was S & B’s decision. The crane barge provided working space for the crane, gear, and tools that were needed to pull out the old pilings and timbers, install the new pilings and timbers, and excavate as needed. It provided space for materials and a shanty in which Massand inspectors and engineers occupied a desk. The crane also loaded and unloaded the material barges. S & B rotated barges using one barge to carry old material away from the job site (the debris barge) and another to carry new material to the job site (the material barge). S & B on occasion placed debris on the material barge before it was emptied of new material. Although S & B usually kept the new material and debris on separate barges, it was standard procedure to dump debris on top of and around new material on the material barge. The old pilings constituted much of the debris. The material and debris barges traveled to and from Port Newark, New Jersey, on a regular basis and were moved from location to location at the job site. The crane barge and the material barges were necessary and integral to the Project. When removing stone from the river, S & B dedicated a barge to the sole purpose of removing debris. No evidence was presented that would have precluded S & B from doing the same with respect to the debris resulting from the demolition of the old fender system. The proper way to move pilings to and from the barges is to use timber tongs which resemble outsized ice tongs which are attached to a chain hung from the headache ball of the crane to lift the pile up a foot or so, lower it onto a “sleeper,” remove the tongs, wrap a chain, choker, or sling around the pile, and then raise the pile with the crane. A sleeper is a block, usually a piece of wood, used as a wedge or spacer to elevate a load slightly for the purpose of creating room beneath the load to allow a sling or choker to pass under it. S & B had a Safety Director, Eugene Reardon (“Reardon”), who reported to the company’s safety committee and drafted S & B’s safety handbook and safety manual and organized the weekly distribution of safety memos to the workers at the job site. Reardon had no training in construction site safety. Robert Branston (“Branston”) was the S & B project superintendent for the fender system repair, and the senior-most S & B employee at the job site in charge of safety. He had no training in construction site safety. Gerhard Holzheuer (“Holzheuer”) was the S & B foreman for the Project and Gravatt’s immediate superior. He also lacked training in the New York Labor Law, New York Industrial Code, and OSHA. His safety training was limited to the information contained in weekly safety memos that were sent to him by Reardon to be read to the workers every payday. Reardon, Branston, and Holzheuer had never seen the contract with the City and did not know what safety codes applied to the job. Branston testified that he “went through” the contract, but he also testified that he had no training in construction site safety, including the New York Labor Law, New York Industrial Code, and OSHA. Branston did not attend the weekly safety meetings, although required to do so, and did not read S & B’s safety handbook until sometime after Gravatt’s injury. S & B never asked Reardon to review the contract from a safety director’s point of view. The City knew or should have known that its contractors were not familiar with the safety provisions of the contract. The Project Engineer for the Bridge Component Rehabilitation Section of the Department of the Transportation of the City, Jose Cúbelo (“Cúbelo”), advised S & B and Massand that S & B was working in an unsafe manner, and also advised Henry Smith, Acting Director of the Bridge Component Rehabilitation Section (“Smith”). The City took no action to enforce the S & B or Massand contracts. The City had no safety program in place and made no effort to ensure that safety was observed at the job site. Cúbelo told Branston of S & B and Forde Coppin, the resident engineer of Massand (“Coppin”), that the working conditions at the job site probably violated OSHA. Branston’s response was that, if the City wants the job done, this is how they do it. Other than reporting to Smith, Cúbelo did nothing when given this response. The City was advised on September 7 and September 9, 1994, that too many men were getting hurt on the job. S & B’s safety committee also believed that the 145th Street Bridge was the site of numerous personnel accidents. On August 12, 1994, a worker was hurt on the job. At a progress meeting held on September 7, 1994, Coppin advised all in attendance, which included management personnel from all three defendants, i.e., Massand’s project engineer Ayman Baki (“Baki”), the head of the City’s Bridge Rehabilitation program John Hendrickson (“Hendrickson”), and S & B’s superintendent Branston, that too many men were getting hurt on the job. Nine days after the September 7th progress meeting, another worker, Gunnar Berg, fell on the fender system. Work procedures were not altered, and no safety practices were implemented at the job site. On January 31, 1996, the day of Gra-vatt’s accident, Jodh Singh, the Massand inspector who was on duty at the job site (“Singh”) left at lunch time without obtaining a replacement. He did not return until about 3:00 p.m. There were twelve S & B workers at the Project. The Accident Shortly after lunch on January 31, 1996, foreman Holzheuer instructed Gravatt and his co-worker, Thomas Liming (“Liming”), to go onto a barge where S & B had mixed new material and demolition debris, to move several old piles that were obstructing access to two drafts of new lumber still on the barge. The drafts of lumber were the only new material remaining on the barge. Four hits of new material had been completed previously that day. The rest of the barge was full of debris, and it was towed away the following day. Gra-vatt’s and Liming’s normal job duties did not include moving material on barges. It was another employee’s job at the site to move this kind of debris, a “deck man” named Richard Sada. The old piles that were obstructing access to the new drafts of lumber had been dumped on top of or near the new material by S & B’s crane operator and deck man but the decision to mix debris with new material was made by Holzheuer. The stowage of the old piles resembled a giant game of “pick up sticks.” Holzheuer instructed Gravatt and Liming to use the timber tongs and swing the pile over. Jack Bombace, the S & B crane operator (“Bombace”), was in the crane on the crane barge. The crane barge was secured to the fender, and the material/debris barge on which Liming and Gravatt were working was tied to the crane barge. Bombace could not see Gravatt who was in the pile of debris about 60 or 70 feet away from Bombace. Gravatt could not see Bombace and did not give any signals to the crane operator. Gravatt climbed on the debris and reached to attach the timber tongs on a twelve foot piling at a location about one-third the length of the piling. Bombace received one signal which he construed as a signal to swing the pile out of the debris heap, and Liming gave that signal. Bombace believed that Gra-vatt was on the other side of the draft of new lumber, and not in the debris heap. Liming did not use the hand signals specified in S & B’s safety handbook. The signal that Liming would have used to direct Bombace to stop lifting was similar to the signal in the safety handbook for hoisting. The pile was raised about ten feet in the air. As the pile was hoisted, the end of it became stuck in some of the debris on the barge. Gravatt was on the top of the draft of new lumber, about eight feet above the deck and turning away as the piling rose. Bombace was about to swing the pile away from the debris heap when the pile pulled through the tongs. Gravatt heard Liming yell “look out” and looked over his shoulder and saw the pile falling. The piling fell and hit another piling which bounded up and struck Gravatt in the back of the legs, knocking him from the top of the draft of lumber some 25 feet into the Harlem River. The workers rescued Gravatt from the near freezing waters of the Harlem River, took him into the shanty, stripped him of his clothes, and placed him next to the heat. Gravatt waited about half an hour for the ambulance to arrive. He complained of pai