## Facts

- Josiah T. Smith contracted to paint the interior dome of the Kings County courthouse and employed workmen, including the decedent.
- Lacking expertise to build a scaffold, Smith hired Stevenson, an experienced scaffold builder, for a fixed price to construct a scaffold about 90 feet high for the painters to work on.
- While the decedent was working on the scaffold, a ledger broke under ordinary use, causing him to fall and die.
- Trial evidence indicated the scaffold should have been fastened by lashing rather than nailing, and that nailing was not a proper method for such a structure.
- A theory that workmen may have caused the collapse by kicking the scaffold lacked evidentiary support; the record contained no proof the decedent contributed to the accident.
- The administratrix sued Smith and Stevenson for wrongful death based on negligent construction of the scaffold.

## Issues

1. Whether Smith, as an employer who hired an apparently competent independent contractor to build the scaffold, could be liable for the contractor’s negligent construction.
2. Whether Stevenson owed a duty of care in negligence to the decedent, despite lack of contractual privity, where the scaffold was constructed for the use of Smith’s workmen at a great height.
3. Whether the evidence of negligent construction and lack of contributory negligence was sufficient to require submission to the jury rather than dismissal.

## Decision

- The Court of Appeals affirmed dismissal as to Smith.
- The Court of Appeals reversed dismissal as to Stevenson and ordered a new trial.
- As to Stevenson, the court held the evidence permitted a finding that negligent construction caused the collapse and that contributory negligence, if any, was for the jury.

## Legal Principles

- An employer who hires an independent contractor is generally not liable for the contractor’s negligence when the contractor is not the employer’s servant and the employer exercised reasonable care in selecting a competent contractor and lacked knowledge or reason to know of defects.
- A contractor who builds an article or structure that, if negligently made, is “imminently dangerous” to those foreseeably expected to use it owes a duty of reasonable care to such users even without contractual privity.
- A high scaffold built for workmen’s use may qualify as an imminently dangerous instrumentality when defective construction makes serious injury a natural and probable consequence.
- Where evidence supports an inference of negligent construction and does not conclusively establish contributory negligence, those questions must be decided by a jury.

## Conclusion

The court held that Smith was not liable because he reasonably selected a competent independent scaffold builder and lacked notice of defects, but Stevenson could be liable to the decedent despite no privity because a negligently constructed high scaffold poses imminent danger to its intended users; accordingly, negligence and contributory negligence were jury questions requiring a new trial as to Stevenson.


Devlin v. Smith, 89 N.Y. 470 (N.Y. 1882)