## Facts

- Hugh Dullard, a labor foreman employed by Castle Concrete Corp., worked at street level beside a Manhattan high-rise construction site.
- A 4×4 timber fell from at least ten stories above and struck Dullard in the head, killing him.
- Evidence indicated lumber had been stacked on upper floors (including the 29th and 31st), and testimony suggested the timber likely fell from one of those floors.
- The owner/general contractor (Berkeley), the concrete subcontractor (400 Concrete), and Castle had not provided required overhead protection (e.g., a sidewalk shed) or an effective warning system for falling objects.
- In a diversity wrongful-death and survival action, a jury found negligence and apportioned fault: Berkeley 39%, 400 Concrete 35%, Castle 26%.
- The jury awarded damages for wrongful death, conscious pain and suffering, and expenses; the district court entered judgment including prejudgment interest.
- The district court granted 400 Concrete indemnity against Castle for 400 Concrete’s share, denied Berkeley contractual indemnity against Castle for Berkeley’s share, and denied 400 Concrete indemnity from Castle for 400’s obligation to indemnify Berkeley.

## Issues

1. Whether the trial court improperly instructed the jury on *res ipsa loquitur*, including the “exclusive control” requirement for the falling timber.
2. Whether the evidence supported the findings of negligence and the jury’s apportionment of fault among the contractors.
3. Whether the district court correctly resolved contractual and common-law indemnity claims among Berkeley, 400 Concrete, and Castle.
4. Whether the damages award, particularly for wrongful death, was excessive.

## Decision

- The Second Circuit affirmed the liability findings, including use of a *res ipsa loquitur* instruction.
- The court affirmed the jury’s apportionment of fault as supported by the record.
- The court affirmed indemnity rulings: Castle had to indemnify 400 Concrete for 400’s liability to plaintiff, but Berkeley could not obtain contractual indemnity from Castle for Berkeley’s own negligence; 400 Concrete could not shift to Castle the additional burden of 400’s obligation to indemnify Berkeley.
- The court held the damages were excessive on the proof presented and ordered remittitur; if not accepted, a new trial on damages only was required.

## Legal Principles

- In construction-site falling-object cases, an inference of negligence under *res ipsa loquitur* may be permitted when the occurrence is of a kind that ordinarily does not happen without negligence and the responsible parties are better positioned to explain it.
- “Exclusive control” for *res ipsa loquitur* is not limited to literal sole possession; it may be satisfied where multiple defendants share responsibility for materials handling and site safety conditions.
- An owner/general contractor may bear liability for failure to provide required jobsite safety measures intended to protect against falling objects.
- Under New York law, indemnity provisions are strictly construed; absent clear and unequivocal language, a party cannot obtain contractual indemnity for its own negligence.
- Appellate review may require remittitur when a jury’s wrongful-death award is not supported by record evidence of net earnings and non-speculative projections.

## Conclusion

The Second Circuit upheld the use of *res ipsa loquitur*, the jury’s allocation of fault among the owner/general contractor and subcontractors, and the limits on shifting negligence through indemnity agreements, but reduced the wrongful-death recovery because the record did not support the magnitude of the award.


Dullard v. Berkeley Assocs. Co., 606 F.2d 890 (2d Cir. 1979)