Kirby v. Khorran-Gajaraj
An owner who hires a general contractor who orders workers to construct a scaffold may not owe a duty to a worker who allegedly is injured when the platform of the scaffold collapses. On May 7, 2008, the plaintiff, Nicholas Kirby, was working on a scaffold at the defendant's premises that had been erected under the directions of the general contractor. Allegedly, the plaintiff and a co-worker were about 30 feet above the ground when the platform suddenly collapsed. The plaintiff sued the defendant owner, alleging that she possessed a nondelegable duty to maintain the premises in a reasonably safe condition and was negligent. The defendant denied that she was responsible. The court found that the plaintiff failed to prove that the defendant owner owed the plaintiff a duty to ascertain that the scaffold was reasonably safe. Even if the defendant owed the plaintiff a duty, the plaintiff failed to prove that the defendant breached the duty. The plaintiff did not prove the nature of the defect or that the defendant possessed actual or constructive knowledge of the defect and knew, or should have known, about the defect. The plaintiff, who possessed the opportunity to inspect the scaffold and did not perceive any defect himself, was unable to explain the defect that caused the collapse. Although the defendant herself did not appear at trial, the defendant's attorney appeared, and the defendant was not defaulted. No presumption of liability existed. "[T]he evidence," wrote the court, "is insufficient or nonexistent on the elements of negligence, in this case that a defect can be identified about which the defendant knew or ought to have known and which the defendant had the capacity either to remedy or to warn the plaintiff about within a reasonable period of time." The court granted judgment to the defendant.