Using Its “Head,” NY Court Finds that Port-A-Head is Necessary At Worksite July 18, 2010

Sometimes you have to take a step back to appreciate the arguments that are advanced by attorneys. And sometimes those arguments just make you laugh.

In Eversfield v. Brush Hollow Realty, the plaintiff was injured in a construction site accident that was caused by the improper placement of a portable toilet at the work site. The chief question confronted by the Court in this case was whether the subcontractor, who had agreed by contract to indemnify the GC against any “”claim, demand, cause of action, loss, expense or liability . . . arising directly or indirectly out of the acts or omissions of [the subcontractor] or its subcontractors, suppliers or agents, or the employees, in the performance of the work . . . or arising from the use or operation by [the subcontractor] of construction equipment, tools, scaffolding or facilities furnished to [the subcontractor] by [the general contractor] to perform the Work.”

The subcontractor contended that the indemnification provision was not triggered in this case because the portable bathroom at the center of this case did not constitute “construction facilities.”  Apparently they felt that having usable bathrooms for construction workers is neither necessary nor unavoidable. (Yikes!)

In reversing the trial court, however, the appellate court held that since the use of portable toilets at a construction site is a “necessary and unavoidable activity” in the performance of such work,  and therefore qualified as “facilities” within the meaning of a construction indemnification clause.

Jonathan Cooper is a New York Business Litigation and New York Commercial Litigation Lawyer with a focus on New York breach of contract and New York business fraud claims before the Nassau, Queens, Brooklyn, Bronx, Westchester and Suffolk County courts of New York State. For more information, feel free to contact his Long Island office at 516-791-5700.

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