[*1] Conde v Carini 2011 NY Slip Op 50571(U) Decided on March 31, 2011 Supreme Court, Nassau County Brown, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
Conde v Carini
Decided on March 31, 2011
Supreme Court, Nassau County
Horacio A. Conde and CLAUDIA GLADYS FERNANDEZ, Plaintiffs,
Josephine Carini, FRANK A. MEAK and CHB CONSTRUCTION, INC., Defendants.
Attorney for Plaintiff
Trollman Glaser & Lichtman, PC
777 Third Avenue
New York, NY10017
Attorney for Defendant CHB
Congdon Flaherty O'Callaghan Reid
Donlon Travis & Fishlinger
333 Earle Ovington Blvd.
Attorney for Defendant Carini
Devitt Spellman Barrett, LLP
50 Rte. 111
Jeffrey S. Brown, J.
The following papers were read on this motion:Papers Numbered
Notice of Motion, Cross Motion............................................................................1,2 [*2]
Answering Affidavits .............................................................................................3,4
Reply Affidavits......................................................................................................5,6 ====================================================================
Motion by defendant, Josephine Carini, for an order, pursuant to CPLR §3212, granting her summary judgment dismissal of the plaintiffs' complaint in its entirety as well as any cross claims asserted against her is granted.
Motion by plaintiffs, Horacio A. Conde and Claudia Gladys Fernandez (collectively referred to herein as "Conde"), for an order, pursuant to CPLR §3212, awarding them summary judgment on the issue of liability as against defendant CHB Construction, Inc is denied.
Plaintiff, Horacio A. Conde, brings this action alleging violations of Labor Law and negligence to recover damages he sustained as a result of a fall through a "temporary staircase," infra, that he was descending in defendant Josephine Carini's home on February 19, 2008. His wife Claudia Gladys Fernandez seeks damages for the loss of services of her husband, Horacio A. Conde. Specifically, as best as can be determined, the underlying facts are as follows:
Defendant Josephine Carini ("Carini") is the owner of a single family home located at 20 Bower Place, Huntington, New York (the "Subject Premises"). Shortly after the purchase of her home in 2007, she hired defendant Frank A. Meak ("Meak"), who has defaulted in this action, to do extensive renovation and construction work at the Subject Premises. Meak, in turn, subcontracted with defendant CHB Construction, Inc. ("CHB") to do carpentry and framing work at the Subject Premises. Meak also subcontracted with the plaintiff, Horacio A. Conde, a tile contractor to install tile as part of the renovation work at the Subject Premises. Defendant Carini did not enter into any agreements with any of the other contractors who worked on the job; rather, her only contract was with Meak, the general contractor.
Apparently at Meak's suggestion, among CHB's tasks as part of the renovation work, was to move from one location to another, the staircase leading from the main floor to the basement. This was intended to be a temporary measure for the balance of the work so that workers could get to the basement and a permanent set of oak stairs could be installed at the end of the job. It is undisputed that toward the end of November 2007, CHB moved the wooden staircase that was once a permanent fixture at the Subject Premises to another part of the basement and installed it thereat. (The relocated staircase that was intended to be a temporary measure will hereinafter be referred to as the "temporary staircase" or "temporary stairs"). At her sworn examination before trial ("EBT"), Carini testified that she did not know when or how the existing staircase was relocated.
On February 19, 2008, Conde was doing tile work at the Subject Premises; he had been working there for approximately two or three weeks. Conde testified that the temporary stairs were already in place at the time he started working at the site. At some point on February 19, 2008, it became necessary for a CHB worker to go into the basement to gain access to an electrical switch. Conde agreed to accompany the CHB worker down to the basement to access the electric box. The CHB worker was following the plaintiff down to the basement. Notably, the temporary stairs were the only way to gain access to the basement. As Conde stepped onto the first step of the temporary staircase, the entire staircase pulled away from the wall and collapsed, causing Conde to fall through the stairs and down onto the basement floor. The CHB worker who was still at the main floor at the time of this accident was unharmed. [*3]
At his sworn examination before trial, Conde testified that he and other contractors had used the temporary stairs on many occasions prior to his accident without incident. He testified that he did not have any problems using the stairs, nor did he ever make any complaints to anyone about the condition of the stairs prior to his accident.
Similarly, Carini testified that after the staircase was relocated, she went up and down the temporary stairs on several occasions, but that she never experienced or observed any problems with the stairs. On those occasions that she did go on the stairs, she had no recollection of the stairs shaking, wobbling or creaking. Carini also testified that during the renovation project, she generally would visit the Subject Premises approximately "a couple of times per week" to meet with Meak and/or the interior designer in order to make payments or to provide input with respect to the aesthetic issues of the renovation. She stated that on those occasions, she did not supervise or provide instructions or directions to the various contractors who were on the site, nor did she observe any of the contractors engaging in any unsafe work practices. She testified that she did, however, observe Meak, issuing instructions to his subcontractors. Carini also testified that she never made any complaints to Meak about the manner in which he was going about the work being performed.
At his sworn examination before trial, Carlos H. Becerra, the owner and sole shareholder of CHB, testified that after his company began work at the site in October of 2007, they more or less worked there five days per week, until their work was completed in April of 2008. He testified that during the time his company was on site, Meak was at the site everyday, regularly supervising CHB's workers in the performance of their work.
Upon the instant motion, defendant Carini seeks summary judgment dismissal of the plaintiffs' complaint as asserted against her. Similarly, plaintiffs seek summary judgment on the issue of liability pursuant to Labor Law §240(1), as against defendant CHB.
The standards for summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law (Alvarez v. Prospect Hosp., 68 NY2d 320 ). Thus, when faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial (Miller v. Journal-News, 211 AD2d 626 [2nd Dept. 1995]).
The burden on the party moving for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact (Ayotte v. Gervasio, 81 NY2d 1062 ). If this initial burden has not been met, the motion must be denied without regard to the sufficiency of opposing papers (Id.; Alvarez v. Prospect Hosp., supra). However, once this initial burden has been met by movant, the burden shifts to the party opposing the motion to submit evidentiary proof in admissible form sufficient to create material issues of fact requiring a trial to resolve (Id). Mere conclusions and unsubstantiated allegations or assertions are insufficient (Zuckerman v. City of New York, 49 NY2d 557, 562 ) even if alleged by an expert (Alvarez v Prospect Hospital, supra; Aghabi v. Sebro, 256 AD2d 287 [2nd Dept. 1998]).
For the sake of clarity, this Court will address each motion separately and in turn.
Initially, it is noted that as against defendant Carini, plaintiffs only advance claims of negligence. In fact, in his opposition to defendant Carini's motion, counsel for the plaintiffs concedes that as the owner of a single family home who did not have direction and control over the worksite, [*4]Carini has no liability for violations of Labor Law §§ 240(1) and 241(6). Thus, defendant's motion for summary judgment is limited to dismissal of plaintiffs' common law negligence claims asserted against her.
In that regard, the common law negligence (or Labor Law §200)[FN1] analysis must begin with the acknowledgment that there are two disjunctive standards for determining a property owner's liability: (1) worker injuries occasioned as a result of alleged dangerous or defective conditions of the premises where the work is performed; and (2) injuries occasioned by the use of dangerous or defective equipment at the job site.
Under the first category, a property owner may be liable under the common law for failing to provide a safe place to work (Rizzuto v. L.A. Wenger Contr. Co., 91 NY2d 343, 352 ; Comes v. New York State Elec. & Gas Corp., 82 NY2d 876, 877 ). Thus, for liability to be imposed on the property owner, there must be evidence showing that the property owner either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time (Rizzuto v. L.A. Wenger Contr. Co., supra at 352; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 504 ; Russin v. Louis N. Picciano & Son, 54 NY2d 311, 317 ; Ortega v. Puccia, 57 AD3d 54 [2nd Dept. 2008]). Remedial efforts do not involve control over the work per se, but instead involve the property owner's control over the dangerous or defective premises condition and his/her authority to remedy the same.
On the other hand, under the second category, i.e., injuries occasioned by the use of dangerous or defective equipment at the job site, if such equipment was provided to the worker and the worker was injured by it, the property owner will only be liable under Labor Law § 200 if it was possessed of the authority to supervise or control the means and methods of the work (Ortega v. Puccia, supra at 61; Ross v. Curtis-Palmer Hydro-Elec. Co., supra at 505).
The defect or dangerous condition alleged by the plaintiff in this case, is the entire temporary staircase which as he described at his sworn deposition collapsed as soon as he stepped down onto the first step. Specifically, Conde stated at his deposition as follows:
Q:Can you describe for me what happened?
A:Yes. I stepped on the step. It — all of it collapsed. It was as if the earth was swallowing me up. I didn't have time to do anything. I went to step on the following step to go down, and I just went down. The handrail stayed nailed. It stayed on the beam, on the ceiling. So, what fell was the staircase with the beams. The handrail stayed, and the other part of it came undone like this.
When I fell, one of the posts, the pieces of wood, got nailed into my right side. That's what broke two or three ribs. I don't recall very well. I think it was — the impact was over here, the right side. Because of the impact, the thorax box was moved, and so was my sternum. The center bone here, it moved. It didn't break. It moved. I couldn't breathe.
So then Juan, the carpenter who was downstairs moved the wood. He took the staircase off of me and moved me to the side.***
(Conde Tr., pp. 36-37).
Q:When you landed, was there debris from the stairs below you, or did you hit the [*5]concrete?
A:No. There stairs were there. I hit the concrete. The stairs were over there. The stairs came on top of me. I was like this. These are the stairs. When I fell, I fell like that, and the stairs were like that (indicating).
MR. BRIINO: The witness is indicating to the left and the stairs on top of him.
Q:Am I correct that the stairs didn't exactly sink below you? You fell down, and they came on top of you?
A:It's like they didn't sink. The stairs went down. The stairs went down. When the stairs went down, it was as if they did this. Because of my weight, they went to the side, and I fell onto the concrete.
Juan, who was on the last step when it fell, the stairs threw him against the wall, and he hurt his ankle.
So it seems with my weight, the stairs went like that, and I was swallowed this way, and I hit myself against the concrete. But it's not as if the stairs came on top of me and I wound up beneath the stairs. The stairs ended up to my side. I was on the concrete.***
(Conde Tr., pp. 40-41)
Based on this testimony and the plaintiff's pleadings including his Bill of Particulars, the alleged defect/dangerous condition in this case is the temporary staircase itself. Thus, with respect to the homeowner's liability, the issue in this case is whether said staircase constituted a premises condition or defective equipment.In this regard, it is noted, inasmuch as plaintiffs' counsel has already conceded, that Carini did not have the requisite direction and control over the worksite to render her liable pursuant to Labor Law §§ 240(1) and 241(6), and plaintiffs' attempts to argue that the temporary stairs constituted dangerous or defective equipment, simply cannot survive herein (Ortega v. Puccia, supra at 61; see also Persichilli v. Triborough Bridge & Tunnel Auth., 16 NY2d 136, 145 ).
Therefore, inasmuch as plaintiff is advancing claims of negligence against Carini, this court is left to analyze them under the first category of actions: injuries occasioned as a result of dangerous or defective conditions of the premises where the work is performed.
In that regard, the facts are clear that Carini did not create the dangerous or defective condition, i.e., the temporary staircase. Thus, the only question in this case is whether she had actual or constructive notice of the defective condition involving the staircase.
Counsel for Carini argues in his motion for summary judgment that Carini did not have actual notice that the stairs were in danger of collapsing. Counsel submits that the testimony reflects that she had never made nor received any complaints regarding the condition of the stairs either before or after the staircase was relocated. Counsel notes that she testified that she was not present when the stairs were relocated, and she had no idea how the stairs were installed or supported. Finally counsel for Carini submits that Carini testified that on those occasions when she used the temporary stairs to go into the basement, she never experienced or observed any problems with the stairs, therefore, she cannot be attributed to have had actual notice of the same.
Similarly, with respect to constructive notice, counsel for Carini submits that she did not have such notice. Counsel argues that the testimony in this case demonstrates that there was nothing visible and/or apparent with respect to the condition of the stairs that would have placed her on [*6]notice that the stairs were in danger of collapsing. Counsel argues that the testimony clearly indicates that the defendant, as well as the plaintiff and other contractors on site, continued to use the stairs after they were relocated, without issue.
Having established that she did not create the alleged dangerous condition, and that she did not have actual or constructive notice of the same, the defendant has met her prima facie burden of judgment as a matter of law (see e.g., Finger v. Cortese, 28 AD3d 1089 [4th Dept. 2006]). The burden thus shifts to the plaintiffs, as the party opposing the motion, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial (Alvarez v. Prospect Hosp., supra).
Initially, it is noted that in opposition, the plaintiffs rely solely upon the affirmation of their counsel who is obviously without personal knowledge of the facts. This does not supply the evidentiary showing necessary to successfully resist the motion (CPLR §3212[b]; Roche v. Hearst Corp., 53 NY2d 767 ; Rotuba Extruders v. Ceppos, 46 NY2d 223, 229 ).
Nonetheless, counsel for the plaintiffs fails to present a triable issue of fact with respect to Carini's liability. Notably, plaintiffs' counsel argues that as Carini directed that the stairs in her residence be moved as part of the overall renovation project, she therefore created the alleged defect. Counsel also notes that Conde testified that when he used the stairs prior to his accident, there would be "movement" and a "vibration" and that this testimony raises an issue of fact as to defendant's actual or constructive notice. Counsel also points to the fact that Carini, who was admittedly on site at the Premises for a week before Conde was hurt, had used the stairs to access the basement on one occasion and then refused to go back down to the basement. Counsel attempts to argue that this refusal on Carini's part presents an issue of fact as to her notice, actual or constructive, of the defective staircase. These arguments are all unavailing.
First, based upon this court's reading of the deposition transcripts of both Conde and Carini, it is clear that plaintiffs' counsel has mischaracterized the testimonies to suit his opposition. Neither Conde nor Carini ever testified that Carini refused to use the stairs, certainly not out of a concern for their safety; rather, the depositions disclose that Carini only went to the basement when necessary, i.e., to determine the tile and design work for her renovation project.
Additionally, inasmuch as Conde testified that the stairs "moved" and would "vibrate" when they were used, this court finds this interpretation to also be an exaggeration and a misreading of the sworn statements. More accurately, this court reads Conde's testimony to mean that there was a "little movement" in the stairs. In describing what he meant by movement, the plaintiff indicates that there was merely a vibration, rather than actual movement. In a more complete context, Conde testified that despite the fact that there was "little movement" in the stairs, "everybody was using them all day" and that "we all went up and down all day, and there was never a problem" (Conde Tr., p. 27). In this court's reading of Conde's testimony in its entirety, it is clear to this court that nobody, including the plaintiff, Carini or any other contractor on site, was aware that there was a defect (structural or otherwise) with the way the stairs had been installed so that it can reasonably be said that they knew or should have known that the stairs were in danger of collapsing. In the absence of any legal or factual support for counsel's contention that the fact that the stairs would vibrate is akin to having an awareness that the stairs could collapse, said argument is too far attenuated to raise a triable issue of fact, particularly in light of the plaitniff's own testimony that he continued to use the stairs to access the basement without apparent concern that they could or would collapse.
Counsel's assertion that a question of fact exists as to whether Carini created the alleged [*7]defect when she directed the stairs to be relocated as part of her renovation project, is also entirely unsupported by any evidence on the record. Rather the evidence is clear and undisputed that CHB was responsible for relocating the stairs. In fact, a plain and simple reading of the testimony confirms that it was the general contractor, Meak, who made the suggestion to move the stairs, that she did not have anything to do with the work involving the stairs and that she did not have any knowledge as to how the stairs were reinstalled.
Therefore, in light of the fact that plaintiffs' opposition to the defendant's motion is based upon the unsubstantiated, speculative and conclusory statements and allegations of counsel, who lacks personal knowledge of the facts, defendant Carini's motion for summary judgment dismissal of plaintiffs' complaint is granted in its entirety.
Plaintiffs also move for summary judgment on their claims predicated upon Labor Law §240(1) against CHB Construction, Inc. Specifically, plaintiffs advance two bases for their motion for summary judgment. First, as the subcontractor who built the staircase at issue and was performing work on the owner's behalf at the Subject Premises, CHB exercised sufficient direction and control over the temporary stairs, including at the time of plaintiff's accident, particularly because plaintiff was injured while working on behalf of CHB and was assisting a CHB worker at the time of his accident. Second, plaintiffs argue that because it was the sole means of access to an area part and parcel of the renovation project, the collapse of the staircase in and of itself constitutes a violation of Labor Law §240(1); therefore, CHB would be liable for plaintiff's injuries even if it had been a permanent staircase upon which plaintiff sustained his injuries.
In opposition (again advanced without any supporting affidavit of the defendant, CHB, thereby rendering the opposition insufficient, supra), counsel for CHB, submits that the plaintiff's accident did not occur while plaintiff was in the process of performing his work as a tile subcontractor. Counsel notes that the falling stairs, which were the result of the entire staircase being pulled away from the wall, were totally unrelated to the tile work being performed by Conde. Counsel for CHB also argues that temporary stairs such as the one at issue are not included within Labor Law §240(1) such that a subcontractor such as CHB could be held to the absolute liability standard thereunder. Counsel submits that this is particularly so because CHB did not have the ability to control the worksite or the stairs themselves. Counsel maintains that while Conde fell from a height, the incident was not height related with respect to the tiling work which he performed and that there is nothing inherently dangerous in either a temporary or permanent stairway such that there is a need or requirement for a safety device as enumerated in the statute.
Labor Law §240(1) provides, in pertinent part, as follows:
All contractors and owners and their agents, except owners of one and two family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure, shall furnish or erect, or caused to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, swings, hangers, blocks, pulleys, braces, irons, ropes and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.***
Violation of Labor Law §240(1) mandates the imposition of "absolute liability" and is deemed to create a statutory cause of action unrelated to questions of negligence (Striegel v. Hillcrest Heights Development Corporation, 100 NY2d 974, 977 ; Gordon v. Eastern Ry Supply, 82 NY2d 555, 559 ; Zimmer v. Chemung County Performing Arts, Inc., 65 NY2d 513, [*8]522 ).
The aim of this statute is to protect workers by imposing liability for the failure to supply required safety devices at construction sites upon those best situated to mandate and implement their use (Zimmer v. Chemung County Performing Arts, supra at 520). This duty has been held to be non-delegable, and may subject contractors, owners or their agents (except for owners of one and two family dwellings who do not direct the work) to liability for its breach whether or not any of them actually control or supervise the work in which the employee was engaged at the time of the accident (Ross v. Curtis-Palmer Hydro-Elec Co., supra at 500; Gordon v. Eastern Ry. Supply, supra at 560). While the statute itself is to be liberally construed so as to accomplish the purpose for which it was enacted, (i.e., provide special protection from elevation related hazards), injuries from other hazards not falling within the intent of the statute are not compensable thereunder, even if proximately caused by the lack of required safety devices (Rocovich v. Consolidated Edison Co., 78 NY2d 509 ; Quigley v. Thatcher, 207 NY 66, 68 ). That is, the statute applies only to a narrow class of cases. Although Labor Law §240(1) itself contains no such express limitation, the Court of Appeals ruled in Rocovich v. Consolidated Edison Company, supra, that the statute was impliedly limited to those accidents and injuries that arose from elevation-related hazards. Thus, in the wake of Rocovich, there are two kinds of Labor Law §240 cases: (1) cases where the plaintiff-worker is alleged to have fallen in consequence of improper construction, placement or operation of an elevation-safety device (or, alternatively, in consequence of the failure to provide such a device); and, (2) cases where the plaintiff-worker is alleged to have been struck by a falling object in consequence of improper construction, placement, or operation of an elevation-safety device (or as a result of the failure to provide same). In either event, plaintiff must establish that he or she was injured by virtue of an elevation related hazard (Romano v. Welsbach Electric Corporation, 47 AD3d 789 [2nd Dept. 2008]; Mentesana v. Bernard Janowitz Construction Corp., 44 AD3d 721, 723 [2nd Dept. 2007]). Even more specifically, in order to recover under Labor Law §240(1), plaintiff must show that he or she suffered an elevation related accident as a result of a) the failure to provide a ladder, scaffold, hoist or other related appliance, or b) the provision of a listed device that was not "constructed, placed and operated" as to provide "proper protection."
With these guidelines in mind, this court first turns to the issue of whether CHB can be rendered an agent of the general contractor, Meak, or the owner, Carini. In that regard, this court notes that the Court of Appeals in Walls v. Turner Construction Company, 4 NY3d 861  addressed the question as to what sort of "control" is necessary for "owner" or "contractor" status to attach. Specifically, the Court of Appeals stated:
...one may be vicariously liable as an agent of the property owner for injuries sustained under the statute in an instance where the manager had the ability to control the activity which brought about the injury* * * When the work giving rise to [the duty to conform to the requirements of section 240 (1)] has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory "agent" of the owner or general contractor' * * *. Thus, unless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law * * *.
In this case, the work giving rise to the duty to conform to the requirements of Labor Law §240(1), i.e., installing the temporary staircase, was clearly delegated to CHB, who was at all relevant times present at the worksite. Thus, CHB obtained the concomitant authority to supervise [*9]and control that work. Therefore, this Court finds that CHB was an "agent" of Meak and/or Carini for the purposes of Labor Law §240(1) (see Morales v. Spring Scaffolding, Inc., 24 AD3d 42, 46 [1st Dept. 2005]). The issues here, however, are that not only that the injury did not occur while CHB was installing said staircase (which if it had would clearly render CHB liable under Walls), but the plaintiff was arguably not under the direction and control of CHB at the time of his injury. It cannot be overlooked that the injury occurred months after the stairs were installed. Thus, there remains an issue of fact as to whether the collapse of the temporary staircase at a point in time when CHB was not involved in its construction (or dismantling), places plaintiff's fall within the ambit of Labor Law §240(1), despite the undisputed fact that plaintiff was assisting a CHB worker with his work at the time of his fall.
Moreover, the law is settled that subcontractors are responsible for safe performance of the work within the scope of their own contract or subcontract (Miller v. Gedola, 44 AD3d 1017 [2nd Dept. 2007]). Thus a subcontractor such as CHB will be held liable under Labor Law §240(1) as an agent of the general contractor or owner for injuries sustained in those area and activities within the scope of the work delegated to it (Id). Based upon the record presented herein, this Court finds that there remain issues of fact as to whether CHB safely performed the installation of the temporary staircase such that it can be held liable for plaintiff's injuries who fell therefrom. Indeed, in that regard, it remains undisputed that CHB not only had control of that work, i.e., installation, but also the authority to insist that proper safety practices be followed (Everitt v. Nozkowski, 285 AD2d 442, 443-444 [2nd Dept. 2001]). Further, in light of the fact that the plaintiff sustained his injuries as the result of the staircase "com[ing] apart" from the wall, this Court finds CHB's argument that the use of the temporary staircase by all workers at the premises during the renovation project without issue demonstrates that said staircase was installed properly, to be unpersuasive and insufficient. Rather, the Court finds the issue of whether the stairs were in fact safely installed in the first place to be of key importance in determining absolute liability of CHB under Labor Law §240(1).
In light of these issues, and keeping in mind that "this statute is one for the protection of workmen from injury and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed" (Quigley v. Thatcher, supra at 68), plaintiffs' motion for summary judgment is herewith denied.
The foregoing constitutes the decision and order of this Court. All applications not specifically addressed herein are denied.
Dated: March 31, 2011E N T E R :
Hon. Jeffrey S. Brown
Footnote 1:Labor Law §200 is a codification of the common law rule.