Liberty Mut. Fire Ins. Co. v. Akindele
(2nd Dept., decided 8/25/2009)
Something for the subro folks.
The general rule in New York is that one cannot be held liable for the ordinary negligence of one's retained independent contractors. See, Brothers v New York State Elec. & Gas Corp., 11 NY3d 251 (NY Ct. Apps. 2008). There are three exceptions to that general rule, however:
1. Negligence of the employer in selecting, instructing, or supervising the contractor.
2. Non-delegable duties of the employer, arising out of some relation toward the public or the particular plaintiff.
3. Work which is specially, peculiarly, or inherently dangerous.Liberty Mutual brought this fire subrogation action against the homeowner defendant, seeking to hold her liable for her independent contractor's negligence in renovating her kitchen (and presumably causing a fire that damaged the property of Liberty's insured). Defendant moved for summary judgment and Liberty opposed, arguing that exceptions 1. (negligent selection or hiring) and 3. (inherently dangerous work) to the general rule against liability for negligence of one's independent contractors applied to require a trial against defendant. Queens Supreme granted defendant's motion, and Liberty appealed.
In AFFIRMING the judgment in favor of defendant, with costs, the Second Department held:
Inherently dangerous kitchen remodeling or renovation work? Heh.Contrary to the plaintiff's contention, the defendant homeowner demonstrated her prima facie entitlement to judgment as a matter of law by establishing that the subject fire was caused by the negligence of an independent contractor, for which she was not liable (see Chainani v Board of Educ. of City of N.Y., 87 NY2d 370, 380-381; Kleeman v Rheingold, 81 NY2d 270, 274; Chorostecka v Kaczor, 6 AD3d 643, 644). In opposition to the motion, the plaintiff failed to raise a triable issue of fact as to whether the defendant was negligent in hiring the independent contractor, who had been recommended to her by a trusted friend based upon his prior satisfactory work (see generally Farnsworth v Brookside Constr. Co., Inc., 31 AD3d 1149, 1151; Bellere v Gerics, 304 AD2d 687, 688; Sanchez v United Rental Equip. Co., 246 AD2d 524, 525; Dube v Kaufman, 145 AD2d 595, 596).
Similarly, the plaintiff failed to raise a triable issue of fact as to its claim that the defendant assigned the performance of inherently dangerous work to the independent contractor by hiring him to renovate her kitchen, and that she was aware or reasonably should have been aware of the alleged inherently dangerous nature of that work (see generally Chainani v Board of Educ. of City of N.Y., 87 NY2d at 381; Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 670; Farnsworth v Brookside Constr. Co., Inc., 31 AD3d at 1150). Rather, the record supports the conclusion that the fire occurred as the result of ordinary negligence by the independent contractor in performing work which was not inherently dangerous (see Saini v Tonju Assoc., 299 AD2d 244; MacDonald v Heuer, 253 AD2d 795). Accordingly, summary judgment was properly awarded in favor of the defendant.