NY Court Refuses to Dismiss Suit, Finding Work in Parking Garage Could be Inherently Dangerous

In New York, a general contractor is ordinarily not liable for the negligence of a subcontractor. This is because under normal circumstances a general contractor does not control how the subcontractor performs his work, and it would be unfair to extend liability to the general contractor. Nevertheless, there are several exceptions to the rule, including instances where the general contractor: (1) negligently hires, instructs, or supervises the subcontractor; (2) is hired to perform work that is inherently dangerous; and (3) has a specific duty that cannot be assigned to anyone else.

In the recent NY Supreme Court case, Clarke v. Fieldbridge Associates, the plaintiff was injured when a slab of concrete fell from the ceiling of a parking garage onto his head.  The garage was owned and managed by Fieldbridge Associates, which hired a company called KTS Development, Inc. to perform repair work on the garage, as well as on a patio above the garage. The project was split into two phases and KTS claimed that it hired two subcontractors, P&R Ironworks and Americas General Contracting & Roofing Corp., to perform the work on both phases.  KTS attempted to have the case dismissed based on the argument that it is not liable for the negligence of a subcontractor.  The court found that KTS proved that it merely exercised minor control over the work that the subcontractors performed and that it was not negligent in hiring, instructing, or supervising either P&R or Americas General.

Unfortunately for KTS the court found that it failed to show that the work performed by the subcontractors was not inherently dangerous.  The issue of whether work is “inherently dangerous” is normally a question of fact to be determined by the jury. In support of its application to dismiss the case, KTS claimed that the danger of a piece of concrete falling was not an inherent risk of the work performed by the subcontractors months prior to the accident, namely the installation of steel beams and waterproofing of a patio deck. In denying the request to dismiss the case, the court stated that aside from its unsupported statement that the work was not inherently dangerous,

KTS has failed to point to any evidence in the record, nor has it submitted any expert affidavit supporting its argument that either the installation of the beams and posts in the garage during the first phase of the project or the repaving of the walkway, including jack hammering, which took place on the patio above the garage during the second phase of the project were not inherently dangerous.

In our view, this case takes an overly broad view of the “inherently dangerous” exception because this case seems to deal with work that would merely cause injury in the event of ordinary negligence. Classic examples of inherently dangerous activities include blasting and working with high tension wires. Nothing about this case seemed to indicate that the work being performed was even remotely as dangerous as blasting.

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