Opinion
826 CA 17–01756
06-29-2018
Michelle M. DZIEDZIC and Anthony W. Dziedzic, Plaintiffs–Appellants, v. Richard WIRTH, Individually and Doing Business as J & S Paving, Defendant, Mark Donabella and Meghan Donabella, Defendants–Respondents.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (BRADY J. O'MALLEY OF COUNSEL), FOR PLAINTIFFS–APPELLANTS. BARCLAY DAMON LLP, SYRACUSE (ALAN R. PETERMAN OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (BRADY J. O'MALLEY OF COUNSEL), FOR PLAINTIFFS–APPELLANTS.
BARCLAY DAMON LLP, SYRACUSE (ALAN R. PETERMAN OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking to recover damages for injuries sustained by Michelle M. Dziedzic (plaintiff) when she tripped and fell over a string that was suspended across a sidewalk. The owners of the premises adjacent to the sidewalk, Mark Donabella and Meghan Donabella (defendants), hired an independent contractor, defendant Richard Wirth, doing business as J & S Paving (contractor), to pave the driveway. The contractor in turn hired a subcontractor, whose job included cleaning up the edge of the driveway. While the contractor was transporting debris offsite, the subcontractor placed the string across the sidewalk as a guide to the location of the edge of the driveway. The contractor did not see the string until he returned but, by that time, plaintiff had already tripped over it. In his deposition testimony, the contractor testified that the string was an obvious tripping hazard, and that its placement across the sidewalk was a mistake owing to the subcontractor's inexperience. It is undisputed that defendants lacked knowledge of the placement of the string. Supreme Court granted defendants' motion for summary judgment dismissing the complaint against them. We affirm.
"Generally, ‘a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts,’ " ( Brothers v. New York State Elec. & Gas Corp., 11 N.Y.3d 251, 257, 869 N.Y.S.2d 356, 898 N.E.2d 539 [2008] ; see Raja v. Big Geyser, Inc., 144 A.D.3d 1123, 1124, 42 N.Y.S.3d 288 [2d Dept. 2016] ). There are, however, exceptions to that general rule (see Brothers, 11 N.Y.3d at 258, 869 N.Y.S.2d 356, 898 N.E.2d 539 ). A party may be vicariously liable for the negligence of an independent contractor in performing " ‘[n]on-delegable duties ... arising out of some relation toward the public or the particular plaintiff’ " ( id. ; see Hosmer v. Kubricky Const. Corp., 88 A.D.3d 1234, 1235, 931 N.Y.S.2d 738 [3d Dept. 2011], lv dismissed 19 N.Y.3d 839, 946 N.Y.S.2d 95, 969 N.E.2d 212 [2012] ). In that vein, a party may be vicariously liable where it assigns work to an independent contractor that " ‘involves special dangers inherent in the work or dangers which should have been anticipated’ " by that party ( Brothers, 11 N.Y.3d at 258, 869 N.Y.S.2d 356, 898 N.E.2d 539 ; see Hildebrand v. Kazmierczak, 25 A.D.2d 603, 603, 267 N.Y.S.2d 604 [4th Dept. 1966] ). To determine whether a nondelegable duty exists, the court must conduct " ‘a sui generis inquiry’ ... because ‘the [court's] conclusion rests on policy considerations’ " ( Brothers, 11 N.Y.3d at 258, 869 N.Y.S.2d 356, 898 N.E.2d 539 ; see Hosmer, 88 A.D.3d at 1235, 931 N.Y.S.2d 738 ).
Contrary to plaintiffs' contention, the court properly determined that defendants are not vicariously liable for the subcontractor's alleged negligence inasmuch as the work to be performed did not involve a nondelegable duty (see generally Hildebrand, 25 A.D.2d at 603, 267 N.Y.S.2d 604 ). The work that defendants assigned to the contractor was to be performed on private property to which members of the public did not have access, and it did not involve any " ‘special dangers’ " ( Brothers, 11 N.Y.3d at 258, 869 N.Y.S.2d 356, 898 N.E.2d 539 ). Moreover, the placement of the string that caused the accident was an unusual act born of the subcontractor's inexperience, and thus it was not inherent in the work to be performed. Finally, although a nondelegable duty may be imposed by statute or regulation (see Hosmer, 88 A.D.3d at 1235–1236, 931 N.Y.S.2d 738 ), there were no violations of the sections of the Oswego City Code upon which plaintiffs rely.