2. Affirmation in Opposition
3. Filed Papers: Claim, Answer
On June 25, 1998, Claimant Christopher R. Lynn was injured in an automobile
accident on State Route 256 in the Town of Sparta, Livingston County. The claim
alleges that the accident was caused by an individual named Peter Ozzimo, who
was "engaged in employment by the State of New York either directly or through a
third party contractor" in a road improvement project on that highway. Mr.
Ozzimo, according to the claim, had stopped his motor vehicle on the southbound
shoulder of the roadway and, when he attempted to enter the driving lane,
violated Claimant's right-of-way. Claimant was injured as he made evasive
maneuvers to avoid a collision with Ozzimo's vehicle.
At an examination before trial in a related Supreme Court case (Lynn v
Concrete Applied Technologies and Peter Ozzimo
, Supreme Court, Livingston
County, Index No. 64-1999),
that in June 1998 he was employed by Concrete Applied Technologies, Inc. (CAT)
to work as a flagman on the project to repair Route 256 (Affidavit of Michael
F. Perley, ¶ 7 and Exhibit D). Shortly before 8:00 a.m. on the day in
question, he was traveling in his own vehicle along the construction site, in
both directions, in order to reorient the signs indicating that flagmen and
workmen were present. These signs were turned away from the traffic in the
evening when no one was actively working on the site. To turn each sign, Ozzimo
would park his car on the shoulder, get out and turn the sign, and then get back
in his car, enter the roadway, and drive to the next sign. Ozzimo had
completed turning the last sign and, upon reentering the roadway, was making a
left-hand turn into the construction site when he heard tires screeching behind
him and saw a truck whip around his car and run into a tree.
Defendant has now moved for summary judgment dismissing the claim on the ground
that the State cannot be liable for the allegedly negligent driving of an
employee of CAT, an independent contractor hired by the State to perform road
repair. Claimant's counsel argues that this situation falls within an
exception to the general rule that an owner is not liable for the negligence of
an independent contractor, because the activity being performed is "inherently
dangerous" (Affirmation in Opposition, ¶ 6).
This exception to the general rule that an owner (or employer) is not liable
for the torts of its independent contractors is one of several that have
developed because of public policy concerns. In addition to the exception for
inherently dangerous activity, others are recognized for the owner/employer's
negligence in selecting, instructing or supervising an independent contractor
and for situations where the owner/employer has a specific nondelegable duty,
arising either by statute or because of the fundamental importance of the
undertaking (see discussion in Kleeman v Rheingold, 81 NY2d
270, 274 ff).
The exception for inherently dangerous activity was most recently discussed in
depth by the Court of Appeals in Chainani v Board of Education of the City of
New York (87 NY2d 370). That decision resolved several actions brought by
the parents of schoolchildren who were injured through the negligence of bus
drivers hired by companies that had contracted with school districts to
transport students to and from school. In rejecting the argument that the
school districts were subject to vicarious liability because the activity was
inherently dangerous, the court stated:
This exception applies when it appears both that "the work involves a risk of
harm inherent in the nature of the work itself [and] that the employer
recognizes, or should recognize, that risk in advance of the contract."
Familiar examples of inherently dangerous activities are blasting, certain types
of construction and working with high tension electric wires.
Demanding though it may be, the activity of transporting children by bus to and
from school – successfully accomplished countless times daily – does
not involve that sort of inherent risk for the nonnegligent driver and is simply
not an inherently dangerous activity so as to trigger vicarious liability.
(id., at 381, quoting Rosenberg v Equitable Life Assur.
Society, 79 NY2d 663, 669 [other citations omitted]). Work that is
sufficiently "inherently dangerous" to trigger this exception to the general
rule of nonliability has been more recently characterized as "dangerous even if
all available precautions are taken" (Torres v Allied Tube & Conduit,
____ AD2d ____, 721 NYS2d 655, 657). It has also been stated that for work to
be inherently dangerous in this context, it must be "attended with danger, no
matter how skillfully or carefully it is performed" (Carmel Associates v
Turner Construction Co., 35 AD2d 157, 158).
The list of activities that have been considered to be so inherently dangerous
as to invoke the exception is, admittedly, a varied lot (see,
Eastern Airlines v Joseph Guida & Sons Trucking Co., 675 F Supp 1391,
1395-1396 [EDNY 1987]). In light of the holding in Chainani v Board of
Education of the City of New York (87 NY2d 370, supra),
however, I have no difficulty in concluding that if transporting schoolchildren
by bus does not qualify, then the activity in question here – driving a
private automobile – does not as well. Although the statement in
Chainani quoted above suggests that "certain types of construction" might
qualify as inherently dangerous activity, the fact that Ozzimo was driving his
personal vehicle on a construction site, in connection with the work of the
construction contractor, makes no difference in reaching my conclusion. The
type of driving he was engaged in, even though it required frequent stops, was
nothing more than ordinary and no different from the actions engaged in by
numerous individuals (including postal carriers, individuals making deliveries
or checking their mailboxes, and school bus drivers) every day.
A distinction must be made between work that is so dangerous that even
available precautions cannot make it safe and work that is dangerous only when
it is performed negligently, although sometimes that distinction has not been
articulated with total clarity. Claimant's counsel places great reliance on an
earlier Court of Appeals decision, Wright v Tudor City Twelfth Unit
NY 303), arguing that it is "still good law" (Affirmation in Opposition, ¶
10). That decision does, at some points, appear to indicate that the activity
in question – washing hotel mats and runners – could be considered
sufficiently dangerous to permit imposition of liability on the building's owner
if performed negligently by an independent contractor. A careful reading of the
decision, however, makes it clear that any liability imposed on
the owner would arise from the fact that the building owner knew or should have
known about the contractor's unsafe method of washing the mats and runner
— by placing them on a public sidewalk and cleaning them with soapy water
— because it had been employed for more than six
Consequently, Wright v Tudor City
) appears to be more a recognition of the
exception based on an owner's negligence in selecting, instructing or
supervising its independent contractor than it is one related to the inherent
dangerousness of the activity. That decision would support the imposition of
liability in the instant case only if Ozzimo routinely drove in a negligent
manner when he reoriented the construction signs each morning and
State knew or should have known of such negligence and the danger it posed to
motorists on the highway. No such facts are alleged in the claim or proven by
evidence submitted on this motion.
"Summary judgment is a drastic remedy which should only be granted when it
clearly appears that no material and triable issue of fact is presented"
(Taft v New York City Transit Auth., 193 AD2d 503 [citing
Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). There is no
material and triable issue of fact regarding the accident itself, about Ozzimo's
employment relationship to CAT, or about CAT's relationship to the State.
While in some instances the issue of whether a certain undertaking falls within
the exception for inherently dangerous activity may present factual questions
(see, Emmons v City of New York, ____ AD2d ____, 2001 WL
522138), that is not the case here. Under the standard of Chainani v Board
of Education of the City of New York (87 NY2d 370, supra), the
activity in which Ozzimo was engaged is not so inherently dangerous as to
trigger the exception to the general rule, and thereby trigger the imposition of
For the reasons set forth above, defendant's motion is granted and Claim No.
99010 is dismissed.