New York State Court of Claims

New York State Court of Claims

LYNN v. THE STATE OF NEW YORK, #2001-013-008, Claim No. 99010, Motion No. M-63469


Defendant is entitled to summary judgment dismissing a claim alleging that the State is vicariously liable for the actions of an employee of an independent contractor. Operating a motor vehicle is not, in and of itself, so inherently dangerous an activity that it serves as an exception to the general rule that owners or employers are not liable for the actions of independent contractors.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
May 25 , 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion for summary judgment dismissing the claim:
1. Notice of Motion and Supporting Affidavit, with Annexed Exhibits and Memorandum of Law.

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),[1] Ozzimo testified 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 (276 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 Wright 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 months.[2] Consequently, Wright v Tudor City Twelfth Unit (supra) 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 the 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 vicarious liability.

For the reasons set forth above, defendant's motion is granted and Claim No. 99010 is dismissed.

May 25 , 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]This case was subsequently settled after a jury found the Defendants liable for Claimant's injuries.
  2. [2] Similarly, in Chainani v Board of Education of the City of New York (87 NY2d 370, supra), where the activity itself was held not to be "inherently dangerous," the high court stressed that there was no evidence that the school districts knew of the bus drivers' unsafe practice of allowing students to cross a highway at an undesignated stop. This implies that the school districts might have been liable if they had had such knowledge.