The Second Department determined there was a question of fact whether the employer, Vertical, could be held vicariously liable for the actions of an independent contractor, On Guard. On Guard provided security for a parking lot owned by Vertical. Plaintiff was injured when struck by a remote-controlled toy car which was apparently being operated in the parking lot with a security guard’s knowledge:
“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'” … . “One of the exceptions to this general rule is the nondelegable duty exception, which is applicable where the party is under a duty to keep premises safe'” … . In such instances, the party ” is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which cannot be delegated'” … .
Here, the evidence submitted by the moving defendants raised triable issues of fact regarding whether On Guard was negligent in performing its security duties, and whether the moving defendants were vicariously liable for On Guard’s negligence based on their nondelegable duty to keep the premises safe… . Pesante v Vertical Indus. Dev. Corp., 2016 NY Slip Op 05854, 2nd Dept 8-24-16
NEGLIGENCE (QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR)/EMPLOYMENT LAW (QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR)/INDEPENDENT CONTRACTORS (QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR)