You are here: / / PLAINTIFF RENTED DEFENDANT’S COTTAGE AND WAS INJURED WHEN THE DECK...
,

PLAINTIFF RENTED DEFENDANT’S COTTAGE AND WAS INJURED WHEN THE DECK COLLAPSED; PLAINTIFF’S CAUSES OF ACTION BASED UPON RES IPSA LQUITUR AND VICARIOUS LIABILITY FOR AN INDEPENDENT CONTRACTOR WHO CONSTRUCTED THE DECK SHOULD HAVE SURVIVED SUMMARY JUDGMENT; A PROPERTY OWNER HAS A NONDELEGABLE DUTY TO THE PUBLIC TO KEEP THE PREMISES SAFE, AN EXCEPTION TO THE GENERAL RULE THAT A PROPERTY OWNER WILL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF AN INDEPENDENT CONTRACTOR (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff’s causes of action based upon res ipsa loquitur and vicarious liability for a contractor who constructed the deck should have survived a motion for summary judgment. Plaintiff rented a cottage from defendant. While plaintiff was on the deck, it collapsed:

In New York, in order to establish liability under that doctrine, the plaintiff must establish that the event was: “(1) of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) . . . caused by an agency or instrumentality within the exclusive control of the defendant; [and] (3) . . . not . . . due to any voluntary action or contribution on the part of the plaintiff”…. . “The exclusive control requirement . . . is that the evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it” … .. “The purpose is simply to eliminate within reason all explanations for the injury other than the defendant’s negligence” … . …

“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” … . The “most commonly accepted rationale” for that rule is that “one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor” … . There are, of course, exceptions to the general rule. “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” … . To determine whether a nondelegable duty exists, the court must conduct “a sui generis inquiry” because the court’s conclusion rests on policy considerations … . Although “[t]here are no clearly defined criteria for identifying duties that are nondelegable[,] . . . [t]he most often cited formulation is that a duty will be deemed nondelegable when the responsibility is so important to the community that the employer should not be permitted to transfer it to another” … . Here, we conclude that defendant owes a nondelegable duty to the public to maintain the premises in reasonably safe condition … , and thus that defendant failed to establish as matter of law that she may not be held liable for the actions of her independent contractor … . McGirr v Shifflet, 2022 NY Slip Op 04831, Fourth Dept 8-4-22

Practice Point: Here plaintiff was injured when the deck of the cottage rented from defendant collapsed. Plaintiff’s causes of action based on res ipsa loguitur and vicarious liability for the contractor who built the deck should not have been dismissed. There was a question of fact whether defendant had a nondelegable duty to the public to keep the premises safe, an exception to the general rule that a property owner is not vicariously liable for the acts or omissions of an independent contractor.

 

You might also like
THE TRANSFER OF DECEDENT’S HOME TO THE TWO CHILDREN WHO WERE CARING FOR HIM WAS COMPENSATION FOR THE CAREGIVERS PURSUANT TO AN AGREEMENT, NOT A GIFT (WHICH WOULD NOT HAVE BEEN AUTHORIZED BY THE POWER OF ATTORNEY) (FOURTH DEPT). ​
REMOVING ICE AND SNOW FROM THE ROOF OF A COMMERCIAL BUILDING IS COVERED UNDER LABOR LAW 240 (1), IT DOESN’T MATTER WHETHER PLAINTIFF WAS INJURED FROM THE FALL FROM THE BUCKET OF THE BACKHOE OR FROM BEING STRUCK BY THE BACKHOE (WHICH WAS BEING USED TO LIFT PLAINTIFF TO THE ROOF), PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (FOURTH DEPT).
A FAMILY COURT PROCEEDING IS CIVIL IN NATURE AND THE CONFRONTATION CLAUSE APPLIES ONLY IN CRIMINAL MATTERS, THEREFORE DOCUMENTS WRITTEN BY A PSYCHIATRIST WHO DID NOT TESTIFY WERE ADMISSIBLE (FOURTH DEPT).
PLAINTIFF’S TITLE IX AND 42 USC 1983 CAUSES OF ACTION, BASED ON ALLEGATIONS OF SEXUAL ABUSE BY A TEACHER IN 1972 AND 1973, ARE TIME-BARRED (FOURTH DEPT).
“Summary Exhibits” Improperly Admitted Under “Voluminous Writings” Exception to the Best Evidence Rule
A TAX FORECLOSURE PROCEEDING IS AN IN REM ACTION AGAINST THE PROPERTY, NOT THE PROPERTY OWNER; THEREFORE THE ACTION WAS NOT A NULLITY DESPITE THE DEATH OF THE OWNER (FOURTH DEPT). ​
IT IS REVERSIBLE ERROR FOR A JUDGE TO NEGOTIATE A PLEA DEAL WITH A CODEFENDANT IN EXCHANGE FOR TESTIMONY AGAINST THE DEFENDANT (FOURTH DEPT).
A WRITTEN WAIVER OF APPEAL WAS NOT PART OF THE PLEA AGREEMENT, SENTENCE SHOULD NOT HAVE BEEN ENHANCED FOR DEFENDANT’S REFUSING TO SIGN THE WRITTEN WAIVER.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE POSTNUPTIAL AGREEMENT WAS NOT SIGNED UNDER DURESS AND WAS NOT UNCONSCIONABLE,... HERE PLAINTIFFS ALLEGED THEY WERE SEXUALLY ABUSED DECADES AGO IN MASSACHUSETTS...