The First Department, reversing Supreme Court, determined defendant property owner, Goldner, was not liable for the actions of defendant independent contractor, UMEC, because Goldner did not oversee UMEC’s work and, based upon the protective measures taken by UMEC in the past, the incident was not foreseeable. UMEC delivered oil to Goldner and plaintiff allegedly tripped over the hose which ran across the sidewalk. In the past UMEC had set up safety measures to protect pedestrians from the tripping hazard:
“Generally, a party that hires an independent contractor cannot be held liable for the negligence of that independent contractor” … . “The primary justification for this 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 various exceptions to this general rule, including “(1) [n]egligence of the employer in selecting, instructing, or supervising the contractor”; (2) “[n]on-delegable duties of the employer, arising out of some relation toward the public or the particular plaintiff”; and (3) “[w]ork which is specially, peculiarly, or inherently dangerous” … .
Under the circumstances presented, we disagree with the motion court’s finding that triable issues of fact exist as to whether Goldner may be liable for the work of an independent contractor where danger is readily foreseeable. The deposition testimony shows that Goldner did not supervise, monitor, or control UMEC when the oil would be delivered. The evidence also shows that UMEC had a prior history of consistently placing safety measures to prevent a pedestrian from tripping over the oil hose. In light of the preexisting precautions established by UMEC and lack of any complaints from prior oil deliveries, Goldner was not placed on notice of the existence of a dangerous condition … . Here, the danger arose “because of the negligence of the independent contractor or [its] employees, which negligence [was] collateral to the work and which [was] not reasonably to be expected” … . Linder v United Metro Energy Servs. Corp., 2021 NY Slip Op 02250, First Dept 4-13-21