Second Department Reminds Practitioners Of The Infrequently Discussed Third Standard Under Which A Contractor Can Be Held Liable In Negligence

We often Blog about cases that fall into two categories for which an Owner or Contractor at a construction site can be held liable under section 200 of the Labor Law or common-law negligence.  If the accident arose out of the means and methods of the plaintiff's work, an Owner or Contractor can be held liable if it supervised the work.  If the accident arose out of a dangerous condition on the property, an Owner or Contractor can be held liable where it had notice of the dangerous condition and the authority to correct that condition.

In Van Nostrand v. Race & Rally Constr. Co., Inc., however, the Second Department reminds practitioners that an Owner or Contractor can also be held liable to the plaintiff in common-law negligence where the Owner or Contractor "created an unreasonable risk of harm that was a proximate cause of the plaintiff's injuries."  Here, the plaintiff was assisting in the delivery of air conditioning equipment from a truck when the equipment that was being hoisted by a crane became stuck under a side rail.  The crane operator instructed the plaintiff to place a pallet jack under the equipment while the operator kept tension with the crane.  The driver of the truck then used a pry bar to maneuver the side rail.  The plaintiff was injured when the the pallet and jack shifted toward him and knocked him off the truck.

The Second Department held that the plaintiff's section 200 claim should have been dismissed against the crane operator's employer, MCN because it did not supervise or control the plaintiff's work.  The Court nevertheless held that MCN's motion to dismiss the plaintiff's common-law negligence claim was properly denied.  The Court found that a contractor could be held liable where the work it performed created the condition that caused the plaintiff's injury, even in the absence of supervision or control over the plaintiff or his work area.  Here, the Court found that a question of fact existed as to whether the crane operator's actions created an unreasonable risk of harm that was a proximate cause of the plaintiff's injuries.