Sunday, February 27, 2022

Contractors Not Liable Despite Hazardous Condition Existing

In Hodzic v. Cary, Inc, et al (decided February 23, 2022), 22 NY Slip Op 01149, the Appellate Division, Second Department affirmed a judgment dismissing a trip-and-fall/injury case against a construction contractor and subcontractor .  The case arose after the plaintiff, an employee of a bank, alleged injuries after she tripped and fell due to a height differential between floors of the premises of her employer/bank.  

Prior to the incident, the bank hired M. Cary, Inc. as a general contractor for a renovation project at the bank, and this project included raising the floor adjacent to the bank's printer room.  The general contractor hired the defendant Dimensional Drywall & Acoustics, LLC to perform that work.  The plans and specifications, which were prepared by the bank's architect, did not include raising the floor in the printer room or installing a ramp between the printer room and the floor in the adjacent room.  As a result of the foregoing, and after the work was completed, there was a height differential of approximately 2 inches between the floor in the printer room and the floor in the adjacent room - thereby eventually leading the plaintiff to trip, fall and sustain injuries due to this condition.

As a result of her incident/injuries, in March 2012 the plaintiff commenced a lawsuit against, amongst others, the general contractor and the subcontractor.  The case went to trial, and the defendant contractors made separate applications pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against each of them.  The Supreme Court granted the applications, thereby dismissing plaintiff's case against the contractors, and thereafter the plaintiff appealed the decision to the Appellate Division, Second Department.

The Appellate Division held, among other things, the following: "To be awarded judgment as a matter of law pursuant to CPLR 4401, there must be 'no rational process by which the fact trier could base a finding in favor of the nonmoving party' upon the evidence presented at trial...Here, the Supreme Court properly granted the defendants' applications for a directed verdict based upon the plaintiff's failure to establish that the defendants owed her a duty of care.  Generally, an independent contractor owes no tort duty of care to third parties [citing Espinal v. Melville snow Contrs., 98 NY2d 136).  One exception to that general rule is 'where...the contracting party, in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm'... Another exception to that rule is where the contracting party has 'entirely displaced the other party's duty to maintain the premises safely.'"

The Court further held the following: the contractors in this case did not owe a duty of care to the plaintiff; "the defendants' awareness of the height differential and failure to correct and warn of the defect did not launch a force or instrument of harm for which they may be liable"; the plans were not so "defective" that "a contractor of ordinary prudence would not have performed the work"; and the contractors did not entirely displace the bank's duty to maintain the premises.

The Court, however, does not elaborate further as to why the contractors did not "launch a force or instrument of harm."  The architect plans did not include that the floor should be raised, yet the floor appears to have been raised due to the contractors' work (or, at least, this is what the plaintiff in this action seems to have argued).  Perhaps, the Court believed that the plaintiff did not present adequate evidence at trial to demonstrate same.

The decision also does not state if the plaintiff was working at the time of the incident and if she was injured during the course of her employment.  Assuming that she was,  then she was likely unable to sue her employer due to the Workers Compensation law (as this law allows an injured worker to obtain Workers Compensation benefits from an employer, but it also prevents the employee from being able to sue the employer).  In this scenario, one could attempt to obtain additional compensation by way of a lawsuit against a non-employer/third-party - such as, for example, construction contractors - and perhaps this is what occurred in the Hodzig case.  One benefit of being able to sue a third-party in a workplace/injury scenario (as opposed to relying on just receiving Workers Compensation benefits) is because Workers Compensation benefits are limited in scope, and do not include damages such as pain and suffering.

Salvatore R. Marino, Esq.