Recent First Department decision revisits duty of care and common law negligence

The Appellate Division of the State of New York, First Department recently reversed a lower court decision, holding that a subcontractor did not owe a duty of care to a plaintiff working on a jobsite and therefore, determined that the subcontractor could not be held liable for a common law negligence claim.

In Dibrino v. Rockefeller Ctr. North, Inc., 215 N.Y.S.3d 13 (1^st Dept. 2024), the plaintiff sustained injuries following a fall from a ladder and alleged violations of Sections 200, 240(1), and 241(6) of the New York State Labor Law against various defendants including: (1) the owner of the premises; (2) the general contractor; and (3) an electrician subcontractor. Plaintiff was employed by a non-party subcontractor. On the morning of the alleged date of loss, plaintiff used his employer’s six foot, A-frame ladder and scaffold to complete measurements for the installation of a specialty ceiling feature. Plaintiff was asked to reconfirm measurements later the same day. In doing so, he utilized a different, open, A-frame ladder that was set up near his working area for approximately fifteen minutes before ascending to the second or third rung. Thereafter, the ladder moved and plaintiff lost his balance. Plaintiff asserted a common law negligence claim against the electrician subcontractor who supplied the ladder and alleged that the “ladder was defective, and that by leaving an allegedly defective ladder unattended, the [electrician] subcontractor created an unreasonable risk of harm which proximately caused his injuries.”

The lower court denied the electrician subcontractor’s motion for summary judgment which sought dismissal of plaintiff’s common law negligence claim.

In its recent decision, the First Department reversed the lower court’s ruling and held that the electrician subcontractor could not be held liable for common law negligence as the electrician subcontractor did not owe plaintiff a duty of care. Specifically, the court noted that a finding of negligence requires breach of a duty and, “in the absence of a duty, there is no breach and without a breach, there is no liability.” The decision further examined the three (3) exceptions to the general rule for duty of care set forth above, namely: (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely. Espinal v. Melville Snow Constrs., 98 N.Y.2d 136 (2002).

In Dibrino, the court focused on whether the electrician subcontractor launched an instrument of harm by leaving an open ladder on a jobsite and held that this exception is inapplicable to the facts of the case as the electrician subcontractor did not supervise or control plaintiff’s work and did not give plaintiff permission to use the subject ladder.

Comment

This holding is significant in that select labor law defendants can now argue that they do not owe a duty of care and therefore, are not liable in instances where they owned an allegedly defective ladder (or scaffold) but did not supply same to a worker on a jobsite.