Intervene At Your Own Risk (NY)

Often times, property owners in premises liability cases will look to push their liability off on to contractors that they hire to do work.  Ortiz v. City of New York is one example of how the intervening acts of a property owner can still lead to potential liability, despite the fact that the property owner hired a contractor. 

In Ortiz the City of New York moved for summary judgment against its snow removal contractor and that contractor’s subcontractor on the basis that one or both of those entities was liable for the plaintiff’s accident that involved a slip and fall on snow that remained in a City-owned bus shelter.  While the City is typically responsible for snow removal on public property, it had contracted out snow removal to Viacom who then subcontracted the work to Shelter Express.

The snowstorm at issue produced 10.4 inches of snow over two days.  After the snowstorm, Shelter Express performed snow removal pursuant to its contract.  One day later, the City did additional snow removal.  A few days later, before Ortiz’ accident, Shelter Express returned to the scene, but did not do any additional snow removal. 

In affirming the denial of the City’s motion, the First Department noted that a question of fact existed concerning whether the City’s intervening affirmative act of snow removal, if done negligently, was a proximate cause of plaintiff’s accident.  The City risked assuming liability by doing additional snow removal itself instead of calling Shelter Express back to the site.

Special thanks to Lora Gleicher for her contributions to this post.  For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com.