In Federico v Defoe Corp., the plaintiff was working along an expressway, removing barrier cones that had been set up to close traffic lanes for construction work.  Violating protocol, he attempted to remove the cones without a shadowing truck, when he was hit by a vehicle. 

In addition to suing the vehicle driver, the plaintiff brought a more creative claim against another contractor that was also working in the area and had placed cones earlier in the day for lane closures.  The theory was that the other contractor had removed the cones without giving notice to the plaintiff and his employer who had “piggybacked” their lane closures on this company’s along the same lane.  The plaintiff argued that the contractor’s removal of the cones caused his accident.  The lower court granted the contractor’s summary judgment motion.

 In affirming the lower court’s decision, the Second Department agreed that the contractor owed no duty of care to the plaintiff directly but, rather, was hired by a 3^rd party to perform work on the expressway.  Accordingly, the Second Department looked at Espinal v. Melville Snow Contractors, and the applicability of its three exceptions.  The court concluded that the contractor, in performing its duties, did not create an unreasonable risk of harm to the plaintiff, the plaintiff did not rely on the contractor’s performance of its work, and the contractor did not displace the plaintiff’s duty to perform his work safely.  Finally, the court concluded that the contractor merely furnished the condition or occasion for the occurrence but was not one of its causes and therefore could not be liable for the plaintiff’s injuries.

Thanks to Georgia Coats for her contribution.

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