In a split opinion that was handed down on August 14 in the case of Cappabianca v. Skansa USA Building, Inc., a majority of a New York appeals court held that a water condition on the floor of a worksite was not a dangerous condition for which liability could attach.


At first blush, this opinion seems to stand at stark odds with almost everything we know (or think we know) about negligence laws in New York; after all, how can a water condition not be considered - at least in theory - a dangerous condition? Judging from the vigorous dissent that was penned by Justice Catterson, he apparently felt the same way.


Nevertheless, the majority of the appellate court explained its rationale as follows:


"The dissent believes that defendants' lack of supervisory control is irrelevant because the accident was entirely caused by a dangerous condition existing on the premises, namely, the water from the wet saw that accumulated on the floor ...

"In characterizing the water as a dangerous condition on the premises, the dissent does not take into account that the water would not have been present but for the manner and means of plaintiff's injury-producing work. Since the water was directly caused by work over which the [defendants] had no control, holding them liable for it under section 200 would make them responsible for Job Opportunities' negligence. However, section 200 does not impose vicarious liability on owners and general contractors (see generally Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502, 506 [1993] [comparing Labor Law § 241(6), a vicarious liability statute, with section 200]) ... Since defendants could not control the activity that continuously produced the water, namely, the operation of the wet saw, they lacked any ability to correct the unsafe condition and thus were not liable under section 200 or for negligence (see Biafora v City of New York, 27 AD3d 506, 507-508 [2006])."

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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