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Mery v. Eginger, 2017 NY Slip Op 02784 (2d Dep’t 2017)

April 20, 2017 • Posted By Paul J. Lee • Insurance Coverage

In this personal injury action, plaintiff was driving a truck with a window open on a road near the defendant Church’s property.  He heard a noise of a lawn mower hitting something and felt a sharp pain in his left eye.  He pulled the truck over and pulled a piece of wire out of his eye.  At the time of the accident, defendant Eginger was mowing the Church’s lawn.  Plaintiff alleges the piece of wire had been ejected by Eginger’s lawn mower.

The Appellate Division affirmed the Supreme Court’s grant of the Church’s motion for summary judgment.  As a general rule, “a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts”.  However, this general rule is “subject to various exceptions, and it has been observed that the general rule is now primarily important as a preamble to the catalog of its exceptions”.  The two exceptions that the plaintiffs argue apply in this case are: (1) that the work assigned to Eginger was inherently dangerous; and (2) the Church had a nondelegable statutory duty.

The Appellate Division found the Church established that the inherently dangerous activity exception does not apply in this case because Eginger’s mowing of the Church’s lawn did not involve a risk of harm inherent in the nature of the work itself, nor should the Church have recognized that risk in advance of the contract.  Further, the evidence submitted by the Church established that it did not have a nondelegable duty to mow the lawn such as would subject it to vicarious liability for the actions of an independent contractor.  In opposition, the Appellate Division found plaintiffs failed to raise a triable issue of fact.