Nagy v. State

• Decision Date: 28 October 1982
• Docket Number: No. 65740,65740
• Parties: Stephen D. NAGY et al., Appellants-Respondents, v. STATE of New York, Respondent-Appellant. (Claim)
• Court: New York Supreme Court — Appellate Division

Page 241

456 N.Y.S.2d 241

89 A.D.2d 199

Stephen D. NAGY et al., Appellants-Respondents, v. STATE of New York, Respondent-Appellant. (Claim No. 65740.)

Supreme Court, Appellate Division Third Department.

Oct. 28, 1982.

Gellert & Cutler, Poughkeepsie (Stephen E. Ehlers, Poughkeepsie, of counsel), for Stephen D. Nagy and another, appellants-respondents.

Robert Abrams, Atty. Gen., Albany (Asher Marcus, Long Island, of counsel, Leahey & Johnson, New York City), for State of New York, respondent-appellant.

Before SWEENEY, J.P., and KANE, MAIN, MIKOLL and YESAWICH, JJ.

SWEENEY, Justice Presiding.

Yonkers Contracting Co., Inc. (Yonkers) was engaged as the general contractor in the construction of a highway on land owned by defendant State of New York. Claimant, an employee of Yonkers, was assisting in preparations for blasting a boulder and was experienced in blasting operations. While so engaged on October 13, 1980, explosives were detonated and claimant was hit in the head by a rock propelled through the air as a result of the blast. He sustained severe personal injuries. He and his wife filed the instant claim against the State. After the State answered and a bill of particulars was served, claimants moved for summary judgment on the issue of liability contending that the State was strictly liable as a landowner for claimant's injuries. The State cross-moved for summary judgment dismissing the claim. The court denied both motions and the instant appeals ensued.

Generally a contractee of an independent contractor is not responsible for the torts of its independent contractor (McDonald v. Shell Oil Co., 20 N.Y.2d 160, 166, 281 N.Y.S.2d 1002, 228 N.E.2d 899) but may be held liable if the work to be done is "inherently dangerous" (Wright v. Tudor City Twelfth Unit, 276 N.Y. 303, 12 N.E.2d 307). Blasting is an inherently dangerous activity and imposes absolute liability on those who engage in it (Spano v. Perini Corp., 25 N.Y.2d 11, 302 N.Y.S.2d 527, 250 N.E.2d 31). The critical distinction in the present case from Spano and other cases relied upon by plaintiff is that the person injured was an employee of the independent contractor engaged in the inherently dangerous activity. Our research has revealed only one New York court case holding that a contractee could be liable to an employee of an independent contractor for injuries resulting from inherently dangerous work carried on by the independent contractor (Kojic v. City of New York, 76 A.D.2d 828, 428 N.Y.S.2d 305). The court in Kojic, however, did not discuss the significance of the fact that the plaintiff therein was an employee of the independent contractor and not a "passerby" uninvolved with the dangerous activity being conducted (Kojic v. City of New York, supra ). In our view, the status of the injured party is of paramount importance and requires a contrary conclusion. We are of the opinion that logic and reason mandate that absolute liability should not extend to the owner of land for injuries sustained by an employee of an independent...