Case of the Day – Friday, September 1, 2017


pocket150609One of the first rules among the personal injury lawyers is “find the deep pocket.” After all, what good’s a million dollar judgment against some guy whose earthly assets consist of a pickup truck and a chain saw?

Today’s victim, one of the Brothers brothers, was hurt while he worked on tree trimming. He was an employee of Tamarack Forestry Services, and he was “struck” by an aerial lift truck operated by another Tamarack employee. Of course, workers’ comp would have covered the accident, but our hurtin’ Bro wasn’t interested in chump change. He wanted a big payday for his injury. But where to get it?

That was a problem. Brother Brothers couldn’t sue Tamarack because workers comp prevents it: workers’ compensation is intended to stand in place of the old “sue and score” personal injury lawsuit against an employer. Poor Bro – all that pain and suffering and loss of consortium, and no one to sue.

You know those lawyers who advertise on daytime TV? The ones who say the insurance companies fear them, who thunder into the camera that “I’ll MAKE them pay?” Well, Brothers got himself one of those guys, a personal injury lawyer who was as creative as he was zealous. It turned out that Brothers’ employer, Tamarack, had been hired by New York State Electric and Gas Corp. to perform the tree trimming, and it seemed that NYSEG had plenty of money. Almost all those public utilities have money out the wazoo: just look at your light and gas bills if you doubt that. The utility made a perfect defendant.

billboard150609Almost perfect. It turned out that NYSEG used some of its money to hire good lawyers, too, and they pointed out to the court that Tamarack was merely an independent contractor, a fact that normally would make NYSEG not responsible for the accident.

But New York law has an exception where the employer of an independent contractor had a contractual duty that it couldn’t delegate, such as where it had agreed to be liable for a contractor’s negligence. It turned out NYSEG was working on a DOT right-of-way, and it annually got a blanket license from the State allowing it to do so. The license had some boilerplate in it that NYSEG would comply with federal and state worker safety regs.

“Ah-ha!” cried Brothers’ lawyer, “a nondelegable duty!” “Ah-ha nothing!” cried the appellate court, holding that the non-exclusive license to trim trees created no duty in NYSEG to DOT. Besides, the court said, public policy (which is sort of what the court cites when it knows where it wants to get but doesn’t know how to get there) argues against such an unreasonable expansion of the “nondelegable duty” doctrine.

delegate150609The New York Court of Appeals (which is the state’s highest court) affirmed, agreeing that to hold NYSEG liable would expose it to a “large class of plaintiffs.” That, of course, was the whole point Brothers’ lawyer was pursuing.

Brothers v. New York State Elec. and Gas Corp., 11 N.Y.3d 251 (2008). Mr. Brothers sued New York State Elec. & Gas to recover damages for injuries he sustained as an employee when he was struck by an aerial lift truck operated by a coworker. The public utility had contracted with Brothers’ employer, Tamarack Forestry Service, Inc., to furnish all necessary labor, supervision and equipment to clear trees and brush along electric lines. NSYEG routinely obtained annual blanket highway work permits from the New York State Department of Transportation for work to be performed along state highways. Under the permit, NYSEG was required to comply with various federal and state worker safety regulations. The trial court refused the grant NSYEG summary judgment dismissing Brothers’ action. The utility appealed.

Held: NYSEG could not be sued by Brothers. Generally, 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. There are exceptions to that general rule in instances in which the employer’s duty is held to be nondelegable, in which case the employer is liable for an independent contractor’s negligence. Brothers said the exception applied here because the NYS DOT work permit issued to NYEG was a contract pursuant to which NYSEG voluntarily assumed a nondelegable duty to comply with various federal and state worker safety regulations.

butt150609The Court of Appeals disagreed. It held that while in certain instances a DOT permit may constitute a contract, the work permit here did not. The DOT did not contract with NYEG for tree trimming and removal, but instead NYSEG contracted with Tamarack to trim and remove trees for the benefit of NYSEG in maintaining its electric lines. The work permit is merely a license issued by the DOT to NYSEG conferring only the nonexclusive, revocable right to enter the DOT land to perform an act, and NYSEG assumed no duty to DOT under the work permit.

Furthermore, the Court said, Tamarack as an employer had the duty to provide its employees with a safe workplace. The Court saw no public policy reason to expand the exception for contractually assumed duties to include work permits such as the one issued by DOT to NYSEG, and decried the increase in the number of lawsuits such an expansion would create.

– Tom Root


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.