Carlineo v. Akins ( 2010 )

Fahey, J. (dissenting).

I respectfully dissent and would reverse the order, deny the motion of defendant Fortuna Energy, Inc. (Fortuna) for summary judgment and reinstate the complaint against it. In my view, there is an issue of fact whether Fortuna retained the right to direct and control the work that produced plaintiffs catastrophic injuries. Defendant Michael S. Comstock, doing business as FT Well Support (Comstock), testified at his deposition that Fortuna had the right to inspect and control his work, and that his work crew followed the instructions of Fortuna’s representatives. Comstock further testified at his deposition that the purchase order for the work performed by his work crew for Fortuna on the date of the accident did not include the injury-producing work.

More importantly, the record establishes that a Fortuna foreman had occasionally directed Comstock’s work crew to perform work beyond that originally scheduled. That foreman, through a member of the Comstock’s work crew with which plaintiff worked, also ordered the work crew to proceed to the well site en route to which plaintiff was injured, and the foreman instructed the work crew to travel on the steep unpaved road on which the accident occurred. Therefore, in my view, there is a triable issue of fact on the record before us whether Fortuna had the right to direct and control the work that produced plaintiffs injuries (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

I further must disagree with my colleagues on the issue whether Fortuna is vicariously liable for the acts of defendant Bruce G. Akins, Jr., who was hired by Comstock as an independent contractor. The work giving rise to plaintiffs injuries involved the extremely dangerous task of transporting gravel in a large dump truck that was nearly filled to capacity, while at the same time the dump truck was towing a trailer carrying a backhoe. That weight, coupled with the very steep downhill gradient on the unpaved road at issue, rendered the injury-producing work equally dangerous to, if not more dangerous than, the blasting, construction and electrical work identified by the Court of Appeals as inherently dangerous activities (see Chainani v Board of Educ. of City of N.Y., 87 NY2d 370, 381 [1995]). I therefore would reverse the order, deny the motion of Fortuna and reinstate the complaint against it. Present—Scudder, P.J., Centra, Fahey, Carni and Pine, JJ.