Court of Appeals Weighs in on Duty of Care
Back in September 2024, our Legal Angle article focused on the Appellate Division, 1st Department’s decision in DiBrino v. Rockefeller Center North Inc. In that matter, the Appellate Division tackled issues of (i) contractual indemnification and (ii) whether a subcontractor owes a duty to an employee of another subcontractor when the two subcontractors have no contractual relationship. Now, with the New York State Court of Appeals affirming the Appellate Division’s decision in late December 2025, there are further lessons to be learned.
As you are all aware, construction contracts routinely include broad indemnification provisions designed to push risk downstream to subcontractors. For years, many owners and general contractors have relied on sweeping language to argue that subcontractors should bear responsibility for almost any accident connected – even tangentially – to their presence on a jobsite.
The Court of Appeals, however, has now made clear that there can be real limits to contractual indemnification. Based upon an overall reading of the subcontract at issue in this case, the Court held that the subcontractor was not required to indemnify the owner and general contractor for injuries suffered by another subcontractor’s employee even though the accident involved the subcontractor’s equipment and the contract contained, what the owner and general contractor argued to be, extremely broad indemnity language.
The relevant facts are straightforward. The plaintiff, an employee of the carpenter subcontractor, used his employer’s A-frame ladder and rolling Baker scaffold to take measurements on the ceiling for a soffit. Later that day, after putting away his employer’s ladder and scaffold, the plaintiff was asked to remeasure the ceiling. Rather than set up his employer’s equipment again, he used a nearby ladder that he knew did not belong to his employer. The plaintiff went up and down three rungs multiple times to take the measurements before the ladder “moved and wobbled,” causing plaintiff to fall and injure his leg.
The electrical subcontractor conceded that one of the non-stepping rungs on its A-frame ladder was bent. While it was the electrical subcontractor’s unwritten policy for its employees to put blue tape around a defective ladder, the ladder was not taped or removed from the worksite during the electrical subcontractor’s lunch break.
The plaintiff sued the owner, general contractor, and electrical subcontractor on various causes of action, including Labor Law §240(1) (the Scaffold Law), Labor Law §200 (the statute requiring the owner or general contractor to maintain a safe construction site), and common law negligence. As is common in construction litigation, the owner and general contractor sought to shift responsibility downstream by asserting contractual indemnification claims against the electrical subcontractor that owned the ladder. This appeal, however, was brought by the owner and general contractor after the Appellate Division overturned the trial court’s decision and granted the electrical subcontractor’s summary judgment motion to dismiss the owner’s and general contractor’s crossclaims for indemnification.
The owner and general contractor relied on multiple indemnification provisions in the subcontract, including language requiring indemnity for claims “arising out of,” “resulting from,” or “related directly or indirectly” to the subcontractor’s work or conduct. The owner and general contractor argued that the accident would not have happened but for the electrical subcontractor leaving its ladder out on the jobsite, and that this connection was enough to trigger indemnification. The Court of Appeals rejected that argument. The Court emphasized that under New York law, indemnification provisions must be strictly construed and enforced in accordance with the parties’ actual intent. Even very broad contractual language does not automatically extend indemnity to every accident that can be traced in some indirect way to a subcontractor’s presence on the site.
The Court of Appeals focused, as it would with any contractual claim, on the actual text of the subcontract. Within the indemnification section, the Court of Appeals found that each provision was anchored by a common limitation (e.g., “… as a result of Subcontractor’s performance of the Work…”; “… the Work for which Subcontractor is responsible under this Agreement and/or Purchase Order …”; and “…resulting from performance of the Work…”). Based upon those limitations, the Court held that there was a lack of a meaningful connection between the electrical subcontractor’s contractual scope of work and the carpenter’s injury. The carpenter was not performing electrical work, was not supervised or controlled by the electrical subcontractor, and was using the ladder without authorization. He also had proper equipment available from his own employer and chose not to use it. Under those circumstances, the Court concluded that the relationship between the subcontractor’s work and the accident was too remote to trigger indemnification. The Court described the connection as “distantly attenuated,” meaning that it fell outside what the parties reasonably intended to cover when they negotiated the subcontract.
The Court also rejected the argument that phrases such as “arising out of” or “related to” should be interpreted as broadly as similar language in insurance policies. While it is true that when interpreting insurance coverage issues, ambiguous language is often construed in favor of coverage, the same rule is not applicable when interpreting construction indemnity clauses. Courts will not read construction indemnity clauses as open-ended guarantees against all jobsite injuries, particularly where the injury does not flow from the subcontractor’s actual performance of its defined work.
In addition, the Court addressed the claim whether the electrical subcontractor owed a separate duty of care to the injured worker by allegedly “launching a force or instrument of harm” when it left the ladder accessible. The Court held that this theory did not apply. Under New York law, a subcontractor generally does not owe a duty of care to employees of other subcontractors unless it affirmatively creates a dangerous condition. Leaving a ladder on site, even if it was defective, was viewed as a passive omission rather than an active creation of danger. The Court also noted that workers were instructed to use only their own employer’s equipment, and that the injured worker could not reasonably rely on another subcontractor’s tools being safe or appropriate for his use.
This decision has important implications for contractors throughout New York. For subcontractors, it confirms that they are responsible for injuries that genuinely arise from their work, but not necessarily for every mishap involving their equipment. Determinations of responsibility will rest on a careful reading of applicable contract language. In any case, the ruling does not excuse poor safety practices, and subcontractors should continue to enforce equipment policies and remove defective tools from service to avoid closer and more contested cases. Perhaps the biggest takeaway for subcontractors is that they should seek to include language in all upstream indemnification agreements that anchor such indemnification requirements to its acts or omissions relating to subcontractor’s performance of its scope of work. This way, there will be a strong defense should the general contractor seek indemnification for some attenuated circumstance that occurred on a worksite but was not directly related to the performance of the subcontractor’s scope of work.
Ultimately, the Dibrino decision restores some balance to construction risk allocation. It reinforces that indemnification clauses will be enforced according to their defined purpose and scope, not stretched to cover accidents that fall outside a subcontractor’s actual responsibilities. However, with that being said, expect owners and general contractors to be looking closely at their indemnification provisions to see what they can do to ensure they do not suffer the same fate as the owner and general contractor in this case.
Andrew J. Mundo, Esq.
MURTAGH, COHEN, BYRNE, MURDY & MUNDO
amundo@MCB50Law.com