Fire Subrogation Claim Dismissed as Against Contractor

The legal definition of “negligence” is: “the lack of ordinary care… a failure to use that degree of care that a reasonably prudent person would have used under the circumstances.”  [1]  In a negligence action, the jury is typically asked to answer two questions: (1) Was the defendant negligent? and (2) was the defendant’s negligence the proximate cause of plaintiff’s damages?

To win a subrogation claim on a negligence theory, you must prove both (1) and (2). That is, you must show not only that the defendant failed to use ordinary care, but must also show that it was this failure which lead to the damages.

Howard Blady lived on the first floor of a two-family building in Nassau County. A fire broke out at approximately 10:30 pm on the first floor of the building. Workers had been doing renovation work upstairs earlier in the day, and had left around 5:00 pm. The upstairs tenants had been in the unit between 6:00 pm and 7:00 pm. The local fire department could not determine the cause of the fire.Blady’s carrier sued in subrogation against the contractors, arguing that “something” the contractors did in renovating the upstairs unit that day must have led to the fire. The trial court denied summary judgment, but the appellate court reversed and dismissed the lawsuit.  [2]  The appellate court concluded that the plaintiff had not submitted enough proof to sustain a lawsuit against the contractor. The contractor had left the building approximately 5 ½ hours prior to the fire. The tenants had been home after the contractors had left and did not notice anything suspicious. In order to sue the contractor, plaintiff had to show a specific act (i.e., leaving oily rags, a cigarette, wood chips containing stain, etc.) which constituted a “lack of ordinary care.” The mere fact that the contractors were in the room the day of the fire was not enough. Further, plaintiff did not eliminate the possibility that the upstairs tenants did something between 6 and 7 pm that lead to the fire.

Bottom Line: To survive summary judgment, a subrogating carrier’s attorney and expert must be able to point to specific acts or omissions that lead to a fire occurring. Merely placing the defendant at the scene prior to the fire will likely not be sufficient.

[1] New York Pattern Jury Instruction 2:10
[2]One Beacon Ins. Co. v. CMB Contracting Corp., 84 A.D.3d 902, 921 N.Y.S.2d 904 (2nd Dept 2011)

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