In 2004, the Town of Fort Ann commenced a reconstruction project of the spillway at the Hadlock Pond dam, which the Town owns and operates. The Town retained HTE Northeast, Inc., to design the reconstructed spillway, Atlantic Testing Laboratories to test the materials used during the project and Mrs. Baynes’ client, Kubricky Construction, to construct the spillway. Prior to final inspection by the engineer or the New York State Department of Environmental Conservation, the Town impounded water behind the dam. Three months later, the dam failed, causing massive flooding and extensive property damage. Subsequently, over 100 property owners sued those involved, seeking damages in more than thirteen different lawsuits.
In May of 2010, Mrs. Baynes’ client, Kubricky Construction, moved for a ruling as a matter of law that the Town, as owner and operator of the dam, had a nondelegable duty under both the Environmental Conservation Law and the public policy of New York State to maintain and operate the dam in a safe condition and, as such, was vicariously liable for its contractors’ negligence. The Town cross-moved for contrary relief. In June of 2010, the Hon. David B. Krogmann, Washington County Supreme Court Justice, granted the Town of Fort Ann’s cross-motion and ruled that the Town did not have a nondelegable duty with respect to the dam. Mrs. Baynes appealed to the Appellate Division, Third Department, on behalf of Kubricky Construction.
On October 27, 2011, the Appellate Division issued its ruling in favor of Kubricky Construction and reversed the decision of the lower court. Citing both common law and statutory authority, the Appellate Division ruled that the owner or operator of a dam (in this case, the Town of Fort Ann), does indeed have a nondelegable duty to repair and maintain the dam in a safe condition at all times and is, thus, vicariously liable for its contractors’ actions or omissions.
A copy of the Appellate Division decision can be found by clicking http://www.nycourts.gov/reporter/3dseries/2011/2011_07559.htm.
About Kathleen McCaffrey Baynes: Ms. Baynes practices primarily in complex and multi-party litigation, particularly in the areas of construction and Labor Law, premises liability (commercial/retail and residential); personal injury; leasing and related contractual and insurance coverage issues; construction and Labor Law; interpretation, application and coverage under liability, disability and life insurance policies and annuities; pollution/Navigation Law claims, and professional liability. Her practice encompasses all aspects of litigation, including trial, appeals, arbitration, mediation, and administrative proceedings, about which she has lectured on a local, regional, and national level.
