Negligence Per Se and Proximate Cause in Highway Contamination under VTL § 1219

Negligence Per Se and Proximate Cause in Highway Contamination under VTL § 1219

Introduction

In Cole v. Triple M Excavating & Trucking LLC (2025 NYSlipOp 01994), the Appellate Division, Third Department, considered cross-motions for summary judgment arising from a motorcycle accident on West Lake Street in Sullivan County. Plaintiff James Cole alleged that Triple M Excavating & Trucking LLC (“Triple M”) discharged mud onto the roadway while performing excavation work for landowner Marc A. Baez, causing Cole to lose control of his motorcycle and suffer injuries. The key issues were:

  • Whether Triple M’s discharge of mud violated Vehicle and Traffic Law § 1219 and constituted negligence per se;
  • Whether that statutory violation proximately caused Cole’s accident;
  • Whether Triple M, as contractor, owed a tort duty to Cole;
  • Whether Baez, as landowner, was liable absent evidence of supervisory control over the excavation work.

Supreme Court denied all summary-judgment motions, and both sides appealed. The Third Department affirmed, finding triable issues of fact as to negligence, causation, and the existence of any duty owed by Baez.

Summary of the Judgment

The Appellate Division applied the stringent standard for summary judgment (CPLR 3212[b]), viewing the evidence in the light most favorable to the non-moving parties and drawing every reasonable inference in their favor. It held:

  • Plaintiff’s violation-of-statute theory (negligence per se under VTL § 1219) failed at the prima facie stage because issues of fact existed as to whether the mud was the proximate cause of the accident.
  • Triple M made a prima facie showing that it did not create or exacerbate a dangerous condition, but plaintiff raised conflicting testimony and photographs suggesting otherwise, so summary judgment was inappropriate.
  • Baez, the landowner, did not establish that he exercised any supervisory control over Triple M’s methods or work at the time of the accident, leaving triable issues on whether he owed a duty.
  • Accordingly, all motions were denied and the order of Supreme Court was affirmed without costs.

Analysis

Precedents Cited

  • Taylor v. Appleberry (214 AD3d 1142): Restated the stringent summary-judgment standard under CPLR 3212.
  • Grant v. Temple (216 AD3d 1351) and First United Methodist Church v. Assessor (230 AD3d 885): Emphasized viewing evidence in the non-movant’s favor.
  • Stanton v. Gasport View Dairy Farm (221 AD2d 1000): Confirmed that “mud” is covered under “any other substance” in VTL § 1219.
  • Holownia v. Caruso (183 AD3d 1035) and Ohl v. Smith (215 AD3d 1019): Held that statutory violation is negligence per se but proximate cause remains for the jury.
  • Pasternak v. County of Chenango (226 AD3d 1220) and Pineiro v. Rush (163 AD3d 1097): Reinforced that proximate cause cannot be decided on summary judgment when factual disputes exist.
  • Demarest v. Village of Greenwich (224 AD3d 1196) and Mizenko v. Intertech Digital (204 AD3d 1151): Defined the “instrument of harm” exception allowing contractor liability in tort.
  • Lopez v. 6071 Enters. (159 AD3d 1092) and Doskotch v. Pisocki (168 AD3d 1174): Clarified that a landowner without supervisory control over a contractor’s work owes no duty to third parties.

Legal Reasoning

1. Summary Judgment Standard. The court reiterated that summary judgment is a “drastic remedy” (Taylor) and requires the movant to eliminate all material issues of fact. All inferences must favor the non-movant.

2. Negligence Per Se under VTL § 1219. A statutory violation automatically establishes negligence if the statute was designed to protect against the kind of harm that occurred. Mud qualifies as a prohibited substance (Stanton). But negligence per se only shifts the inquiry to proximate cause, which here remained disputed.

3. Proximate Cause. Even where duty and breach are established via per se negligence, causation may present questions of fact—“notably, even where a party is found negligent… proximate cause remains a question of fact” (Pasternak).

4. Contractor Liability — Instrument of Harm. Under the “force or instrument of harm” doctrine, a contractor who creates or worsens a hazardous condition may owe a duty in tort despite contracting immunity (Demarest; Mizenko).

5. Landowner Duty. A property owner is generally not liable for a contractor’s methods unless the owner retains supervisory control or directs the work (Lopez; Doskotch). Baez offered no evidence on supervision or control.

Impact

Cole clarifies how courts will treat per se negligence claims under VTL § 1219 in slip-and-fall or vehicle-accident contexts. It reinforces that:

  • Plaintiffs cannot obtain summary judgment on negligence per se alone without establishing proximate cause;
  • Contractors must be prepared to rebut “instrument of harm” theories with clear evidence of reasonable care and sediment controls;
  • Landowners must document any supervisory role to avoid leaving duty questions to a jury.

Future cases will likely cite Cole for the proposition that factual disputes over causation and control require trial, preserving jury fact-finding in contamination and roadway-hazard claims.

Complex Concepts Simplified

  • Negligence Per Se: When a statute specifically prohibits certain conduct (e.g., depositing mud on a highway), breaking that statute automatically counts as negligence.
  • Proximate Cause: A legal link between the defendant’s breach and the plaintiff’s injury. Even if negligence per se is established, the accident must be shown to have resulted directly from that breach.
  • Summary Judgment: A court decision before trial, granted only if there is no real dispute about important facts.
  • Instrument of Harm Doctrine: A contractor who creates a dangerous condition “launches a force or instrument” that can injure a third party, giving rise to tort liability.
  • Silt Fence: A temporary barrier of permeable fabric used on construction sites to slow and trap muddy runoff.

Conclusion

Cole v. Triple M Excavating underscores the judiciary’s reluctance to resolve proximate-cause and duty questions on summary judgment in negligence per se and contractor-liability contexts. By affirming that statutory violations alone do not guarantee liability absent a clear causal link, and that landowners owe no duty without retained control, the decision preserves the critical role of the jury in evaluating disputed facts. This precedent will guide litigants and lower courts in structuring evidentiary presentations and dispositive-motion strategies in roadway contamination and construction-related tort claims.

Case Details

Year: 2025
Court: Appellate Division of the Supreme Court, New York

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