Jansen v. Fid. & Cas. Co.

165 A.D.2d 223, 566 N.Y.S.2d 962 (App. Div. 1991)



A duty directly assumed for the benefit of a particular person or entity does not extend to third parties who were not the intended beneficiaries of the subject undertaking.


Respondent employee was injured while in the course and scope of employment. Respondent initiated action against appellant employer's insurer to recover workers' compensation and contended that appellant negligently inspected the construction project which respondent worked on. The trial court denied appellant's motion for summary judgment and granted respondent's motion to strike appellant's answer to the extent of directing appellant to comply with a notice of discovery and inspection. Appellant sought review.


Can an employer recover against a worker’s compensation and liability insurance carrier for injuries sustained in the course of his employer when the negligence arose out of the regular safety inspections of the work site conducted by the insurer in an effort to reduce the risk of loss covered by its insurance policy?




The court held that the formula for determining when one owed a duty to act was if the conduct had gone forward to such a stage that inaction would not have commonly resulted. The court held that the question was whether the putative wrongdoer had advanced to such a point as to have launched a force or instrument of harm or had stopped where inaction was at most a refusal to become an instrument for good. The court held that respondent failed to allege that appellant owed any duty. The court reversed an order of the trial court and granted appellant's motion for summary judgment.

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