SYLVIA ROSENBERG, INDIVIDUALLY &C., RESPONDENT, v. THE EQUITABLE LIFE
ASSURANCE SOCIETY OF THE UNITED STATES, APPELLANT.
79 N.Y.2d 663, 595 N.E.2d 840, 584 N.Y.S.2d 765 (1992).
June 11, 1992
1 No. 114
Decided June 11, 1992
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Margretta J. Bowen, for Appellant.
Henry M. Grubel, for Respondent.
New York State Trial Lawyers' Association, amicus curiae.
SIMONS, J.:
Plaintiff is the widow of Sidney Rosenberg and the administratrix of
his estate. She seeks damages from defendant for her husband's
wrongful death from cardiac failure resulting, as the jury found, from
a stress electrocardiogram administered during a physical examination
ordered by defendant as a precondition to his obtaining life
insurance. The examination was performed by Dr. R. Arora, a private
physician, who maintained offices in New Jersey and was paid by
defendant on a case-by-case basis. He is not a party to this action.
The plaintiff advances two theories for recovery. First, she contends
that defendant is vicariously liable for the negligence of Dr. Arora
although he was an independent contractor because the examination as
administered was "inherently danger- ous." Second, plaintiff asserts
that defendant is liable for its own negligence in ordering the stress
exam and in failing to obtain decedent's informed consent to it. The
jury agreed with plaintiff on both grounds, awarding her a substantial
verdict, and the Appellate Division affirmed. We conclude that
defendant is not legally responsible to plaintiff on either ground
and, therefore, reverse the judgment and dismiss the complaint.
When he applied to defendant for life insurance, decedent was 51 years
of age, a diabetic, and had an eight-year history of heart disease. At
the age of 44, he had suffered a heart attack. Because of decedent's
medical history, defendant required an independent evaluation of his
condition before issuing the policy and referred decedent to Dr.
Arora, a physician of the company's choosing, for examination.
SNIPPETS:
SYLVIA ROSENBERG, INDIVIDUALLY &C., RESPONDENT, v.
This opinion is uncorrected and subject to revision before publication in the New York
Plaintiff is the widow of Sidney Rosenberg and the administratrix of his estate.
She seeks damages from defendant for her husband's wrongful death from cardiac failure
The examination was performed by Dr. R. Arora, a private physician, who maintained offices in
she contends that defendant is vicariously liable for the negligence of Dr. Arora although he
plaintiff asserts that defendant is liable for its own negligence in ordering the stress exam
he had suffered a heart attack.
Because of decedent's medical history, defendant required an independent evaluation of his
At the trial plaintiff produced evidence that Dr. Arora was informed by one of defendant's
The general rule is that an employer who hires an independent contractor is not liable for
For reasons of public policy, the employer's duty is sometimes held to be non-delegable and,
In such instances, the employer cannot insulate itself from liability by claiming that it was
Corp., 159 AD2d 924- 925); see also, Speiser, Krause & Gans, The American Law of Torts, §
We are concerned in this case with the fourth exception involving "inherently dangerous" work.
The trial court instructed the jury that Dr. Arora was an independent contractor and that,
It also told the jury of the exception to that general rule fixing liability on the employer
"One who employs an independent contractor to do work involving a special danger to others
there were no apparent risks involved in defendant requesting him to do so.
plaintiffs seek to hold defendant liable for requiring Dr. Arora to conduct a stress EKG.
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