Santos v. DEANCO Servs., Inc.

142 A.D.3d 137

35 N.Y.S.3d 686

2016 N.Y. Slip Op. 05489

Juan SANTOS, respondent,

v.DEANCO Services, Inc., appellant, et al., defendant.

(and a third-party action).

Supreme Court, Appellate Division, Second Department, New York.

July 13, 2016.

Kornfeld, Rew, Newman & Simeone, Suffern, NY (William S. Badura of counsel), for appellant.

Neimark & Neimark LLP, New City, NY (Ira H. Lapp and George G. Coffinas of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.

DILLON, J.P.

We are called upon to determine, for the first time in this judicial department, whether a snow removal contractor may be found liable in a personal injury action under Espinal v. Melville Snow Contrs. , 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485 on the ground that the snow removal contractor's passive omissions constituted the launch of a force or instrument of harm, where there is no evidence that the passive conduct created or exacerbated a dangerous condition. We find that liability cannot be imposed under such circumstances.

I. Facts

In August 2014, this matter was tried before a jury in the Supreme Court, Rockland County. The trial addressed the issue of liability only.

The underlying events occurred during the early morning hours of January 11, 2009, at a Lowe's Home Improvement (hereinafter Lowe's) store located in Middletown, New York. At that date, time, and place, the plaintiff, Juan Santos, was employed as Lowe's' store manager. A contract existed between Lowe's and the defendant Deanco Services, Inc. (hereinafter Deanco), whereby Deanco was to provide snow removal services on the premises. On the subject morning, Richard Laput, a Lowe's employee, slipped and fell in an area behind the store known as the “bullpen.” The bullpen, which was used to store overstock lumber and other materials, was about 50 feet by 100 feet in size and surrounded by a chain link fence. This area was only accessible to employees. The plaintiff went to the bullpen to investigate Laput's accident, at which time he observed icy conditions there. Shortly thereafter, the plaintiff returned to the bullpen for a second time to lock a gate located across the bullpen. As he was walking to the gate, the plaintiff slipped and fell in the middle of the bullpen. The plaintiff contends that although the area had been plowed from a recent storm, there was ice in the bullpen and no indication that salt had been applied. The plaintiff did not know how the ice had formed or for how long it was present before his fall.

The subject snow removal contract provided that Deanco was to plow snow accumulations of two inches or more, apply salt to accumulations of less than two inches, and use a sand and salt mixture for accumulations of less than two inches if salt alone was insufficient to treat heavy icing. Deanco's president, Andrew DiPaul, conceded that the snow removal contract applied to the bullpen area. Deanco subcontracted with the defendant third-party defendant, BTN Excavating Services, Inc. (hereinafter BTN), to service Lowe's' premises, and it is undisputed that BTN performed snow removal services on the morning of the plaintiff's accident.

The evidence admitted at the trial did not include any meteorological data regarding the recent storm, expert witness testimony about the storm or its conditions, photographs, or surveillance video. Copies of Lowe's' contract with Deanco and Deanco's subcontract with BTN were admitted into evidence, with the latter providing that BTN would plow Lowe's' premises for “[e]very two to three inches of snow ... [and][a]t the end of storm parking lot will be completely cleaned.”

The jury returned a verdict finding both Deanco and the plaintiff negligent and apportioning their comparative fault 50%–50%. BTN was not a participant at the trial. Deanco moved pursuant to CPLR 4404 to set aside the verdict, arguing, as it had unsuccessfully argued under CPLR 4401 at the close of the plaintiff's case and at the close of evidence, that it owed no duty to the plaintiff and had launched no force or instrument of harm so as to make the icy condition worse. The Supreme Court denied the motion. A judgment was subsequently entered adjudging Deanco 50% at fault in the happening of the accident and the plaintiff 50% at fault. Deanco appeals.

II. Legal Analysis

The leading authority governing the liability issues of this action is Espinal v. Melville Snow Contrs. , 98 N.Y.2d 136, 746 N.Y.S.2d 120, 773 N.E.2d 485, an opinion authored by Judge Rosenblatt of the Court of Appeals in 2002. In Espinal, the Court of Appeals examined the circumstances of whether and when a snow removal contractor, who entered into a contract with the property owner, may be liable to a plaintiff not in contractual privity, when the contractor's negligence caused or contributed to the plaintiff's accident. The Court noted the well-established general rule, dating to at least 1928, that the breach of a contractor's contractual obligation does not give rise to tort liability to others not in privity with the contractor, as the duty flows between only the parties to the contract (see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 138–139, 746 N.Y.S.2d 120, 773 N.E.2d 485, citing Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226, 557 N.Y.S.2d 286, 556 N.E.2d 1093, and Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 159 N.E. 896 ; see also Stiver v. Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 257, 848 N.Y.S.2d 585, 878 N.E.2d 1001 ; Javid v. Sclafmore Constr., 117 A.D.3d 907, 985 N.Y.S.2d 893 ; Rudloff v. Woodland Pond Condominium Assn., 109 A.D.3d 810, 971 N.Y.S.2d 170 ; Knox v. Sodexho Am., LLC, 93 A.D.3d 642, 939 N.Y.S.2d 557 ; Henriquez v. Inserra Supermarkets, Inc., 89 A.D.3d 899, 901, 933 N.Y.S.2d 304 ; Lubell v. Stonegate at Ardsley Home Owners Assn., Inc., 79 A.D.3d 1102, 1103, 915 N.Y.S.2d 103 ; Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 213, 905 N.Y.S.2d 226 ; Salvati v. Professional Sec. Bur., Ltd., 40 A.D.3d 735, 835 N.Y.S.2d 656 ). Nevertheless, the general rule, as with many rules in New York jurisprudence, is subject to certain exceptions. In this area of tort law, the Court of Appeals has defined three narrow circumstances under which a contractor may be liable in negligence to a plaintiff with whom there is no contractual privity, for circumstances related to its contractual obligation.

The first exception is where the contracting party, in failing to exercise reasonable care in the performance of contractual duties, launches a force or instrument of harm (see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; Moch Co. v. Rensselaer Water Co., 247 N.Y. at 168, 159 N.E. 896 ).

The second exception is where the plaintiff detrimentally relies on the continuing performance of the contractor's duty (see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d at 226–227, 557 N.Y.S.2d 286, 556 N.E.2d 1093 ).

The third exception is where the contracting party has entirely displaced the other contracting party's duty to maintain the premises safely (see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; Palka v. Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 589, 611 N.Y.S.2d 817, 634 N.E.2d 189 ).

While the origins of these exceptions can be traced to law predating Judge Rosenblatt's opinion, they have collectively and colloquially come to be known in New York as the “Espinal exceptions.” Only the first of these three exceptions is at issue here—whether the alleged passive failure of the snow removal contractor (or in this case, its subcontractor) to apply salt to the bullpen area at Lowe's qualified as the launching of a force or instrument of harm so as to impose tort liability on Deanco for the plaintiff's injuries.¹ This specific question is one of first impression in the Appellate Division, Second Department.

Although no meteorological data was introduced at trial, it was undisputed that there had been snowfall in the hours preceding the plaintiff's accident. It was also undisputed that the Lowe's parking lot and bullpen had been plowed by Deanco's subcontractor, BTN. The only potential basis for holding Deanco liable under these circumstances would be based on a conclusion that Deanco breached its snow removal contract with Lowe's when its subcontractor either failed to salt the bullpen or did so inadequately. To determine whether such a conclusion can rationally qualify as a launch of a force or instrument of harm, we must examine the decisional authorities interpreting the first of the Espinal exceptions.

Uniformly, a launch of a force or instrument of harm has been interpreted as requiring that the contractor create or exacerbate the dangerous condition (see Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 361, 850 N.Y.S.2d 359, 880 N.E.2d 845 ; Church v. Callanan Indus., 99 N.Y.2d 104, 112, 752 N.Y.S.2d 254, 782 N.E.2d 50 ; Espinal v. Melville Snow Contrs., 98 N.Y.2d at 142, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; Javid v. Sclafmore Constr., 117 A.D.3d at 908, 985 N.Y.S.2d 893 ; Rudloff v. Woodland Pond Condominium Assn., 109 A.D.3d at 811, 971 N.Y.S.2d 170 ; Knox v. Sodexho Am., LLC, 93 A.D.3d at 642–643, 939 N.Y.S.2d 557 ; Henriquez v. Inserra Supermarkets, Inc., 89 A.D.3d at 902, 933 N.Y.S.2d 304 ; Quintanilla v. John Mauro's Lawn Serv., Inc.,

79 A.D.3d 838, 839, 912 N.Y.S.2d 415 ; Foster v. Herbert Slepoy Corp., 76 A.D.3d at 215, 905 N.Y.S.2d 226 ; Castro v. Maple Run Condominium Assn., 41 A.D.3d 412, 413–414, 837 N.Y.S.2d 729 ; Salvati v. Professional Sec. Bur., Ltd., 40 A.D.3d at 736, 835 N.Y.S.2d 656 ). This requirement is consistent with the use of the word “launch” in Espinal. Launch is an action verb, requiring by definition evidence that the contractor affirmatively left the premises in a more dangerous...