Contractor Escapes Negligence and Indemnity Liability

Luby v. Rotterdam Square, L.P., 850 N.Y.S.2d 252 (N.Y. App. Div. 2008)

In this negligence action, plaintiff sustained injuries when he fell over a transition flare of a handicapped ramp.  That ramp had been constructed by defendant Clifford H. Quay & Sons fourteen years earlier pursuant to a contract between Quay and another defendant, Rotterdam Square.  The architectural firm that designed the plans pursuant to which the ramp was constructed was also named as a defendant.  Two issues were at stake.

First, the court examined whether Quay owed a duty of care to plaintiff.  To establish that Quay had such a duty, plaintiff had submitted an affidavit of an engineer, alleging Quay should have known the ramp created a dangerous condition due to the way it was constructed; that affidavit stated that the slope of the ramp did not conform to the New York State Fire Prevention and Building Code as it existed at the time of the ramp’s construction.  The court rejected this argument, granting summary judgment in favor of Quay.  Breach of a contractual obligation is insufficient to impose tort liability in favor of a third party unless plaintiff establishes that one of three conditions is met:   (1) where the promisor, while engaged affirmatively in discharging a contractual obligation, creates an unreasonable risk of harm to others, or increases that risk; (2) where the plaintiff has suffered injury as a result of reasonable reliance upon the defendant’s continuing performance of a contractual obligation; or (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely.  The court stated that, even if there was a violation of the Code as it existed in 1988, it could not conclude that Quay’s construction of such ramp rose to the requisite standard of creating a dangerous condition so as to “‘launch[ ] a force or instrument of harm.’”

Second, the court dismissed Rotterdam’s cross-claim for contractual indemnification from Quay because such an obligation was not expressly assumed in their contract.

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