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Contract Between Employer and Contractor Did Not Create a Duty Owed to Employee/Instrument of Harm Doctrine Not Applicable

Plaintiff was standing on a barrel performing work for his employer.  In reaching for a tool he grabbed onto some bricks on a column.  The bricks came loose and plaintiff lost his balance and fell.  Plaintiff sued the parties responsible for installing the bricks six years before (pursuant to a contract with the employer).  In affirming summary judgment to the defendants, the Fourth Department wrote:

Here, defendants established as a matter of law that they did not owe any duty to plaintiff, and plaintiff failed to raise a triable issue of fact. Although defendants had contractual obligations with respect to the construction of the project for plaintiff’s employer, as a general rule “a contractual obligation, standing alone, will . . . not give rise to tort liability in favor of a third party,” i.e., a person who is not a party to the contract …. There is an exception to that general rule, however, “where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, ‘launche[s] a force or instrument of harm’ ” …, thereby “creat[ing] an unreasonable risk of harm to others, or increas[ing] that risk” …. Contrary to plaintiff’s contention, the instrument of harm doctrine does not apply to the facts of this case, and thus there was no duty of care running from defendants to plaintiff based on that doctrine ….  Spaulding v Loomis Masonry, Inc. et al, CA 12-01395, 32, 4th Dept, 4-26-13

 

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