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A Contract Between a Hospital and a Security Company Was Not Invalidated by the Failure to Spell Out the Duties of the Security Personnel—Missing Element Filled in by Conduct; Interplay of Contract and Tort Liability to Third Parties Discussed

The First Department, in a full-fledged opinion by Justice Renwick, determined a security company (Burns), which had contracted to provide security at a psychiatric hospital (RUMC), was not liable, under contract or tort, to the family of a patient who escaped from the facility, engaged in a gun battle with police, and was killed. The opinion includes good discussions of contract liability to third parties versus tort liability to third parties. and the potential availability of contribution among joint tortfeasors that may apply even where no contractual or tort duty exists.  The First Department determined the contractual exclusion of liability to third parties was valid, the security company owed no duty to the plaintiff in tort, and contribution did not apply.  The central point of the opinion was that a security contract can be enforceable even if the precise duties of the security personnel are not spelled out in the contract. The missing element was not deemed essential and could be filled in by conduct:

…[C]ourts have consistently held that “where [as here] it is clear from the language of an agreement that the parties intended to be bound and there exists an objective method for supplying a missing term, the court should endeavor to hold the parties to their bargain”… . Under such circumstances, “[s]triking down a contract as indefinite and in essence meaningless is at best a last resort” …  .

In this case, there is a clear method for supplying the missing term, the parties’ course of conduct; all other terms were adopted directly from the written agreement. Thus, the only thing that was absent in this contract was a writing evincing the particulars of a non essential provision, which was later filled in by the parties’ mutual consent and course of conduct.  Aiello v Burns Intl. Sec. Servs. Corp., 2013 NY Slip Op 05767, 1st Dept 9-3-13

 

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