Although the Elevator Maintenance Company May Have Been Negligent, Under “Espinal,” the Company Did Not Owe a Duty of Care to the Plaintiff—There Was No Evidence the Maintenance Company “Launched an Instrument of Harm,” the Only Available Theory of Liability (Re: Plaintiff) Which Could Have Arisen from the Maintenance Contract
The First Department, in a full-fledged opinion by Justice Saxe, determined an elevator maintenance company (The Elevator Man) did not owe a duty of care to the plaintiff who was injured when the elevator free-fell three stories in September 2010. The maintenance contract with the elevator maintenance company had been cancelled for non-payment, but the company had subsequently agreed to do, and had done, emergency repairs when called to do so. Although there was evidence the elevator maintenance company was negligent re: repairs done in early 2010, applying the “Espinal” criteria, the First Department held there was no evidence the maintenance company “launched an instrument of harm,” the only available theory of liability:
If the issue were limited to whether The Elevator Man was negligent, a question of fact would preclude summary judgment. However, the issue is not that simple.
“Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party” (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 ).
Where a contractor has entered into a contract to render services, it may only be held to have assumed a duty of care to nonparties to the contract in three situations:
“(1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm’; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” (Espinal, 98 NY2d at 140 [internal citations omitted]).
To the extent plaintiff relies on the inspection performed by The Elevator Man on January 14, 2010 in which it gave the elevator a “Satisfactory” rating, despite a “Cease Use” violation that had been issued on November 1, 2009, The Elevator Man was subject to the maintenance contract then in effect. To the extent plaintiff argues that The Elevator Man was negligent in the work it performed on May 26, 2010, any duty The Elevator Man had toward him could not be based on the terminated 2009 maintenance agreement; nevertheless, The Elevator Man continued to be subject to a more limited contract with the manager of the parking facility, in which it agreed to respond to emergency calls, upon payment of an agreed fee.
We find the rule set forth in Espinal to apply here. It is conceded that of the three possibilities listed in Espinal, only the first could provide a basis for liability to plaintiff: “where the contracting party, in failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm'” (id. at 140). However, even accepting for purposes of this analysis that The Elevator Man negligently inspected the elevator on January 14, 2010 and negligently failed to correctly assess the condition of the elevator and necessary repair on May 26, 2010, it cannot be said to have launched a force or instrument of harm. That is, in failing to correctly inspect or repair the elevator, it did not create or exacerbate an unsafe condition. Medinas v MILT Holdings LLC, 2015 NY Slip Op 06044, 1st Dept 7-9-15