The Fourth Department, reversing Supreme Court, determined defendant snow removal contractor’s (Krotz’s) motion for summary judgment in this slip and fall case should have been granted. The contractor was hired to plow only the center driveway area, not the parking area where plaintiff fell. It could not be said, therefore, the contractor launched an instrument of harm, the only theory under which the contractor could possibly (under the facts) be liable in tort to plaintiff based upon the plowing contract. The court noted that since the only Espinal factor that may have been alleged sufficiently was “launching an instrument of harm,” that was the only factor the contractor needed to negate in the motion for summary judgment:
Here, any duty that Krotz had with respect to snowplowing on the subject property arose exclusively out of its contract with the apartment defendants … . It is well settled, however, that ” a contractual obligation, standing alone, will impose a duty only in favor of the promisee and intended third-party beneficiaries’ “… , and “will generally 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 are “three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] 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” … .
Even assuming, arguendo, that the allegations in the pleadings are sufficient to require Krotz to negate the possible applicability of the first Espinal exception in establishing its prima facie entitlement to summary judgment … , we conclude that Krotz met its initial burden of establishing that it did not launch a force or instrument of harm by creating or exacerbating a dangerous condition … . Lingenfelter v Delevan Terrace Assoc., 2017 NY Slip Op 03309, 4th Dept 4-28-17
NEGLIGENCE (SLIP AND FALL, SNOW REMOVAL CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, CONTRACTOR DID NOT LAUNCH AN INSTRUMENT OF HARM)/CONTRACT LAW (TORT LIABILITY TO THIRD PARTY ARISING FROM CONTRACT, SLIP AND FALL, SNOW REMOVAL CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, CONTRACTOR DID NOT LAUNCH AN INSTRUMENT OF HARM)/ESPINAL FACTORS (TORT LIABILITY TO THIRD PARTY ARISING FROM CONTRACT, SLIP AND FALL, SNOW REMOVAL CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, CONTRACTOR DID NOT LAUNCH AN INSTRUMENT OF HARM)/SLIP AND FALL (SNOW REMOVAL CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, CONTRACTOR DID NOT LAUNCH AN INSTRUMENT OF HARM)/CONTRACT, TORT LIABILITY TO THIRD PARTIES ARISING FROM (SLIP AND FALL, SNOW REMOVAL CONTRACTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, CONTRACTOR DID NOT LAUNCH AN INSTRUMENT OF HARM)