The First Department, over an extensive, substantive, two-justice partial dissent, determined there were questions of fact whether an opening in the floor constituted an open and obvious condition and whether the contractor (Harbour) which removed an obsolete tank, exposing the opening, was liable to plaintiff for “launching an instrument of harm.” Plaintiff was working near the opening, facing away from it, when he stepped back into the opening and fell. Plaintiff had taken a picture of the opening months before and shown it to the property owner’s manager. The dissenting justices argued that the contract between Harbour and the property owner did not obligate it to repair the opening which was revealed when the tank was removed and, therefore, Harbour did not breach a duty of care owed to plaintiff:
Even if Harbour’s contract did not require that it cover, remediate, fill in or repair any of the floor openings resulting from its work, Harbour did not take even minimal corrective measures to protect the exposed opening in the floor after it removed the obsolete oil tank. Thus, while its removal of the tank was in fulfillment of its contractual obligation, a reasonable jury could find that Harbour’s leaving an exposed and unprotected opening in the floor exposed, caused or created a dangerous condition even if previously the metal plate containing the opening was not unsafe. The dissent’s view relies on cases where the defendant did not owe a duty of care because the condition the plaintiff complained of was precisely what was called for in the defendant’s contract … . … There is a view of the facts that Harbour, by leaving the exposed opening without any kind of warning or minimal protection, created or caused an unsafe condition, or made the previously obscured opening in the metal plate “less safe” than before Harbour did its work … . Thus the issue is not whether Harbour had a contractual obligation to protect the opening, but whether by leaving the opening in the metal plate exposed it created an unreasonable risk of harm to the plaintiff. Farrugia v 1440 Broadway Assoc., 2018 NY Slip Op 00347, First Dept 1-18-18
NEGLIGENCE (SLIP AND FALL, QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/SLIP AND FALL (QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/OPEN AND OBVIOUS (SLIP AND FALL, QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/CONTRACT LAW (ESPINAL, TORT LIABILITY TO THIRD PARTY, QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/LAUNCH INSTRUMENT OF HARM (TORT LIABILITY TO THIRD PARTY BASED UPON CONTRACT, ESPINAL EXCEPTIONS, QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))/ESPINAL EXCEPTIONS (TORT LIABILITY TO THIRD PARTY BASED UPON CONTRACT, QUESTIONS OF FACT WHETHER OPENING IN FLOOR OF WHICH PLAINTIFF WAS AWARE WAS OPEN AND OBVIOUS AND WHETHER THE CONTRACTOR WHICH REMOVED A TANK EXPOSING THE OPENING LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT))