PLAINTIFF’S NEGLIGENCE ACTION AGAINST A SECURITY COMPANY HIRED BY KMART SHOULD HAVE BEEN DISMISSED, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (ESPINAL FACTORS) (FIRST DEPT).

The First Department, reversing Supreme Court, determined that plaintiff’s negligence action against a security company (US Security) hired by Kmart did not state a cause of action for tort liability stemming from a contract (Espinal criteria). Plaintiff was injured in a fight with a Kmart employee in a Kmart store. The First Department held that plaintiff was not a third party beneficiary of the contract between Kmart and US Security, did not rely to his detriment on the performance of US Security’s duties, and US Security did not entirely supplant Kmart’s duty to secure the store:

Plaintiff was not an intended third-party beneficiary of the contract between Kmart and U.S. Security, which contains a “No Third Party Beneficiaries” clause … .

Nor can a duty be imposed on U.S. Security on the ground either that plaintiff relied to his detriment on the continued performance of U.S. Security’s contractual duties or that U.S. Security had entirely displaced Kmart’s duty to secure its store … . Plaintiff’s affidavit says nothing about having knowledge of the contract between Kmart and U.S. Security or about detrimental reliance on U.S. Security’s continued performance thereunder … .

As for entire displacement, while the written scope of U.S. Security’s services included “the protection of … customers … in the Premises,” the deposition testimony of the loss prevention manager at the relevant Kmart store makes it clear that, in actual practice, U.S. Security’s services at that store were limited to deterring shoplifting … . Furthermore, U.S. Security did not totally displace Kmart’s duty to secure its store, because Kmart retained supervisory authority over the security guards and required U.S. Security’s staff to complete training in accordance with its (Kmart’s) safety policies and procedures … . Santiago v K Mart Corp., 2018 NY Slip Op 01296, First Dept 2-27-18

NEGLIGENCE (THIRD PARTY ASSAULT, SECURITY COMPANY, PLAINTIFF’S NEGLIGENCE ACTION AGAINST A SECURITY COMPANY HIRED BY KMART SHOULD HAVE BEEN DISMISSED, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (FIRST DEPT))/ASSAULT, LIABILITY FOR THIRD PARTY (SECURITY COMPANY, PLAINTIFF’S NEGLIGENCE ACTION AGAINST A SECURITY COMPANY HIRED BY KMART SHOULD HAVE BEEN DISMISSED, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (FIRST DEPT))/ESPINAL (THIRD PARTY ASSAULT LIABILITY, SECURITY COMPANY, PLAINTIFF’S NEGLIGENCE ACTION AGAINST A SECURITY COMPANY HIRED BY KMART SHOULD HAVE BEEN DISMISSED, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (FIRST DEPT))/SECURITY COMPANIES (LIABILITY FOR THIRD PARTY ASSAULT, PLAINTIFF’S NEGLIGENCE ACTION AGAINST A SECURITY COMPANY HIRED BY KMART SHOULD HAVE BEEN DISMISSED, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (FIRST DEPT))/CONTRACT, TORT LIABILITY BASED UPON PLAINTIFF’S NEGLIGENCE ACTION AGAINST A SECURITY COMPANY HIRED BY KMART SHOULD HAVE BEEN DISMISSED, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (FIRST DEPT))/CONTRACT LAW (TORT LIABILITY STEMMING FROM, ESPINAL CRITERIA, PLAINTIFF WAS INJURED IN A FIGHT WITH A KMART EMPLOYEE, PLAINTIFF WAS NOT A THIRD PARTY BENEFICIARY OF THE CONTRACT BETWEEN KMART AND THE SECURITY COMPANY, PLAINTIFF DID NOT RELY ON THE PERFORMANCE OF THE SECURITY COMPANY’S DUTIES, AND THE SECURITY COMPANY DID NOT FULLY DISPLACE KMART’S DUTY TO PROVIDE SECURITY (FIRST DEPT))