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THE ALLEGED FAILURE TO ELIMINATE A TRIPPING HAZARD WAS NOT ACTIONABLE BECAUSE PLAINTIFF WAS NOT A PARTY TO THE CONTRACT BETWEEN DEFENDANT AND PLAINTIFF’S EMPLOYER, DEFENDANT’S ACTS OR OMISSIONS DID NOT FIT WITHIN ANY OF THE ESPINAL EXCEPTIONS IN THIS SLIP AND FALL CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant, which had contracted with plaintiff’s employer to offer a work-training program, did not owe a duty of care to the plaintiff who tripped and fell over extension cord wires during the training session. The only Espinal exception alleged was that the defendant launched an instrument of harm, which was deemed inapplicable by the Second Department. The alleged failure to eliminate the tripping hazard was not actionable:

“[A] contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” … . However, there are three exceptions to that general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of [its] 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” … .

… The Supreme Court’s determination that a triable issue of fact existed as to whether the defendant negligently failed to correct the alleged tripping hazard amounts to a finding that the defendant may have merely failed to become “an instrument for good,” which is insufficient to impose a duty of care upon a party not in privity of contract with the injured party … . Espeleta v Synergy Resources, Inc., 2019 NY Slip Op 04138, Second Dept 5-29-19

 

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