Slip-and-fall Case Dismissed Where Plaintiff was not a Third Party Beneficiary of Snow Removal Contract

Carol Gibson v. Dynaserv Industries, Inc., Supreme Court of the State of New York, Appellate Div., 3rd Dept., Case No. 511962, decided October 20, 2011

On Thursday, the Appellate Division, Third Department, held that a defendant snow removal company hired by the plaintiff’s employer could not be held liable for injuries sustained by the plaintiff when she slipped on ice in her employer’s parking lot.  The respondent/defendant snow removal company had been hired under contract by the plaintiff’s employer to remove snow and ice from the premises.  Plaintiff’s complaint alleged that the snow removal company failed to adequately perform its duties, which led to a build-up of ice which would not otherwise have occurred, and which caused plaintiff’s accident and injuries.

The Appellate Division reversed the trial court’s denial of summary judgment, holding that “a contractual obligation, even if breached, will only give rise to a duty to noncontracting third parties in three limited situations:  (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her 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.”  Gibson, citing Gadani v. Dormitory Auth. Of State of N.Y., 43 A.D.3d 1218 (2007) (internal quotation marks omitted).

Here, the court noted that plaintiff admitted that the dangerous conditions that caused her accident were created by the weather, not the respondent/defendant, who did nothing to “launch a force or instrument of harm.”  As for detrimental reliance, the court found that the plaintiff had not specifically relied on the respondent/defendant’s performance of its duties, a conclusion supported by the fact that there was no evidence she was even aware of the company’s name or the existence of the contract.  Finally, there was not a complete displacement of the employer’s duty to maintain the parking lot.  Not only did the contract with the respondent/defendant expressly state that it was a “non-exclusive” maintenance contract, but the plaintiff testified that the employer kept ice melting chemicals on site and that she and the other employees regularly used these chemicals to alleviate icy conditions on the premises.