Palka v. Servicemaster Management Services Corp.

Appellate Division of the Supreme Court of New York, Third Department · Torts

TortsNegligenceDutyContract and third-party liabilityAssumption of dutynegligencedutymaintenance contract

Facts

Plaintiff, a registered nurse employed by Ellis Hospital, was assisting a patient when a wall-mounted oscillating fan fell and struck her on the head. Defendant had contracted with the hospital in 1985 to manage hospital maintenance, but it had not installed the fans; the hospital had installed them years earlier. Before defendant took over, the hospital's own maintenance department inspected rooms, including checking whether fans were securely fastened, but those inspections were discontinued after defendant assumed maintenance because of fiscal restraints. Defendant did not inspect the fans, and plaintiff sued alleging defendant was contractually obligated to maintain the premises and failed to ensure the fan was properly affixed.

Issue

Did the hospital's maintenance contractor owe a tort duty to plaintiff, a noncontracting hospital employee injured by a falling fan, either because she was an intended third-party beneficiary of the maintenance contract or because defendant assumed a duty to act toward her? If not, could the negligence verdict stand?

Rule

A contractor's negligent performance or nonperformance of a contractual obligation generally does not create a tort duty to a noncontracting third party unless that person is an intended third-party beneficiary. A duty may also arise by assumption only where past performance induced the plaintiff's detrimental reliance on continued performance and the defendant's subsequent inaction did more than withhold a benefit by positively or actively working an injury, i.e., launching a force or instrument of harm.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A private warehouse in Columbus hires Buckeye Facility Care, a fictional maintenance company, to service the building and keep equipment areas in working order. Dana Ortiz, a warehouse clerk employed by the warehouse, is injured when a ceiling vent cover installed years earlier by the warehouse falls on her. Buckeye Facility Care never inspected vent covers, and Dana was not a party to the service contract.

If Dana sues Buckeye Facility Care in negligence based solely on its contractual maintenance obligations, which is the best answer?

Explanation. A promisor's negligent performance or nonperformance of a maintenance contract generally does not create a tort duty to a noncontracting employee unless the employee is an intended third-party beneficiary or the promisor assumed a duty. The employee's mere benefit from safer premises is incidental, not enough by itself to create duty. Here, Dana was not a contracting party, there is no basis to treat her as an intended beneficiary, and no facts show assumption of duty. (Derived from Palka v. Servicemaster Management Services Corp. (n.d.).)