Melville Snow Contractors, Inc.,
Respondent. (And a third-party action.)
2002 NY Int. 60
Plaintiff has brought this personal injury action against defendant, a company that entered into a snow removal contract with a property owner. We are called upon to determine whether the company may be held liable to plaintiff for injuries she sustained when she slipped and fell on the premises. To decide this appeal, we must determine whether a contractor of this type owes a duty to a third person, such as plaintiff.
On January 28, 1998 plaintiff slipped and fell in a
parking lot owned by her employer, Miltope Corporation.
Attributing her fall to an icy condition, plaintiff sued
Supreme Court denied the motion, concluding that Melville had failed to show that there was a reasonable explanation for the existence of the ice * * * other than a failure on its part to remove snow and ice in a non-negligent manner. The Appellate Division reversed, granted Melville's motion for summary judgment and dismissed the complaint. The court held that Melville owed plaintiff no duty of care. Important for purposes of this appeal, the court also held that plaintiff's allegation that [Melville] created or exacerbated the hazardous condition did not provide a basis for liability. We now affirm the order of the Appellate Division, but on different grounds.
Because a finding of negligence must be based on the
breach of a duty, a threshold question in tort cases is whether
the alleged tortfeasor owed a duty of care to the injured party
(see Darby v Compagnie Nat'l Air France, , 96 NY2d 343, 347 2001];
Pulka v Edelman, , 40 NY2d 781, 782 ). Here, we must
Under our decisional law a contractual obligation,
standing alone, will generally not give rise to tort liability in
favor of a third party (see Eaves Brooks, 76 NY2d at 226).
Seventy-four years ago, in H.R. Moch Co. v Rensselaer Water Co.
(247 NY 160 ), Chief Judge Cardozo stated that imposing
liability under such circumstances could render the contracting
parties liable in tort to an indefinite number of potential
beneficiaries (id. at 168). As a matter of policy, we have
generally declined to impose liability to that degree. On the
other hand, we have recognized that under some circumstances, a
party who enters into a contract thereby assumes a duty of care
to certain persons outside the contract (see Palka, 83 NY2d at
586; Strauss v Belle Realty Co., , 65 NY2d 399, 402 1985]).
Having rejected the concept of open-ended tort liability, while
recognizing that liability to third persons may sometimes be
appropriate, we must determine where to draw the line (see De
Angelis v Lutheran Med. Ctr., , 58 NY2d 1053, 1055 1983]).
Moch, Eaves Brooks and Palka identify contractual
situations involving possible tort liability to third persons.
Our analysis begins with Moch. There, the defendant entered into
a contract with the City of Rensselaer to supply water to the
City for various purposes, including water at the appropriate
pressure for fire hydrants. A building caught fire and, because
the defendant allegedly failed to supply sufficient water
pressure to the hydrants, the fire spread and destroyed the
plaintiff's warehouse. Although the contract was valid and
enforceable as between the City and the defendant, we concluded
that the contract was not intended to make the defendant
answerable to anyone who might be harmed as a result of the
defendant's alleged breach. Because the plaintiff company was
not a third-party beneficiary, it could not sue for breach of
contract. Nor, we held, could the plaintiff succeed in tort.
[L]iability would be unduly and indeed indefinitely extended by
this enlargement of the zone of duty (Moch, 247 NY at 168). We
observed, however, that irrespective of the attendant contractual
obligations, tort liability to a third person may arise where
the putative wrongdoer has advanced to such a point as to have
launched a force or instrument of harm, or has stopped where
inaction is at most a refusal to become an instrument for good
In Eaves Brooks we continued the theme, identifying detrimental reliance as another basis for a contractor's liability in tort to third parties. There, a commercial tenant sought to recover for property damage sustained when a sprinkler system malfunctioned and flooded the premises. The tenant sued the companies that were under contract with the property owner to inspect and maintain the sprinkler system. For policy reasons, we refused to extend liability to encompass the defendant companies, noting that the building owners were in a better position to insure against loss. We adhered to the general rule that a contractual obligation, standing alone, will impose a duty only in favor of the promisee and intended third-party beneficiaries (Eaves Brooks, 76 NY2d at 226). We were careful to state, however, that tort liability may arise where performance of contractual obligations has induced detrimental reliance on continued performance and the defendant's failure to perform those obligations positively or actively works an injury upon the plaintiff (id.).
Finally, in Palka, we considered whether a maintenance
company under contract to provide preventive maintenance services
to a hospital assumed a duty of care to the plaintiff, a nurse
who was injured when a wall-mounted fan fell on her as she was
tending to a patient. The contract between the parties was
comprehensive and exclusive (Palka, 83 NY2d at 584) and
In sum, Moch, Eaves Brooks and Palka identify three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care -- and thus be potentially liable in tort -- to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, launch[es] a force or instrument of harm (Moch, 247 NY at 168); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties (see Eaves Brooks, 76 NY2d at 226) and (3) where the contracting party has entirely displaced the other party's duty to safely maintain the premises (see Palka, 83 NY2d at 589). These principles are firmly rooted in our case law, and have been generally recognized by other authorities (see e.g. Restatement [Second] of Torts § 324A).
With these precepts in mind, we conclude that plaintiff's claim fails as a matter of law. In opposition to Melville's motion for summary judgment, plaintiff relied almost entirely on Palka, arguing that Defendant's contract [with Miltope] is exclusive, and [Defendant] should be liable [for] damages caused to the Plaintiff. A careful review of the contract between Melville and Miltope, however, defeats plaintiff's claim.
Under the agreement, Melville was obligated to clear, by truck and plow, snow from vehicular roadways, parking and loading areas, entrances and exits of the captioned property when snow accumulations exceed three (3) inches. In addition, Melville agreed that upon Miltope's request, it would spread a mixture of salt and sand on certain areas of the property. As for snow removal, Melville contracted to plow during the late evening and early morning hours, and not until all accumulations have ceased, on a one time plowing per snowfall basis. If there is a plowable accum. by 4 A.M., and it is still snowing, Melville will provide a limited plowing to open up the property before 9 A.M., and if accum. continue, Melville will plow a second time during the day or in the evening after all accumulations have ended.
By the express terms of the contract, Melville was
obligated to plow only when the snow accumulation had ended and
exceeded three inches. This contractual undertaking is not the
Inasmuch as plaintiff failed to allege detrimental
reliance on Melville's continued performance of its contractual
obligations (see Eaves Brooks, 76 NY2d at 226), we look to the
other possible basis for liability: whether Melville launch[ed]
a force or instrument of harm (Moch, 247 NY at 168). In this
context, a defendant who undertakes to render services and then
negligently creates or exacerbates a dangerous condition may be
liable for any resulting injury (see id. at 167; Restatement
[Second] of Torts § 324A[a]). Plaintiff argues that Melville's
snow removal activities created a dangerous icy condition or
increased the snow-related hazard which caused plaintiff to slip
Accordingly, we agree with the Appellate Division that Melville owed no duty of care to plaintiff and therefore cannot be held liable in tort. However, we take this opportunity to address and clarify an aspect of that court's decision.
In its order, the Appellate Division held that
plaintiff's allegation that [Melville] created or exacerbated
the hazardous condition did not provide a basis for liability.
This ruling appears to suggest that a contractor such as Melville
who creates or exacerbates a hazardous condition owes no duty of
care to third persons who may be injured by the contractor's
actions. To the extent the Appellate Division's language may be
so interpreted, it is in conflict with the holdings of the other
The order of the Appellate Division should be affirmed, with costs.
1 Melville brought a third-party action against plaintiff's employer, Miltope Corporation. Supreme Court granted Miltope's motion for summary judgment and dismissed the third-party complaint. That part of Supreme Court's order is not before us.
2 See Genen v Metro-North Commuter R.R. (261 2 211, 214 [1st Dept 1999]); Piccirillo v Beltrone-Turner (284 AD2d 854, 856 [3d Dept 2001]); Di Sano v KBH Constr. Co., Inc. (280 2 951, 952 [4th Dept 2001]).
3 See Beckham v Board of Educ. (267 2 189, 190 1999]); Finley v Weill (264 AD2d 438, 438 ).