October 19, 2016 by Brian Gibbons Construction Defect, New York, Premises Liability 0 comments
Contract for Elevator Maintenance Creates Duty of Care (NY)In Fajardo v. Mainco El Elec. Corp., the Second Department recently discussed how an elevator maintenance company assumes a duty of care to third-parties injured in elevators the company contracts to inspect and repair. The case stems from injuries sustained by the plaintiff in 2008 in a building owned by defendant Underbruckner Realty Co., LLC and leased by defendant Bronx Center for Rehabilitation and Healthcare (“Bronx Center”) for use as a nursing home. Plaintiff, a Bronx Center employee, was injured when he attempted to access the building’s freight elevator. The elevator became stuck between floors, and the plaintiff leaned into the elevator shaft, placed his foot on the top of the elevator, and attempted to call down to his co-workers on the floor below. The elevator’s hoist cable snapped, causing the elevator and the plaintiff to fall into the shaft. The plaintiff sued the building owner, the Bronx Center, and Mainco Corp., the elevator maintenance company that entered into an elevator repair agreement with the Bronx Center. Among the flurry of motions and cross motions made to the Supreme Court, Mainco moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court denied Mainco’s motion. On appeal, the Second Department held that Mainco failed to demonstrate prima facie entitlement to summary judgment, because an elevator company that agrees to maintain the subject elevator may be liable to passengers for the alleged failure to discover or correct any dangerous conditions. Further, any party that enters into this type of services agreement “may be said to have assumed a duty of care – and thus be potentially liable in tort . . . where the contracting party has entirely displaced the other party’s duty.” The Second Department found that Mainco’s maintenance agreement with the Bronx Center required Mainco to periodically inspect the subject elevator and to perform mandatory annual inspections. Further, the evidence indicated that the Bronx Center would report any and all elevator issues to Mainco, who would inspect the elevator, issue a repair proposal, and perform the required repairs upon acceptance of its proposal. Accordingly, the Second Department held that the Supreme Court properly denied that aspect of Mainco’s motion. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions.