Wade Clark Mulcahy LLP

The plaintiff in Guiles v Vassar Bros. Hosp., 2023 NY Slip Op 05593 (Nov. 8, 2023) was on her way to the emergency room at Vassar Brothers Hospital when she was caused to slip and fall on ice in the entry way of the ER. After she sued the Hospital, the Hospital brought a third-party action against their landscaper, who had agreed to provide snow and ice removal services. The landscapers moved for summary judgment dismissing this third-party complaint specifically against claims of contractual and common law indemnification. Although it was granted by the lower court, the 2nd Department overturned on appeal.

The 2nd Department pointed out that claims of contractual indemnification are wholly founded on the language in the relevant contract. The promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circumstances. Id. Here, the contract provided that the landscaper would indemnify the Hospital if an accident occurred because of nonperformance of duties, which included ice checking and application of salt. The landscaper being unable to establish that they did perform their services on the date of the accident, made the indemnity claims stand regardless of the opposition.

If the landscaper had documentation, such as a log that shows when each ice/snow check was done, it would have gone directly to the heart of the claims against them. Now, instead, regardless of whether the landscaper adequately did their job, the claims stand against them, and they face liability.