Wade Clark Mulcahy LLP

A contractual obligation alone does not give rise to premises liability in favor of a third party under New York law. However, there is an exception to this rule where the contracting party entirely displaces the other party’s duty to maintain a premises in a safe condition.

The Appellate Division, Second Department addressed this issue in the recent decision of<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2022/12/Kevin-DaCruz-v.-Airway-Cleaners-LLC.pdf">Kevin DaCruz v. Airway Cleaners, LLC</a>.</em> In that case, plaintiff was an employee of a non-party, American Airlines, and was injured when he slipped and fell on the floor of a bathroom owned by American Airlines at JFK Airport. American Airlines entered into a janitorial services agreement with Airway Cleaners, LLC to clean the bathrooms on the JFK premises.

Plaintiff commenced an action against the janitorial service companies and defendants moved for summary judgment as to the claims against Airway Cleaners. The Second Department affirmed the lower court’s decision granting summary judgment to that defendant, finding that the janitorial service agreement between Airway Cleaners and American Airlines was not a “comprehensive and exclusive agreement which had entirely displaced American Airlines’ duty to maintain the premises in a reasonably safe condition.”

The <em>DaCruz</em> serves as a reminder that the language in a cleaning and maintenance contract can impact the liability of an owner and vendor in a premises liability case and that the scope of a clause regarding the duty to maintain premises in a safe condition is important to consider.

Thank you to Gabriella Scarmato for her contribution to this post. Please contact <a href="mailto:agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.