Dillon v. United States of America et al
Filing
36
ORDER granting in part and denying in part 25 Motion for Summary Judgment; granting in part and denying in part 26 Motion for Summary Judgment; granting 27 Motion for Summary Judgment; granting 28 Motion for Summary Judgment. Signed by Hon. Michael A. Telesca on 7/18/2012. (BMB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KIMBERLY DILLON,
Plaintiff,
10-CV-6112T
DECISION
and ORDER
v.
UNITED STATES OF AMERICA,
UNITED STATES POSTAL SERVICE,
ROSE TRUCKING CO., and
DIRENZO’S JANITORIAL SERVICE, INC.
Defendants.
________________________________________
INTRODUCTION
Plaintiff
Kimberly
Dillon
(“Dillon”)
brings
this
action
against defendants the United States of America (the “United
States”),
the
United
States
Postal
Service
(the
“USPS”)
(collectively the “Government” or the “Post Office”), Rose Trucking
Co. (“Rose”) and Direnzo’s Janitorial Service, Inc. (“Direnzo”)
seeking damages for injuries allegedly sustained from a slip and
fall in a Post Office parking lot. According to the plaintiff, the
defendants were negligent in maintaining the parking lot and
sidewalk area of the post office, located in Fairport, New York,
and allowed ice and snow to accumulate, causing plaintiff to slip
and fall while walking out of the post office.
The Government has
filed cross-claims for indemnification against Rose and Direnzo,
who contracted with the Post Office to remove snow and ice from the
parking lot and sidewalks respectively.
On January 30, 2012, Rose and Direnzo each filed separate
motions for summary judgment against Dillon and the Post Office.
Rose and Direnzo argue, respectively, that neither party owes a
duty of care to Dillon, and therefore neither party can be held
liable in tort to the plaintiff.
With respect to the USPS, Rose
and Direnzo claim that they satisfied their contractual obligations
to promptly remove snow and ice accumulations, and therefore cannot
be held liable to the Post Office for breach of contract or
indemnification.
Dillon does not oppose Rose and Direnzo’s motions with respect
to their claim that they owed no duty of care to her, and therefore
cannot be held liable directly to her for negligence.
Dillon
claims, however, that summary judgment in favor of Rose and Direnzo
on
all
claims
is
inappropriate
because
Rose and
Direnzo
are
contractually obligated to indemnify the USPS for her injuries.
The Post Office opposes Rose and Direnzo’s motions for summary
judgment, and cross-moves for partial summary judgment seeking a
declaration that Rose and Direnzo are contractually obligated to
indemnify the USPS. Rose and Direnzo both oppose the USPS’s motion
arguing that the question of contract interpretation is moot
because neither acted negligently.
For the reasons set forth below, I grant in-part and deny inpart Rose and Direnzo’s motions for summary judgment.
I find that
because Rose and Direnzo have established that they owed no direct
duty of care to the plaintiff, they may not be directly held liable
in negligence to the plaintiff, and accordingly, I grant their
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motions to dismiss plaintiff’s negligence claims against them.
I
find, however, that neither Rose nor Direnzo is entitled to summary
judgment against the Post Office on the issue of indemnification,
and I therefore deny their motions for summary judgment against the
Post Office.
Finally, I find that the contracts at issue between
Rose and Direnzo, respectively, and the Post Office require Rose
and Direnzo to indemnify the Post Office, and I therefore grant the
Post Office’s motion for partial summary judgment against Rose and
Direnzo on the issue of contractual indemnification.
BACKGROUND
According to the Amended Complaint, on the morning of March
10, 2008, Plaintiff Kimberly Dillon drove to the United States Post
Office located at 6740 Pittsford-Palmyra Road in Fairport, New York
(the “Fairport Post Office”).
Upon arriving at the Post Office,
Dillon parked her car in the Post Office parking lot, and then
walked into the Post Office. According to Dillon, upon exiting the
Post Office she walked back along the sidewalk to the parking lot
and as she stepped down from the sidewalk to the parking lot, she
slipped and fell on ice left along the curb, and as a result
suffered injuries to both of her wrists.
According to the Post Office, between March 7 and 9, 2008,
upstate New York was hit with one of the worst winter storms of the
season, which dropped more than fifteen inches of snow over the
Rochester area, including Fairport, New York.
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The Post office
claims that temperatures during this time ranged from above to
well-below freezing causing some of the fallen snow to melt and refreeze into ice.
It is undisputed that Rose and Direnzo each had contracts with
the USPS for snow removal at the Fairport, New York location.
According to the Post Office, pursuant to its contract with Rose,
Rose was responsible for removing snow from the parking lot anytime
three or more inches of snow fell, and for plowing or salting on
request. Direnzo provided janitorial services for the Post Office,
and
as
part
of
its
agreement
to
provide
such
services,
was
responsible for removing snow from sidewalks and salting sidewalks.
Rose
and
Direnzo
each
assert
that
despite
their
contractual
obligations, Post Office employees retained some supervision and
snow removal duties for both the parking lot and sidewalks.
DISCUSSION
I.
Jurisdiction, Choice of Law, and Standard of Review
This Court has jurisdiction over Plaintiff’s claim against the
Government pursuant to the Federal Tort Claims Act, 28 U.S.C. §
1346.
This Court has supplemental jurisdiction over Plaintiff’s
negligence claims against Rose and Direnzo pursuant to 28 U.S.C. §
1367(a) (granting supplemental jurisdiction over any claims that
“form part of the same case or controversy” when the court has an
independent basis for subject matter jurisdiction).
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The Federal Tort Claims Act provides that the law applied to
tort claims against the government is the “law of the place where
the act or omission occurred,” in this case New York.
28 U.S.C. §
1346(b)(1); see Caban v. United States, 728 F.2d 68, 72 (2d Cir.
1984).
In contrast, the Government’s contractual indemnification
claim is governed by federal law because the claim arises from a
federal contract.
See United States v. Seckinger, 397 U.S. 203,
209, 90 S. Ct. 880, 884, 25 L. Ed. 2d 224 (1970).
Rule 56 of the Federal Rules of Civil Procedure (“Rule 56")
provides that summary judgment shall be granted if the pleadings
and evidence show that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.”
The moving party has the initial burden to demonstrate the
absence of any genuine issue of material fact or to show that the
non-moving party “has failed to make a sufficient showing on an
essential element” of its claim.
U.S. 317, 323 (1986).
Celotex Corp. v. Catrett, 477
The burden then shifts to the non-moving
party to show the existence of a disputed issue of material fact,
Boyce v. Bank of New York, 226 F. App'x 17, 18 (2d Cir. 2006), or
make a showing sufficient “to establish the essential elements []
on which it bears the burden of proof at trial,” Liles v. New York
City Dept. of Educ., 516 F. Supp. 2d 297, 307 (S.D.N.Y. 2007).
The
court must decide if the moving party has met its burden of
production and is entitled to summary judgment even if the motion
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is unopposed.
Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co.,
373 F.3d 241, 242, 244 (2d Cir. 2004).
In considering the motion,
all evidentiary inferences and ambiguities must be resolved in
favor of the party against whom summary judgment is sought.
Gallo
v. Prudential Residential Services, 22 F.3d 1219, 1223 (2d Cir.
1994).
II.
To
Rose and Direnzo’s motion for summary judgment to dismiss
Dillon’s tort claims.
state
a
claim
of
negligence
against
a
defendant,
a
plaintiff must, inter alia, establish that the defendant owed a
duty of care to the plaintiff.
See Palka v. Servicemaster Mgmt.
Services Corp., 83 N.Y.2d 579, 584-85, 634 N.E.2d 189, 192 (1994).
The existence and scope of a duty of care is a question of law.
Church ex rel. Smith v. Callanan Indus., Inc., 99 N.Y.2d 104,
110-11, 782 N.E.2d 50, 52 (2002).
In the instant case, although
Dillon now concedes that neither Rose nor Direnzo owed a duty of
care to her, she alleged in her Amended Complaint that Rose and
Direnzo did owe her a duty of care based on their contractual
obligations to the Post Office to remove snow and ice from the
parking lot and sidewalks of the Fairport Post Office.
I find, however, that plaintiff has failed to establish that
Rose or Direnzo owed her a duty of care with respect to their
contractual
obligations
Fairport Post Office.
to
the
USPS
to
remove snow
from the
Generally, a contractual obligation between
two parties does not create a legal duty between a party to the
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contract and a person not a party to the contract.
York
State
recognizes
some
exceptions
exceptions apply in this case.
to
Id.
that
While New
none
of
the
Specifically, under New York law,
a plaintiff not a party to a contract can establish a duty of care
arising from a contract:
(1) where the promisor unleashes a force
of harm while fulfilling its contractual
obligations,
(2) where a third-party reasonably relied
on the promisor’s continuing performance of
the contractual obligation and suffered injury
as a result, and
(3) where the promisor took
displaced the promisee’s duty to
party.
over and
a third-
Id. at 111-12, 782 N.E.2d at 53.
A person does not unleash a force of harm when the purpose of
the contractual obligation he is undertaking is to mitigate a
preexisting risk. Church, 99 N.Y.2d at 112, 782 N.E.2d at 53.
In
the context of snow removal, a person “cannot be said to have
created or exacerbated a dangerous condition” even if “residual
snow and ice” remain after plowing.
Espinal v. Melville Snow
Contractors, Inc., 98 N.Y.2d 136, 141-42, 773 N.E.2d 485, 489
(2002).
On the morning of March 10, Rose removed snow from the
Post Office’s parking lot.
Invoice
#543.
Direnzo’s
See Ex. 15 to O’Connor Affidavit,
employee
shoveled
and
salted
the
sidewalks. See Ex. I in Chelus Declaration, Deposition of Maryanne
Beldue, at 22.
Both Rose and Direnzo’s actions attempted to
Page -7-
mitigate the dangers caused by a build up of snow and ice, and
neither Dillon nor the Government suggest that either created or
exacerbated the condition.
Accordingly, I find that neither Rose
nor Direnzo “unleashed a force of harm.”
Nor has plaintiff established that she detrimentally relied on
the contracts between Rose and Direnzo, respectively, and the USPS.
To establish detrimental reliance on promises contained in a thirdparty contract, a plaintiff must demonstrate that he or she had
knowledge
of the
contractual obligations
on
which he
or
she
allegedly relied. See Occhino v. Citigroup Inc., CV-03-5259 (CPS),
2005 WL 2076588 (E.D.N.Y. Aug. 26, 2005).
In this case, there is
no evidence suggesting that Dillon, prior to her slip and fall,
had any knowledge of Rose and Direnzo’s snow removal duties.
Accordingly, I find that the “detrimental reliance” exception to
liability based on a third-party contract does not apply here.
Finally, Dillon has failed to establish that either Rose or
Direnzo
entirely
customers.
displaced
the
Post
Office’s
duties
to
its
A landowner’s duty to maintain its premises in a safe
condition can only be displaced with a comprehensive and exclusive
property maintenance agreement.
N.E.2d at 489.
Espinal, 98 N.Y.2d at 141, 773
An agreement to remove snow only upon request or
after a certain amount of snowfall does not fully displace the
property owner’s duty.
Id.
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Rose’s contract provided that it would remove snow from the
parking lot upon the conditions of either three or more inches of
snowfall or at the request of the USPS. Direnzo’s contract limited
its duties to shoveling and salting the sidewalks as part of its
janitorial services.
The USPS retained supervision of both areas.
Neither contract was a comprehensive or exclusive maintenance
agreement
whereby
either
Rose
or
Direnzo
assumed
complete
responsibility for maintaining the Post Office property in a safe
condition.
Accordingly, the third exception listed above does not
apply, and as a result, plaintiff has failed to establish that
either Rose or Direnzo owed her a duty of reasonable care.
I
therefore grant Rose and Direnzo’s motions for summary judgment
dismissing Dillon’s negligence claims against them.
III. Contractual Indemnification
Pursuant to Rose and Direnzo’s respective contracts with the
Post Office, the Post Office seeks indemnification from Rose and
Direnzo should it be found liable for plaintiff’s injuries.
Rose
and Direnzo move for summary judgment against the Post Office
seeking dismissal of the Government’s indemnification claim on
grounds that they were not negligent in carrying out their duties
under their respective contracts, and therefore are not required to
indemnify
the Government.
The
Post
office
opposes
Rose and
Direnzo’s motions, and cross-moves for partial judgment in its
favor
on
the
issue
of
indemnification.
Page -9-
Specifically,
the
Government seeks a declaration that pursuant to their respective
contracts, Rose and Direnzo are obligated to indemnify the Post
Office should it be found liable for Dillon’s injuries.
For the
reasons set forth below, I find that there are material questions
of fact as to whether or not Rose or Direnzo acted negligently
which preclude granting their motion for summary judgment.
I
further find that as a matter of law, under the contracts entered
into by Rose and Direnzo with the Post Office, Rose and Direnzo
each owe an independent, and slightly different, obligation of
indemnification to the Post Office.
A.
Questions of Fact exist as to whether or not Rose or
Direnzo negligently performed their snow removal
duties.
The plaintiff alleges that she sustained her injury when she
slipped on snow and ice that had built up between the curb of the
Post Office sidewalk and the parking lot.
At the time of the
accident, Dillon states that she observed ice “caked” between the
sidewalk and the parking lot along the curb.
See Ex. H in Chelus
Declaration, Deposition of Kimberly Dillon, at 30.
Although there
is evidence that Rose and Direnzo had plowed and shoveled the areas
in question, there is no evidence in the record to establish as a
matter of law that neither party was negligent in removing snow or
ice from the area.
Whether there was a build up of ice and/or snow
in the area where plaintiff fell, and whether the build up was
unreasonable under the conditions and was the proximate cause of
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plaintiff’s injuries are questions of fact that cannot be properly
decided on summary judgement.
Indeed, Rose concedes that “there
are questions concerning whether Rose Trucking Co. was negligent”
with respect to removal of snow from the parking lot.
Opp. at 2.
See Rose
Accordingly, I deny Rose and Direnzo’s motions for
summary judgment against the Post Office.
B.
A
Rose and Direnzo are obligated to indemnify the Post
Office
duty
to
indemnify
may
be
created
by
the
contractual
relationship between the indemnitor and the indemnitee.
See
McDermott v. City of New York, 50 N.Y.2d 211, 216, 406 N.E.2d 460,
462 (1980).
Where a duty to indemnify exists, an indemnitor may be
required to indemnify an indemnitee for injuries to a third-party
based on its contractual obligations, despite owing no independent
legal duty to the injured third-party.
See Raquet v. Braun, 90
N.Y.2d 177, 183, 681 N.E.2d 404, 407 (1997).
In the instant case,
the Post Office contends that the contracts entered into by the
parties
contained
provisions
requiring
Rose
and
Direnzo
to
indemnify the Post Office for injuries occurring to third-parties.
In interpreting the indemnification provisions at issue in
this case, this Court is guided by the Second Circuit Court of
Appeals’ Decision in Gibbs v. United States, 599 F.2d 36, 40 (2d
Cir. 1979), where the Court of Appeals construed an indemnification
provision substantially similar to the provisions before this
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court.
The provision in Gibbs, and those at issue here, provide
that:
The Contractor shall save harmless and
indemnify ... all claims ... resulting from
... any personal injury ... growing out of ...
any work performed under or related to this
contract...1
In interpreting this provision, the Second Circuit held that
the contract language expressly established an obligation by the
Contractor to indemnify the Government, regardless of whether or
not the Contractor acted negligently.
It further held that the
language “save harmless and indemnify ... for all claims” was a
strong and explicit agreement that the Contractor would fully
indemnify the USPS even for liability that resulted from the USPS’s
own negligence.
See Gibbs, 599 F.2d at 41-42.
The Second
Circuit’s interpretation of the scope of indemnification in Gibbs
is controlling here.
However, since the last phrase of the
indemnification provisions in Rose and Direnzo’s contracts differ
slightly from each other and from the provision in Gibbs, this
Court must consider each separately.
1
The indemnification provision at issue in Gibbs provided that:
“The Contractor shall save harmless and indemnify the Postal Service and its
officers, agents, representatives, and employees from all claims, loss,
damage, actions, causes of action, expense and/or liability resulting from,
brought for, or on account of any personal injury or property damage received
or sustained by any person, persons, or property growing out of, occurring, or
attributable to any work performed under or related to this contract,
regardless of whether such claims, loss, damage, actions, cause of actions,
expense and/or liability may be attributable to the fault, failure, or
negligence of the Contractor.”
See Gibbs v. United States, 599 F.2d 36, 40
(2d Cir. 1979).
Page -12-
1. The Direnzo Contract
The indemnification provision in Direnzo’s contract provides
that:
The contractor shall save harmless and
indemnify the Postal Service and its officers,
agents, representatives, and employees from
all claims, loss, damage, actions, causes of
action, expense and/or liability resulting
from, brought for, or on account of any
personal injury or property damage received or
sustained by any person, persons, or property
growing out of, occurring, or attributable to
any work performed under or related to this
contract, regardless of whether such claims,
loss, damage, actions, cause of actions,
expense and/or liability may be attributable
to the fault, failure, or negligent acts or
omissions of the contractor . . . .
See Ex. G in Chelus Declaration, at 44.
(emphasis added)
This
provision is almost identical to provision construed in Gibbs, and
therefore, following the Second Circuit’s interpretation of this
provision, I find that this provision puts no limit on the grant of
full indemnification by Direnzo to the USPS.
Accordingly, I find
that Direnzo must fully indemnify the USPS even if the USPS is
found liable for Dillon’s injuries, and those injuries are found to
have grown out of, occurred, or were attributable to any work
performed under or related to Direnzo’s contract, regardless of
whether Direnzo acted negligently.
2.
The Rose Contract
The indemnification provision of Rose’s contract provides
that:
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The contractor shall save harmless and
indemnify the Postal Service and its officers,
agents, representatives, and employees from
all claim, loss, damage, actions, causes of
action, expense and/or liability resulting
from, brought for, or on account of any
personal injury or property damage received or
sustained by any person, persons, or property
growing out of, occurring, or attributable to
any work performed under or related to this
contract, resulting in whole or in part from
the negligent acts or omissions of the
contractor...
See Ex. C in Carlson Declaration, Rose Contract 2.1(f), at 7-8
(emphasis added)
By inclusion of the phrase “resulting in whole or in part from
the
negligent
indemnification
acts
or
provision
omissions
of
contemplates
the
that
contractor”
Rose
indemnify the USPS only if Rose acted negligently.
will
the
fully
Accordingly, I
find that Rose must fully indemnify the USPS if it is later found
that Dillon’s injuries grew out of, occurred, or were attributable
to Rose’s negligence, regardless of whether the USPS was also
negligent.
Rose argues that it is premature to consider whether or not it
is obligated to indemnify the Post Office because under New York
law,
a
contract
providing
for
indemnification
despite
the
indemnitee’s negligence is void under certain circumstances.
See
N.Y. Gen. Oblig. Law § 5-322.1 (McKinney).
Accordingly, under New
York law, a party seeking indemnification from another party must
first prove that it itself was not negligent before it can attempt
Page -14-
to invoke indemnification.
See Cava Const. Co., Inc. v. Gealtec
Remodeling Corp., 58 A.D.3d 660, 662, 871 N.Y.S.2d 654 (2009); see
also N.Y. Gen. Oblig. Law § 5-322.1 (McKinney).
In this case,
however, federal, not State law applies, and pursuant to the Second
Circuit’s decision in Gibbs, an indemnitor can be required to
indemnify
an
negligently.
indemnitee
even
where
the
indemnitee
has
acted
Accordingly, because as a matter of law Rose may be
required to indemnify the Post Office even if the Post Office is
found to have acted negligently, it is not premature to make such
a finding.
CONCLUSION
For the reasons set forth above, I grant in-part and deny inpart Rose and Direnzo’s motions for summary judgment, and grant the
Government’s motion for partial summary judgment.
Because Dillon
has failed to establish that either Rose or Direnzo owed the
plaintiff a duty of care, I grant Rose and Direnzo’s motions to
dismiss her negligence claims against them.
Because a question of
fact exists as to whether or not Rose, Direnzo, or the Post Office
acted negligently in allegedly causing the plaintiff’s injuries, I
deny Rose and Dirrenzo’s motions for summary judgment seeking a
declaration that they are not obligated to indemnify the Post
Office should it be found liable for Dillon’s injuries.
I find that the Government has established as a matter of law
that
Rose
and
Direnzo
each
owe
a
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contractual
obligation
of
indemnification to the Post Office as provided in their separate
agreements. Accordingly, I find that Rose must fully indemnify the
USPS if it is found that Dillon’s injuries were attributable to
Rose’s negligence.
I find that Direnzo must fully indemnify the
USPS pursuant to its agreement provided the USPS is found liable
for
Dillon’s
injuries,
and
her
injuries
are
found
to
be
attributable to any work performed under or related to Direnzo’s
contractual obligations.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
_____________________________________
MICHAEL A. TELESCA
United States District Judge
Dated:
July 18, 2012
Rochester, New York
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