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>Contractor Loses Blame Game
by Ron Davis

Blame for a trip-and-fall injury at a New York shopping center has shifted from one custodian contractor to another, while leaving the center’s owner so far blameless.

The shopping center is Turnpike Plaza in suburban New York City, and the injury occurred when a customer fell after stepping into a pothole in the center’s parking lot. She sued the shopping center and the contractors that the center’s owner hired to sweep and clean the property, including the parking lot where the injury occurred.

A cleaning and maintenance agreement required one of the contractors to perform “custodial and/or sweeping and cleaning” of the Turnpike Plaza parking lot. Moreover, the contractor agreed to “monitor and report shopping center safety problems, including but not limited to defects such as potholes…in the parking lot.”

Finally, the contractor agreed to protect the center’s owner “from any and all damage…caused by, resulting from, arising out of, or occurring in connection with…the execution of its [the contractor’s] work….”

Meanwhile, the contractor hired a subcontractor to perform “cleaning services,” which included sweeping and picking up trash bags in the parking lot of Turnpike Plaza.

So when the injured customer sued the shopping center’s owner, she included in her lawsuit both the custodian contractor and the cleaning-service subcontractor. As expected, the shopping center’s owner claimed that the contractor and subcontractor were responsible for the customer’s injury.

The custodian contractor pointed out, however, that at the time of the injury, its contract with Turnpike Plaza had expired. And although, the two parties had subsequently agreed to extend the contract, the contractor argued that the lapse absolved it from blame.

A New York appellate court rejected the argument of the contractor, noting that even though the contract had expired, “the conduct of the two parties evidenced their mutual assent to a new contract embracing the same provisions and terms as their prior contract. Accordingly, the contract obligating the contractor was in effect at the time of the woman’s injury.”

As for the subcontractor, the court found that since it had no duty to monitor the parking lot for potholes, the claim against it should be dismissed. (Curreri v. Heritage Property Investment Trust, Inc., 2008 WL 391197 [N.Y.A.D. 2 Dept.])

Decision: February 2008
Published: February 2008



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