concluding that indemnity provision stating that "contractor hereby assumes entire responsibility and liability for any and all damage or injury of any kind or nature to persons . . ., and to property . . ., and agrees to indemnify and save harmless the owner . . . from and against any and all claims, liability, loss, expense, damage or injury . . ." evidenced parties' unequivocal intention to have the contractor assume the entire risk of any liability arising from its workSummary of this case from COMBUSTION ENGG v. BAKER HUGHES
Argued February 5, 1973
Decided April 25, 1973
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, J. IRWIN SHAPIRO, J.
Robert Devine, Stephen W. O'Leary, Thomas J. Mason, Steven E. Pegalis and Stephen W. O'Leary, Jr. for appellant. Joseph Kelner and Gilbert S. Glotzer for respondent.
William J. Dougherty, John E. Trecartin, Peter M.J. Reilly and William C. Morris for third-party defendant-respondent.
The plaintiff slipped and fell upon a patch of ice located on a sidewalk which was part of an apartment complex owned by defendant, New York Life Insurance Company (New York Life). At the time of the accident, the sidewalk was clear of ice, except for this one patch which had formed as a result of a structural defect — a depression in the sidewalk. This defect had existed for several years prior to the accident.
Pursuant to the terms of a maintenance contract with New York Life, Park Estate Maintenance, Inc. (Park Estate) undertook, inter alia, to keep the walks of the apartment complex clear of snow and ice. The agreement did not, however, require Park Estate to repair structural defects in the sidewalk.
As a result of the fall, plaintiff brought an action for personal injuries against both New York Life and Park Estate. Thereafter, New York Life served a cross complaint against Park Estate, based upon common-law implied indemnity and contractual indemnity. The determination of the cross claim was, by stipulation of the parties, left to the Trial Judge.
At trial, the court dismissed plaintiff's suit against Park Estate at the close of plaintiff's evidence. The jury found in favor of the plaintiff against New York Life, and the trial court dismissed New York Life's cross complaint against Park Estate. The Appellate Division affirmed, without opinion.
Two questions are raised upon this appeal — first, whether there is evidence in the record sufficient to justify the verdict in plaintiff's favor on the main action; and, secondly, whether the court erred in dismissing New York Life's cross complaint against Park Estate.
Turning first to the main cause of action, we find that the record adequately supports the verdict in favor of the plaintiff against New York Life.
With respect to New York Life's cross claim against Park Estate, we agree that Park Estate would not be liable to New York Life upon the common-law theory of implied indemnity, but we believe that the indemnity provision in the maintenance contract binds Park Estate to indemnify New York Life.
The general rule is that a right of implied indemnification will arise in favor of one who is compelled to pay for another's wrong. (28 N.Y. Jur., Indemnity, § 11, p. 27.) It follows, then, that since New York Life, and not Park Estate, was found to be negligent in the main cause of action, New York Life cannot recover from Park Estate on the basis of common-law implied indemnity.
Dole v. Dow Chem. Co. ( 30 N.Y.2d 143) is not applicable, as that case applies only to apportionment of damages among joint or concurrent tort-feasors.
As to contractual indemnity, there is a different rule. It has long been recognized that a party may protect itself from losses resulting from its liability for negligence by means of an agreement to indemnify. The rule is restricted to the extent that indemnity provisions will not be construed to indemnify a party against his own negligence unless such intention is expressed in unequivocal terms. (E.g., Kurek v. Port Chester Housing Auth., 18 N.Y.2d 450.) That is not to say that the indemnity clause must contain express language referring to the negligence of the indemnitee, but merely that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement, and the surrounding facts and circumstances. (E.g., Levine v. Shell Oil Co., 28 N.Y.2d 205, 211-212; Jordan v. City of New York, 3 A.D.2d 507, 509, affd. 5 N.Y.2d 723.)
We are here concerned solely with the shifting of losses resulting from one party's liability for ordinary negligence, as distinguished from willful or gross negligence or for intentional torts.
The indemnity provision in question stated: "The contractor [Park Estate] hereby assumes entire responsibility and liability for any and all damage or injury of any kind or nature to persons whether employees or otherwise, and to property, including adjoining property caused by or resulting from the execution of the work or occurring in connection therewith, and agrees to indemnify and save harmless the owner, his agents, servants and employees from and against any and all claims, liability, loss, expense, damage or injury to persons and to property caused or occasioned directly or indirectly by the contractor or its work, or resulting from the use by the contractor, its agents or employees, of any materials, tools, implements, appliances, scaffolding ways, works, or machinery or other property."
We conclude that the parties clearly expressed their unequivocal intention to have Park Estate assume the entire risk of any liability arising from its work in removing snow and ice from the sidewalks, whether or not New York Life was negligent. (Cf. Centino v. Isbrandtsen Co., 11 N.Y.2d 690, cert. den. sub nom. Universal Term. Stevedoring Corp. v. Ibrandtsen Co., 370 U.S. 912; Salamy v. New York Cent. System, 1 A.D.2d 27; Puleo v. H.E. Moss Co., 159 F.2d 842 [2d Cir.].) This conclusion is based upon the broad and all-inclusive language contained in the indemnity agreement, and the fact that Park Estate undertook to remove snow and ice from New York Life's sidewalks and failed to carry out this undertaking.
That New York Life's liability to the plaintiff was a result of Park Estate's failure to remove the ice is evident from the record. The accident was not due solely to the structural defect, for which New York Life was responsible — it was due to the concurrence of that structural defect with a slippery condition, for which New York Life was also responsible, but which Park Estate had contracted to remove. Plaintiff did not catch his foot in the depression — he slipped on ice which had formed in the depression on a sidewalk which Park Estate had undertaken to clear. Since Park Estate was in breach of its undertaking to remove snow and ice, we conclude that New York Life was entitled, under the language of the indemnity provision, to indemnification from Park Estate for its liability to the plaintiff.
Accordingly, the order of the Appellate Division should be modified to the extent of allowing New York Life's cross claim against Park Estate.
The order of the Appellate Division should be affirmed. I agreed with the majority that the evidence was sufficient to support the plaintiff's verdict against the New York Life Insurance Company. I disagree that there is an adequate basis for the dependent cross claim against Park Estate Maintenance, Inc.
The issue I take with the majority depends on the interpretation properly to be put, in the factual context of this litigation, on the indemnity provisions of the contract between New York Life and Park Estate.
The trial court dismissed plaintiffs' complaint against Park Estate and as well dismissed New York Life's third-party complaint against Park Estate. Although an appeal was taken by New York Life with respect to the dismissal of its cross claim, no appeal was taken by the plaintiff with respect to the dismissal of its direct claim against Park Estate. Park Estate thus stands cleared of all liability to the plaintiff based on any claims that its negligence was a proximate cause of the plaintiff's fall and resulting injuries. It follows then that the only basis for liability, if any, of Park Estate to New York Life, lies in the provisions of the contract between them. (Cf. Dole v. Dow Chem. Co., 30 N.Y.2d 143.)
That agreement called for "a complete landscape maintenance program". Explicit provision was made for snow plowing and ice removal, spring cleanup, liming, fertilizing, lawn replacement, mowing and trimming, shrubbery pruning, hedge trimming, cultivation of trees, shrubbery and flowers, tree pruning and removal, and in general landscaping maintenance services with respect to lawns, shrubbery and trees. It is significant that there was no provision for sidewalk maintenance or repair. On trial New York Life's assisting operating superintendent conceded that New York Life had the duty to repair holes or depressions or damage to the sidewalks, and that company personnel under his supervision had both the duty to report defective conditions in the sidewalk where the plaintiff fell as well as to make repairs. The vice-president of Park Estate similarly testified, without contradiction, that his company had nothing to do with sidewalk repair. And this division of responsibility between the parties was conceded by New York Life in its brief in our court.
The contract indemnity clause provided in full: "The contractor [Park Estate] hereby assumes entire responsibility and liability for any and all damage or injury of any kind or nature to persons whether employees or otherwise, and to property, including adjoining property caused by or resulting from the execution of the work or occurring in connection therewith, and agrees to indemnify and save harmless the owner [New York Life], his agents, servants and employees from and against any and all claims, liability, loss, expense, damage or injury to persons or to property caused or occasioned directly or indirectly by the contractor or its work, or resulting from the use by the contractor, its agents or employees, of any materials, tools, implements, appliances, scaffolding ways, works or machinery or other property." (emphasis added). Thus indemnity, though broad and complete to the extent applicable, extended only to damages caused or occasioned by or resulting from the performance of work under the agreement. In the context of this case indemnity accordingly is restricted to reimbursement of New York Life for liability and damages sustained by New York Life in consequence of negligent snow plowing or ice removal.
The majority opinion concludes that the record supports the verdict against New York Life. It says nothing, however, of the basis on which it would predicate the liability of New York Life. As indicated, I agree that New York Life was properly found liable to the plaintiff. That liability stems from the duty of New York Life as owner of the sidewalk, to maintain the sidewalk in a reasonably safe condition. On this record, however, the only predicate (but clearly sufficient predicate) for concluding that New York Life had breached that duty was the evidence of the structural defect in the sidewalk to which the majority refers and the corollary evidence that New York Life had notice of the defect, as the testimony relied on by the plaintiff disclosed that the defect had existed for at least one year. I note again the trial court's dismissal of plaintiff's claim against Park Estate.
This case was given to the jury on the theory that they might return a verdict for the plaintiff against New York Life only if they found the latter responsible for the depression in the sidewalk. The accumulation of water in the depression and the later formation of ice were links in the chain of causation, but it was never suggested that the liability of New York Life was based on anything but its responsibility for the structural defect in the sidewalk.
The repair of structural defects in the sidewalks, the parties agreed, was not within the scope of the work to be performed by Park Estate. Accordingly, New York Life's loss here was not caused or occasioned by nor did it arise out of the work to be performed by Park Estate under its landscape maintenance agreement. That being so Park Estate has no liability in contract to New York Life under the provisions of the indemnity provision in their agreement.
The order of the Appellate Division should be affirmed in all respects.
Judges BURKE, BREITEL and GABRIELLI concur with Judge JASEN; Judge JONES dissents and votes to affirm in a separate opinion in which Chief Judge FULD and Judge WACHTLER concur.
Order modified in accordance with the opinion herein and, as so modified, affirmed, with costs to plaintiff-respondent payable by defendant-appellant and to defendant-appellant payable by defendant-respondent.