OPINION OF THE COURT
Plaintiff has brought this personal injury action against defendant, a company that entered into a snow removal contract with a property owner. We are called upon to determine whether the company may be held liable to plaintiff for injuries she sustained when she slipped and fell on the premises. To
On January 28, 1994 plaintiff slipped and fell in a parking lot owned by her employer, Miltope Corporation. Attributing her fall to an "icy condition," plaintiff sued Melville Snow Contractors, the company under contract to plow and remove snow from the premises.
Supreme Court denied the motion, concluding that Melville had failed to show that "there was a reasonable explanation for the existence of the ice * * * other than a failure on its part to remove snow and ice in a non-negligent manner." The Appellate Division reversed, granted Melville's motion for summary judgment and dismissed the complaint. The Court held that Melville owed plaintiff no duty of care. Important for purposes of this appeal, the Court also held that plaintiff's "allegation that [Melville] created or exacerbated the hazardous condition did not provide a basis for liability." (283 A.D.2d 546, 547.) We now affirm the order of the Appellate Division, but on different grounds.
Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party (see Darby v Compagnie Natl. Air France, 96 N.Y.2d 343, 347 ; Pulka v Edelman, 40 N.Y.2d 781, 782 ). Here, the issue is whether any such duty ran from Melville to plaintiff, given that Melville's snow removal contract was with the property owner. As we have often said, the existence and scope of a duty is a question of law requiring courts to balance sometimes competing public policy considerations (see e.g. Palka v Servicemaster Mgt. Servs. Corp., 83 N.Y.2d 579, 585-586 ; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 N.Y.2d 220, 226-227 ).
Under our decisional law a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party (see Eaves Brooks, 76 NY2d at 226). Seventy-four years ago, in H.R. Moch Co. v Rensselaer Water Co. (247 N.Y. 160
Moch, Eaves Brooks and Palka identify contractual situations involving possible tort liability to third persons. Our analysis begins with Moch. There, the defendant entered into a contract with the City of Rensselaer to supply water to the City for various purposes, including water at the appropriate pressure for fire hydrants. A building caught fire and, because the defendant allegedly failed to supply sufficient water pressure to the hydrants, the fire spread and destroyed the plaintiff's warehouse. Although the contract was valid and enforceable as between the City and the defendant, we concluded that the contract was not intended to make the defendant answerable to anyone who might be harmed as a result of the defendant's alleged breach. Because the plaintiff company was not a third-party beneficiary, it could not sue for breach of contract. Nor, we held, could the plaintiff succeed in tort. "[L]iability would be unduly and indeed indefinitely extended by this enlargement of the zone of duty" (Moch, 247 NY at 168). We observed, however, that irrespective of the attendant contractual obligations, tort liability to a third person may arise where "the putative wrongdoer has advanced to such a point as to have launched a force or instrument of harm, or has stopped where inaction is at most a refusal to become an instrument for good" (id. [emphasis added]).
In Eaves Brooks we continued the theme, identifying detrimental reliance as another basis for a contractor's liability in tort to third parties. There, a commercial tenant sought to recover for property damage sustained when a sprinkler system malfunctioned and flooded the premises. The tenant sued the
Finally, in Palka, we considered whether a maintenance company under contract to provide preventive maintenance services to a hospital assumed a duty of care to the plaintiff, a nurse who was injured when a wall-mounted fan fell on her as she was tending to a patient. The contract between the parties was "comprehensive and exclusive" (Palka, 83 NY2d at 588) and required the maintenance company to inspect, repair and maintain the facilities, and to train and supervise all support service personnel. The company's obligation to the hospital was so broad that it entirely displaced the hospital in carrying out maintenance duties and became "the sole privatized provider for a safe and clean hospital premises" (id. at 589). Because the company's contractual obligation was comprehensive, we found this to be another instance in which a contracting provider owed a duty to "noncontracting individuals reasonably within the zone and contemplation of the intended safety services," including the plaintiff (id.).
In sum, Moch, Eaves Brooks and Palka identify three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, "launche[s] a force or instrument of harm" (Moch, 247 NY at 168); (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties (see Eaves Brooks, 76 NY2d at 226) and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely (see Palka, 83 NY2d at 589). These principles are firmly rooted in our case law, and have been generally recognized by other authorities (see e.g. Restatement [Second] of Torts § 324A).
Under the agreement, Melville was obligated to "clear, by truck and plow, snow from vehicular roadways, parking and loading areas, entrances and exits of the captioned property when snow accumulations exceed three (3) inches." In addition, Melville agreed that upon Miltope's request, it would spread a mixture of salt and sand on certain areas of the property. As for snow removal, Melville contracted to plow "during the late evening and early morning hours, and not until all accumulations have ceased, on a one time plowing per snowfall basis. If there is a plowable accum. by 4 A.M., and it is still snowing, Melville will provide a limited plowing to open up the property before 9 A.M., and if accum. continue, Melville will plow a second time during the day or in the evening after all accumulations have ended."
By the express terms of the contract, Melville was obligated to plow only when the snow accumulation had ended and exceeded three inches. This contractual undertaking is not the type of "comprehensive and exclusive" property maintenance obligation contemplated by Palka. Melville did not entirely absorb Miltope's duty as a landowner to maintain the premises safely (see Palka, 83 NY2d at 584). Indeed, the contract stated that "[i]t is the responsibility of the property manager or owner to decide whether an icy condition warrants application(s) of salt-sand by Melville. Owner must inspect property within 12 hours of work. Any defect in performance must be communicated immediately." Although Melville undertook to provide snow removal services under specific circumstances, Miltope at all times retained its landowner's duty to inspect and safely maintain the premises. Melville was under no obligation to monitor the weather to see if melting and refreezing would create an icy condition.
Inasmuch as plaintiff failed to allege detrimental reliance on Melville's continued performance of its contractual obligations (see Eaves Brooks, 76 NY2d at 226), we look to the other possible basis for liability: whether Melville "launched a force or instrument of harm" (Moch, 247 NY at 168). In this context, a defendant who undertakes to render services and then
Accordingly, we agree with the Appellate Division that Melville owed no duty of care to plaintiff and therefore cannot be held liable in tort. However, we take this opportunity to address and clarify an aspect of that Court's decision.
In its order, the Appellate Division held that plaintiff's "allegation that [Melville] created or exacerbated the hazardous condition did not provide a basis for liability." (283 AD2d at 547.) This ruling appears to suggest that a contractor such as Melville who creates or exacerbates a hazardous condition owes no duty of care to third persons who may be injured by the contractor's actions. To the extent the Appellate Division's language may be so interpreted, it is in conflict with the holdings of the other Departments
The order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs.