Property Maintenance Injuries Tort Liability Cases
In Palka v. Servicemaster Mgt. Servs. Corp. the Court of Appeals considered the case of a hospital where all maintenance and inspection functions, including that of inspecting the fan which eventually fell and injured the plaintiff, had been assumed by the defendant.
The Court found that the entire purpose of the service contract between the hospital and the defendant was for the defendant "to become the sole privatized provider for a safe and clean hospital premises" (at 589), and held that this exclusivity of management and control justified the extension of a duty of care, and hence of tort liability, as to all persons within the foreseeable area of the safety services.
The plaintiff relies on the Palka case , as well as cases flowing from it, such as Spooner v. National El. Inspection Servs. (161 Misc 2d 73), which involved elevator inspections.
To the same effect, and directly on point, is Cossu v. JWP Inc. (173 Misc 2d 277), where the court held that the company which had contracted to repair and maintain streetlights was liable to a motorist injured when a streetlight fell on his moving vehicle.
The court there concluded that the exclusivity of maintenance obligation, which is the heart of the holding in Palka, had been established.
The court respectfully disagrees with the holding in Cossu v. JWP Inc. . As explained by the Appellate Division, Second Department, in Keshavarz v. Murphy (242 AD2d 680), the necessary consideration for the application of the rule in Palka (supra, at 681) is whether the movant's contract with the City was "a comprehensive and exclusive property maintenance obligation which the parties could have reasonably expected to displace the City's duty as a landowner to maintain the property safely" (see also, Sapone v. Commercial Bldg. Maintenance Corp., supra; Riekers v. Gold Coast Plaza, 255 AD2d 373; Girardi v. Bank of N. Y. Co., 249 AD2d 443; Miranti v. Brightwaters Racquet & Spa, 246 AD2d 518).
Considering all of the circumstances, it cannot be said that the movant undertook the comprehensive obligation which was present in Palka, or that the parties could reasonably have expected all responsibility for the traffic light to have passed to the movant.
That Francois v. City of New York and Pizzaro v. City of New York are still good law is shown by the fact that the Appellate Division, Second Department, continues to cite to them, albeit in cases not involving street lighting contractors, most recently in Daddio v. American Golf Corp. (238 AD2d 301).