Lead Opinion
OPINION OF THE COURT
Appellants, as third-party plaintiffs in these actions, seek to hold a municipality proportionately liable to the extent that its negligent conduct contributed to the occur
As a result of an extensive fire at the Holiday Inn in the Town of Greece, several actions for wrongful death, personal injuries and property damage were brought by or on behalf of motel guests. Named as defendants were the Holiday Inns, Inc., which operated the motel pursuant to a lease; the corporation which undertook the development and construction of the motel, its principals and its successors; the present and previous owners of the premises; and the Town of Greece. The theory of negligence pleaded against the town was predicated on its failure to require the motel owners to comply with applicable fire and safety laws and its failure to inspect the construction of the motel adequately. Because plaintiffs had, in this regard, alleged no more than a violation of a general duty owed by the town to the public at large, the comрlaints against the town were held insufficient to state a cause of action and were therefore dismissed (Garrett v Town of Greece,
Thereafter, the remaining defendants/third-party plaintiffs sought to implead the Town of Greece, alleging that, to the extent the several plaintiffs’ damages were caused or exacerbated by the town’s wrongful conduct, it is liable to third-party plaintiffs for “contribution or indemnification”. The town’s liability is based on an alleged breach of a special duty owing third-party plaintiffs in that it: (1) permitted alterations in the originally approved building .plans which did not comply with applicable fire and safety laws, codes and regulations; (2) issued a certificate of
The town’s motions to dismiss the third-party complaints
The issue is whether the town, having been held to owe no duty to plaintiff motеl guests under the circumstances of this case can nevertheless be held proportionately liable to the owners and lessee/operator of the motel for its breach of an independent duty owing these parties. Generally, apportionment rights among wrongdoers arise when “two or more tort-feasors share in responsibility for an injury, in violation of duties they respectively owed to the injured person” (Smith v Sapienza, 52 NY2d 82, 87; Holodook v Spencer,
That being the case, contribution rights on behalf of concurrent wrongdoers have been upheld in numerous circumstances in which the injured person has himself had no right of recovery against a particular third party. Thus, in Dole v Dow Chem. Co. (supra), the defendant manufacturer of a chemical alleged to have caused the death of plaintiff’s decedent was permitted to assert a contribution claim against the decedent’s employer, despite the bar imposed by the Workers’ Compensation Law to direct suit by plaintiff against the employer. In Klinger v Dudley (supra), we recognized contribution rights in favor of tоrtfeasors against third parties as to whom plaintiffs had no direct right of recovery due either to their failure to join the third parties as defendants or to some special defense barring recovery.
Of course, the holdings in such cases do not resolve the precise question raised on the present appeal, for those cases involved circumstances in which the third party had no liability to the injured person, in contrast to the absence of a duty owed him. Nevertheless, these cases demonstrate that proрortionate liability rights among joint tort-feasors are analytically distinct from the rights and obligations of the parties to the injured person and that the nexus of duty between wrongdoers may exist independently of the respective duties owing a plaintiff.
The issue of whether an obligation of proportionate liability can exist on the part of one who owes no duty to
Nolechek involved an action brought by a father, both individually and as administrator of his sоn’s estate, against a landowner and others for the wrongful death of his son resulting from a motorcycle accident. The complaint alleged that the landowner had negligently permitted a dangerous condition to exist on his property which caused the accident. The landowner interposed a counterclaim against the father, seeking to impose proportionate liability on the father for his wrongful conduct in providing his vision-impaired son with a motorсycle. This court permitted the counterclaim to stand, holding that a tort-feasor cast in damages for injuries to a child may seek proportionate recovery, there termed “contribution”, from the parent where the child’s injury and the tort-feasor’s liability resulted, in part, from negligently entrusting the child with a dangerous instrumentality. Analyzing the question of the duty owed by the father to the landowner as distinct from the duty (or lack thereof) owed by the father to the son, this court concluded thаt the absence of an actionable duty running from father to son did not prevent the landowner from asserting a claim against the father, based
Nolechek’s recognition of the proportionate liability clаim notwithstanding the absence of a duty owed directly to the injured person is, we believe, entirely consistent with the policy underlying principles of apportionment and comparative negligence. If an independent obligation can be found on the part of a concurrent wrongdoer to prevent foreseeable harm, he should be held responsible for the portion of the damage attributable to his negligence, despite the fact that the duty violated was not one owing directly to the injured person. Thus if the town owed a duty to appellants to protect them from foreseeable risks of harm, the breach of which has combined with appellants’ own negligence to render them answerable in damages to the injured motel guests, the town should be required to bear responsibility for the injury its negligence has caused appellants, in proportion to its own degree of fault.
We turn, then, to the instant case аnd the question whether the town owed any duty to appellants — the owners and the lessee/operator of the motel — to use reasonable care in issuing a certificate of occupancy and approving alterations in construction to ensure that the premises were not in blatant violation of fire and safety laws. When a claim is made that a municipality has negligently exercised a governmental function, liability turns upon the existence of а special duty to the injured person, in contrast to a general duty owed to the public (Florence v Goldberg,
The several third-party complaints before us allege that the town, although having knowledge that blatant fire and safety code violations were involved, nevertheless approved changes in the building plans and thereafter issued a certificate of occupancy representing the premises to be safe and free of violations. Although the mere failure to uncover fire and safety violations during inspection clearly would not constitute a sufficient predicate for imposing liability on the town (e.g., Smullen v City of New York, supra, at p 70), much more in the way of a special relationship between the town and appellаnts is alleged here. If, as is alleged in the complaints, known, blatant, and dangerous violations existed on these premises, but the town affirmatively certified the premises as safe, upon which representation appellants justifiably relied in their dealings with the premises, then a proper basis for imposing liability on the town may well have been demonstrated (see Gordon v Holt,
Finally, we note in this connection that the town may not escape liability by asserting that the issuance of a certificate of occupancy involves a purely discretionary function. Although it has been held that the grant or denial of a building permit involves a discretionary governmental function, the exercise of which may not form the basis for liability in tort (e.g., Rothkamp v Young,
Although we hold that the town may be held proportionately liable to appellants if their allegations are proven, we conclude that appellants have stated no basis for implied indemnification by the town, and to that extent, the town’s motions to dismiss were properly granted by the Appellate Division. There is no view of the third-party complaints supporting a theory that appellants, if held liable to plaintiffs, are being cast in damages solely for the negligence of the town or on the basis of vicarious or imputed liability (see, e.g., D’Ambrosio v City of New York,
Accordingly, the order of the Appellate Division should be modified, with сosts to appellants, to the extent of denying the motions of third-party defendant Town of Greece to dismiss appellants’ third-party complaints as to the claims for proportionate liability set forth therein, and as so modified, the order should be affirmed, and the case should be remitted to Supreme Court, Monroe County, for the fixation of the time within which answers of the town to the third-party complaints may be served and for further proceedings on the pleаdings.
Notes
. The town made motions in 11 of the actions against it. As to the remaining 10 actions, brought by defendants/third-party plaintiffs Comparato and Corona Court, Inc., against the town, counsel stipulated to be bound by the determination on the motions made in the first 11 actions.
. Although the builders of the motel are also named as defendants and have served third-party complaints against the town, no issue concerning them is presented on this appeal. The construction company itself has taken no appeal. Appellant Spezio, although a principal of the original corporation which built the motel, alleges that he had nothing to do with the design or construction phase of the development. Appellant Comparato, although majority stockholder of that corporation, has framed the issue on his appeal solely in terms of the town’s duty to him as an owner of the premises.
. Although based upon principles of indemnification, two early cases also demonstrate the propriety of examining separately the duty owed a plaintiff by a wrongdoer and an independent duty owed by a third party to respond in indemnification. In Schubert v Schubert Wagon Co. (
. Interesting in this connection is the languagе of subdivision 5 of section 302 of the Multiple Residence Law, which provides that every person who in good faith purchases a multiple dwelling on which a certificate of occupancy has been issued is entitled to rely on the certificate: “Whenever any person has so relied upon such a certificate, no claim that such dwelling had not, prior to the issuance of such certificate, conformed in all respects to the provisions of this chapter shall be made against such person * * * with respect to such multiple dwelling”. Thus, the statute pursuant to which a certificate of occupancy is issued itself appears to contemplate a special relationship between the municipality and a person relying on its certificate.
. The dissenting writing overlooks the critical distinction we draw between the general duty owed by a municipality to members of the public at large (violation of which, we agree, under present law, creates no liability on the part of the municipality) and a special duty owed by the municipality to a particular category of persons, here the owners and lessee/operator of the premises, for violation of which we hold that the municipality may be liable. Additionally, the cases on which the dissenting opinion relies involve claims only of the failure to perform a duty on the part of the municipality, whereas in the present case it is alleged that the municipality not only negligently failed properly to inspect the premises but also that it affirmatively issued a false certificate of occupancy, actively misrepresenting that there were no violations of applicable fire and safety laws.
. (See Multiple Residence Law, § 302, and n 4, supra.)
Dissenting Opinion
(dissenting in part). While I agree with so much of the majority’s opinion as holds that despite the absence of any actionable duty owed by a third party directly to the injured plaintiff, the third party may be held liable for a proportionate share of the damages on the basis of a breach of duty to those who must respond directly in damages to the plaintiff, I do not believe that the third party in this case, the Town of Greece, can be charged with violating a special duty to the motel owners and operator in order to be held liable for a proportionate share of the damages.
As the majority recognizеs, a municipality will be held liable for violating a duty commanded by a statute only where the statute was enacted for the benefit of a particular person or class of persons. (Motyka v City of Amsterdam,
In Motyka v City of Amsterdam (
Similarly, in Sanchez v Village of Liberty (
The majority attempts to distinguish the afore-mentioned cases on the ground that the Town of Greece “not only negligently failed properly to inspect the premises but also that it affirmatively issued a false certificate of occupancy, actively misrepresenting that there were no violations of applicable fire and safety laws.” (At p 263, n 5.) What the majority overlooks is that in Sanchez v Village of Liberty (supra), it was alleged that the plaintiffs, recipients of public assistance, were moved into a building which the defendants knew was a firetrap. It is difficult to imagine a more affirmative act of misrepresentation to a particular class of individuals that premises were safe for their occupancy. Moreover, in O’Connor v City of New York (supra), the city inspector observed the obviously faulty gas pipe installation work, but nevertheless issued a “blue card” which stated: “This is to certify that the Gas Pipes of the premises known as No. 7-11 Ann Street in the Borough of Manhattan conform to the rules and regulations of the Department in effect at this date.” Thus, it is beyond dispute that the City of New York, as did the Town of Greece, “actively misrepresented] that there were no vio
Since I believe this сase is indistinguishable from our past decisions, stare decisis commands dismissal of plaintiff’s complaint. Indeed, at an earlier stage of the instant litigation, it was held that “[p]laintiff has alleged no more than a violation by the town of a general duty owed to the public at large”. (Garrett v Town of Greece,
Accordingly, I would affirm the order of the Appellate Division and, as we did in the companion case, Garrett v Town of Greece (
Judges Jones, Fuchsbеrg and Meyer concur with Judge Wachtler; Chief Judge Cooke dissents in part and votes to affirm for the reasons stated in the opinion by Justice Richard D. Simons at the Appellate Division (
Order modified, with costs to appellants, and the case remitted to Supreme Court, Monroe County, for further