Santoro v. Poughkeepsie Crossings, LLCSantoro v. Poughkeepsie Crossings, LLC
APPEAL by the third-party defendant, in an action, inter alia, to recover damages for wrongful death and conscious pain and suffering, from an order of the Supreme Court (James V. Brands, J.), dated December 5, 2017, and entered in Dutchess County. The order, insofar as appealed from, denied the cross motion of the third-party defendant pursuant to
HINDS-RADIX, J.
OPINION & ORDER
At issue in this case is whether the defendant third-party plaintiff, Poughkeepsie Crossings, LLC (hereinafter the defendant), which owned and operated a residential health care facility, stated a cause of action against the third-party defendant, Sandra Santoro, for indemnification or contribution for injuries sustained by her mother, Inez J. Salvatore (hereinafter the decedent). We conclude that the defendant failed to state a cause of action against Santoro.
Santoro commenced the main action as executor of the decedent‘s estate, alleging that the defendant failed to provide adequate treatment to the decedent while she was a patient at its facility between March 17, 2015, and May 9, 2015, after her hospitalization for a heart attack. On March 30, 2015, while the decedent was a patient at the facility, she fell, fracturing several ribs and puncturing her lung. She was transferred back to the hospital and remained there for treatment until April 3, 2015, when she was returned to the defendant‘s facility. On May 9, 2015, the decedent was discharged to her home, where she had lived with Santoro since 1999. On May 12, 2015, the decedent fell at home while walking to a portable commode near her bed and fractured her hip. She was taken back to the hospital, where she underwent surgery. The decedent died on May 22, 2015, from septic shock, allegedly as the result of injuries she sustained in her fall at the defendant‘s facility on March 30, 2015.
In response to the main action commenced by Santoro, as executor of the decedent‘s estate, the defendant commenced a third-party action against Santoro, individually, seeking common-law indemnification and contribution based upon Santoro‘s alleged negligent supervision of the decedent in failing to follow its discharge instructions. The defendant alleged that Santoro failed to install a monitoring system in her house and to arrange for 24-hour care, seven days a week, contrary to the defendant‘s “clear and explicit instructions as to how to best care for the Decedent.” The defendant further alleged that the cause of the decedent‘s death was septic shock resulting from C. difficile colitis, and that her death was in no way related to the fall on March 30, 2015, in its facility.
Santoro cross-moved pursuant to
In an order dated December 5, 2017, the Supreme Court denied Santoro‘s cross motion to dismiss the third-party complaint, determining that there were issues of fact as to whether Santoro assumed a duty of care for the decedent upon the decedent‘s discharge from the defendant‘s facility in accordance with the discharge instructions and, if so, whether Santoro was negligent in her post-discharge care, and whether any such negligence caused or contributed to the death of the decedent. The question of whether Santoro‘s counsel should be disqualified was deferred for further consideration at a conference. Santoro appeals from so much of the order as denied her cross motion. The issue of her counsel‘s disqualification is not before this Court on the instant appeal.
On a motion to dismiss pursuant to
“[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the indemnitor” (Raquet v Braun, 90 NY2d 177, 183, quoting Mas v Two Bridges Assoc., 75 NY2d 680, 690) to reimburse the indemnitee for damages the indemnitee was compelled to pay for the wrongdoing of the indemnitor (see Oceanic Steam Nav. Co. [Ltd.] v Compania Transatlantica Espanola, 134 NY 461, 468; see Board of Mgrs. of Olive Park Condominium v Maspeth Props., LLC, 170 AD3d 645, 647). ” [T]he predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee” (Henderson v Waldbaums, 149 AD2d 461, 462, quoting Trustees of Columbia Univ. v Mitchell/Giurgola Assoc., 109 AD2d 449, 453; see Dreyfus v MPCC Corp., 124 AD3d 830; see Konsky v Escada Hair Salon, Inc., 113 AD3d 656, 658), that is, the “defendant‘s role in causing the plaintiff‘s injury is solely passive, and thus its liability is purely vicarious” (Balladares v Southgate Owners Corp., 40 AD3d 667, 671; see Board of Mgrs. of Olive Park Condominium v Maspeth Props., LLC, 170 AD3d 645). “In the classic indemnification case, the one seeking indemnity had committed no wrong, but by virtue of some relationship with the tort-feasor or obligation imposed by law, was nevertheless held liable to the injured party” (Glaser v Fortunoff of Westbury Corp., 71 NY2d 643, 646, quoting D‘Ambrosio v City of New York, 55 NY2d 454, 461). Thus, if
Here, the defendant has not alleged any scenario under which it could be held vicariously or statutorily liable for any negligence of Santoro. Any liability for damages imposed upon the defendant for the decedent‘s injuries would be imposed upon it by virtue of its own conduct. Therefore, that branch of Santoro‘s cross motion which was to dismiss the third-party cause of action sounding in common-law indemnification should have been granted (see Konsky v Escada Hair Salon, Inc., 113 AD3d 656, 658).
With respect to contribution, “[t]he critical requirement for apportionment under . . .
In this case, it is alleged that Santoro either caused, contributed to, or exacerbated the decedent‘s injuries, which could be the basis of a cause of action for contribution (see Ravo v Rogatnick, 70 NY2d 305, 310), based upon a duty owed either to the decedent or to the defendant (see Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d at 603). The issue here is whether such a duty existed.
The elements of a cause of action sounding in negligence are the existence of a duty that the defendant owed to the plaintiff, a breach of that duty, and that the breach of that duty was a proximate cause of the plaintiff‘s injuries (see Pulka v Edelman, 40 NY2d 781, 782; Wang v Barr & Barr, Inc., 127 AD3d 964, 964; Fox v Marshall, 88 AD3d 131, 136). Absent a duty of care to the injured party, there is no breach and no liability (see 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280, 289). Foreseeability does not define the duty (see Pulka v Edelman, 40 NY2d at 785), but merely defines the scope of the duty, once it is determined to exist (see Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232; Eiseman v State of New York, 70 NY2d 175, 187; see Kallem v Mandracchia, 111 AD3d 893).
The existence of a duty is generally a question of law for the courts, which may be resolved “by resort to common concepts of morality, logic and consideration of the social consequences of imposing the duty” (Tenuto v Lederle Labs., Div. of Am. Cyanamid Co., 90 NY2d 606, 612; see Cohen v Cabrini Med. Ctr., 94 NY2d 639, 642; Eiseman v State of New York, 70 NY2d at 187). A legal duty may be imposed either by law or by contract (see Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 30 NY3d 704, 711; Sommer v Federal Signal Corp., 79 NY2d 540, 551-552).
Thus, a party may assume a duty by entering into a contractual relationship (see Tooker v Tooker, 193 AD2d 563; Thibault v Franzese, 24 AD2d 903). “The very nature of a contractual obligation, and the public interest in seeing it performed with reasonable care, may give rise to a duty of reasonable care in performance of the contract obligations, and the breach of that independent duty will give rise to a tort claim” (New York Univ. v Continental Ins. Co., 87 NY2d 308, 316), which may be the basis of contribution ( see AG Captial Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582; Sommer v Federal Signal Corp., 79 NY2d 540). However, there is no allegation in this case that Santoro assumed a contractual duty to the decedent to take care of her or to provide treatment for her condition.
A party may be found liable for negligence based upon a breach of a duty of care owed to the public at large (see Grivas v Grivas, 113 AD2d 264). Such a duty arises where any third party who came in contact with the condition could sue for damages (see Maldonado v Newport Gardens, Inc., 91 AD3d 731, 732; cf. Siragusa v Conair Corp., 153 AD3d 1376). Here, the defendant alleges that Santoro assumed a duty to care for the decedent in accordance with the defendant‘s instructions “that would have ordinarily been owed to any other person.” However, “Ordinarily a person owes no duty to members of the public at large except to avoid injury to them by forces set in motion by such person or those acting as his [or her] agents” (Ford v Grand Union Co., 268 NY 243, 248). There is no allegation that Santoro or her agents set forces in motion which caused the decedent‘s injuries. Rather, the gravamen of the defendant‘s purported cause of action is that the decedent herself set those forces in motion, and that her injuries were caused by Santoro‘s failure to sufficiently supervise her.
The defendant argues that Santoro voluntarily assumed a duty of care by taking the decedent home. On this point, the parties cite Holodook v Spencer (36 NY2d 35), which ruled that “a child does not have a legally cognizable claim for damages against his [or her] parent for negligent supervision,” and “the absence of [a] primary cause of action defeat[ed] the counterclaim and third-party complaint” (id. at 40, 51). This rule also applies to an adult child with developmental disabilities in the care of his or her parent (see LaTorre v Genesee Mgt., 90 NY2d 576) and to a child in the care of an unemancipated older sibling (see Smith v Sapienza, 52 NY2d 82).
There are exceptions where liability for damages may be imposed. For example, there is a parental duty “to protect third parties from the foreseeable harm that results from the children‘s improvident use of dangerous instruments, to the extent that such use is subject to parental control” (Nolechek v Gesuale, 46 NY2d 332, 340). Further, where a family member is an employee of the facility where the injury occurred, there
There is no common-law duty of a child to care for a parent (see Ulrich v Ulrich, 136 NY 120). While a statutory duty may be imposed in derogation of common law, the defendant here does not rely on any such statute. However, a duty may also be imposed by contract (id. at 123-124). “The general rule is that, where the relationship between the parties is that of parent and child, the law presumes that where there is no proof of a contract under which the services were performed . . . they were rendered gratuitously” (Seaman v Jamison, 158 App Div 832, 835; see Canute v Minor, 232 App Div 325, 327, affd 258 NY 558).
However, a party also may assume a duty to a third party based upon gratuitous conduct. As stated in the Restatement (Second) of Torts, “One who undertakes, gratuitously or for consideration, to render services to another which he [or she] should recognize as necessary for the protection of a third person” can be subject to liability if a failure to exercise reasonable care “increases the risk of such harm,” or “the harm is suffered because of reliance” upon the undertaking (Restatement [Second] of Torts § 324A[a], [c]). “The question is whether [the] defendant‘s conduct placed [the] plaintiff in a more vulnerable position than [the] plaintiff would have been in had [the] defendant done nothing” (Malpeli v Yenna, 81 AD3d 607, 609, quoting Heard v City of New York, 82 NY2d 66, 72; see Gillern v Mahoney, 154 AD3d 438). When determining whether a cause of action exists, the question is whether the alleged wrongdoer has “launched a force or instrument of harm,” not whether the alleged wrongdoer “stopped where inaction is at most a refusal to become an instrument of good” (Malpeli v Yenna, 81 AD3d at 608-609 [internal quotation marks omitted]). In this case, the defendant alleged that Santoro failed to act in accordance with its instructions—which, in its view, would make her an instrument of good—not that she placed the decedent in a more vulnerable position than if she had done nothing. Therefore, the defendant failed to state a cause of action based upon gratuitous conduct.
Further, a duty may arise “where one has voluntarily assumed the care of another and so secluded the helpless person
In the absence of a contractual duty, the failure to act can constitute breach of a legal duty, such as where the legislature has created a duty (see Sheehy v Big Flats Community Day, 73 NY2d 629)1. However, “[w]hile the Legislature can create a duty by statute, in most cases duty is defined by the courts, as a matter of policy” (Lauer v City of New York, 95 NY2d 95, 100). As previously noted, courts resolve such questions “by resort to common concepts of morality, logic and consideration of the social consequences of imposing the duty” (Tenuto v Lederle Labs., Div. of Am. Cyanamid Co., 90 NY2d at 612; Eiseman v State of New York, 70 NY2d at 187).
The defendant would impose a new duty on those who live with infirm individuals “to use reasonable care” and “be liable for harm caused by the failure to use reasonable care by affirmative act or omission” (Jacobs v Newton, 1 Misc 3d 171, 178 [Civ Ct, Kings County]). A lower court has recognized such a duty, but would define it as a duty owed by “a child who assumes responsibility for the care of a parent who is limited by age or illness, or both” (id. at 178). The imposition of such an obligation carries with it public policy considerations of possible negative consequences, since such a general obligation could discourage persons from residing with the infirm, discourage children and infirm parents from living together, and discourage the infirm from attempting to resume independent living (see generally McCabe v Dutchess County, 72 AD3d 145; Anthony v United States, 616 F Supp 156 [SD Iowa]). The circumstances alleged here “provide no justification for creating” such a duty (Adams v Genie Indus., Inc., 14 NY3d 535, 545).
Accordingly, Santoro‘s cross motion to dismiss the third-party complaint should have been granted.
MASTRO, J.P., MALTESE and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court