Monday, November 2, 2009

Stuff Happens -- Subrogation Claim for Damages from Toilet Overflow Dismissed

American Guar. & Liab. Ins. Co. v. Federico's Salon, Inc.
(1st Dept., decided 10/15/2009)

As the bumper sticker says, stuff happens.  Plaintiff insurer brought this subrogation action for property damage resulting when a toilet on the unoccupied fourth floor of the commercial building in which its insured was a tenant became clogged and overflowed, flooding the insured's store and destroying its inventory.  At the time, the defendant leased the fifth floor of the building and was renovating its space.  Defendant successfully moved for summary judgment, and plaintiff appealed.

In AFFIRMING the award of summary judgment to defendant, the First Department held that the motion court had correctly rejected plaintiff's attempt to rely on the doctrine of res ipsa loquitur as inapplicable: 
Federico's made a prima facie showing of entitlement to judgment as a matter of law, as it demonstrated that no negligence on its part contributed to the leak. In opposition, plaintiff sought to rely on the doctrine of res ipsa loquitur, which the motion court correctly determined was inapplicable. Even assuming that the evidence was sufficient to support a finding that the toilet malfunction was of a type caused by negligence, plaintiff failed to present competent evidence that Federico's control of the fourth-floor bathroom was of "sufficient exclusivity to fairly rule out the chance that the defect. . . was caused by some agency other than [its] negligence" (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 228 [1986]; see Edmonds v City of Yonkers, 294 AD2d 330 [2002], lv denied 98 NY2d 612 [2002]). Indeed, the evidence shows that Federico's did not control any portion of the fourth floor, but was occasionally allowed access when the elevator or emergency stairwell door was left unlocked. When the doors were unlocked, the building porter, real estate agents, and the independent contractors retained by Federico's had access to the fourth-floor bathroom. Furthermore, to the extent the evidence permits an inference that the contractors hired by Federico's negligently disposed of debris in the toilet, it is well established that "an employer who hires an independent contractor is not liable for the independent contractor's negligent acts" (Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668 [1992]), and plaintiff provides no reason to depart from this general rule.
Using a toilet apparently does not fall within the ultra-hazardous activity exception to the general rule against holding one liable for the ordinary negligence of one's retained independent contractors. 

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