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

SUBROGATION – RES IPSA LOQUITUR – LIABILITY FOR NEGLIGENCE OF INDEPENDENT CONTRACTOR
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. 

Court Ices Subrogation Claim Against Sub-Zero Ice Maker Maker

SUBROGATION – RES IPSA LOQUITUR – CONTRACTOR'S NEGLIGENCE
Amer. International Ins. Co. v. Sub-Zero Freezer Co.
(Sup. Ct., New York Co., decided 6/9/2008)

An ice maker manufactured by Sub-Zero Freezer Company leaked and caused $144,224.83 in damages to a coop apartment one floor below. American International paid those damages and brought this subrogation action against the ice maker's manufacturers, as well as the general contractor and plumbing company responsible for installing the ice maker.

New York County Supreme Court Justice Judith Gische granted the manufacturers' motion for summary judgment but denied the motions of the GC and plumber.

Justice Gische rejected American International's argument that the doctrine of res ipsa loquitur against the manufacturers because "[e]ven assuming that plaintiff could prove that the event that happened (the leak) does not occur in the absence of someone’s negligence, and the leak was not due to any voluntary action or contribution by the plaintiff, the third element of a prima facie case against the manufacturer is missing, to wit: that the instrumentality was within the exclusive control of [the manufacturer]." The court held that since the manufacturer defendants had met their burden on their summary judgment motion, through EBT testimony and affidavits, and the parties who opposed that motion did not put forth any factual disputes that would require a trial, the claims and cross claims against the manufacturer defendants had to be dismissed.

In denying summary judgment to the general contractor and plumber, Justice Gische held:

The general contractor [Mark] and plumber have failed to eliminate any issues of fact whether either or both of them were negligent. There is factual dispute whether the general contractor supervised and directed the work that its subcontractor (the plumber) did at the Belfer apartment. Mr. Mark testified he was regularly present at the Belfer apartment to supervise the work being done and that he sometimes inspected the work of the subcontractors. (citation omitted). The general contractor does not recall whether it instructed its workers to uncrate the ice maker, but apparently the machine was out of the box and in the kitchen where it would be installed by the plumber. This creates an issue of fact for the jury to decide about whether the general contractor handled the ice maker. There is also an issue of fact whether the machine was mishandled or dropped any point after it was delivered to the Belfer apartment, and if so, who did it.

The plumber is not entitled to summary judgment either because of the factual dispute about whether the ice maker was tested after his men connected to the water line. A failure to test the ice maker could constitute negligence on the part of the plumber.