Church v. Callanan Indus.

CourtNew York Court of Appeals
Citation752 N.Y.S.2d 254,99 N.Y.2d 104,782 N.E.2d 50
Decision Date19 November 2002
PartiesNED S. CHURCH, an Infant, by WENDY SMITH, His Guardian ad Litem, et al., Appellants, v. CALLANAN INDUSTRIES, INC., et al., Defendants, and SAN JUAN CONSTRUCTION AND SALES COMPANY, Respondent. (And a Third-Party Action.)

99 N.Y.2d 104
782 N.E.2d 50
752 N.Y.S.2d 254

NED S. CHURCH, an Infant, by WENDY SMITH, His Guardian ad Litem, et al., Appellants,
v.
CALLANAN INDUSTRIES, INC., et al., Defendants, and SAN JUAN CONSTRUCTION AND SALES COMPANY, Respondent. (And a Third-Party Action.)

Court of Appeals of the State of New York.

Argued October 8, 2002.

Decided November 19, 2002.


99 N.Y.2d 105
99 N.Y.2d 106
Michael J. Hutter, Albany, and Thorn Gershon Tymann and Bonanni, LLP, for appellants

99 N.Y.2d 107
D'Agostino, Krackeler, Baynes & Maguire, P.C., Menands (Arete K. Sprio of counsel), for respondent

99 N.Y.2d 108
William D. Fireman, P.C., New York City (William D. Fireman of counsel), for New York State Trial Lawyers Association, amicus curiae

Nolan & Heller, LLP, Albany (Terence J. Burke and Frederick W. Clark III of counsel), for Empire State Subcontractors Association, amicus curiae.

Couch White, LLP, Albany (James J. Barriere and Stephen M. Buhr of counsel), for Associated General Contractors of America, New York State Chapter, Inc. and another, amici curiae.

Chief Judge KAYE and Judges SMITH, CIPARICK, WESLEY, ROSENBLATT and GRAFFEO concur.

99 N.Y.2d 109
OPINION OF THE COURT

LEVINE, J.

Plaintiff Ned Church, age nine, received catastrophic spinal injuries December 26, 1992, when the driver of a Volkswagen Jetta in which he was a rear seat occupant fell asleep at the wheel. The vehicle veered off the southbound traffic portion of the New York State Thruway near milepost marker 132.7, careened down a nontraversable embankment and crashed in a V-shaped ditch at the bottom. The Thruway site where the vehicle left the highway was within a 22-mile resurfacing and safety-improving project, which was completed in 1986 pursuant to an agreement between the Thruway Authority and Callanan Industries, Inc., as general contractor.

Pursuant to its contract with the Thruway Authority, Callanan agreed, by a date certain, to "construct and complete in the most substantial and workmanlike manner, the construction, improvement or reconstruction of the project" identified in the project plans and specifications. The project specifications called for the removal of some 275 feet of existing guiderail in the vicinity of milepost marker 132.7 and its replacement by a longer (312.5 feet) guiderail system. The contract documents also contemplated Callanan's use of subcontractors on the project.

In a related agreement, the Thruway Authority engaged the construction engineering firm of Clough, Harbour & Associates as project "Engineer" to inspect and supervise Callanan's compliance with the contract plans and specifications. Under the Thruway Authority's agreement with Callanan, the engineer's recommendation was required before final acceptance of the contractor's work.

Callanan entered into a subcontract with defendant San Juan Construction and Sales Company for the installation of the guiderail system in question. The subcontract incorporated the general contract by reference. It also stipulated that "[a]ll drawings, * * * certifications [and] approvals of the Subcontractor shall be submitted for approval of the Architect or Engineer," that is, "the person appointed by the Owner to supervise the work of the Contractor on behalf of the Owner." In addition, Callanan reserved the right to demand at any time that San Juan furnish evidence of its ability to fully perform the subcontract in the manner and within the time specified in the subcontract.

Suit was brought on behalf of the infant plaintiff against Callanan, San Juan and Clough Harbour. The gravamen of the

99 N.Y.2d 110
action was both the negligent failure to complete the full 312.5 feet of new guiderailing called for by the Callanan general contract and the San Juan subcontract, and Clough Harbour's negligent inspection and approval of the installation despite such noncompletion. Specifically, the complaint alleged that (1) San Juan installed only some 212 of the 312.5 feet of guiderailing called for by the contracts; (2) the missing portion of the guiderail installation included the place where the Jetta went out of control and left the highway; and (3) as a result of the negligent noncompletion of the guiderail installation, the infant plaintiff incurred devastating injuries when the Jetta crashed at the bottom of the embankment

After joinder of issue and discovery, Callanan and San Juan moved for summary judgment dismissing the complaint, based in part on the contention that, as purely contracting parties with respect to installation of the guiderailing, they owed no duty to plaintiffs. Plaintiffs' response was that both defendants undertook a duty to perform safety improvements and were liable for their "negligent performance of these improvements [which] directly caused Ned Church's injuries." Plaintiffs described the duty claimed here as follows: "It is well established law that where one undertakes work on a public highway which if not done carefully will create dangerous conditions to the general public, he is under a duty to use requisite care and that duty cannot be delegated." They submitted opinion evidence that, had the guiderailing been completed in accordance with the Callanan and San Juan contracts, the Jetta would have been prevented from plunging down the embankment and crashing at the bottom, thereby causing the infant plaintiff's serious injuries. Supreme Court denied the motion for summary judgment. On appeal from that denial, the Appellate Division reversed and granted summary judgment to San Juan (285 AD2d 16).1 After further proceedings not relevant to this appeal, a final judgment was entered at Supreme Court.

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218 practice notes
  • Landon v. Kroll Lab. Specialists, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • November 22, 2011
    ...from a contract must be enforced as contractual duties under a theory of contract law ( see [934 N.Y.S.2d 188] Church v. Callanan Indus., 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50; Stiver v. Good & Fair Carting & Moving, Inc., 32 A.D.3d 1209, 1210, 822 N.Y.S.2d 178, affd. 9 N.Y.3d......
  • Gottesman v. Graham Apartments, Inc., No. 65447/2011.
    • United States
    • New York Civil Court
    • April 5, 2015
    ...Laboratory Specialists, Inc., 22 N.Y.3d 1, 977 N.Y.S.2d 676, 999 N.E.2d 1121 (2013) ; Church ex rel. Smith v. Callanan Industries, Inc., 99 N.Y.2d 104, 752 N.Y.S.2d 254, 782 N.E.2d 50 (2002) ; Sheila C. v. Povich, 11 A.D.3d 120, 781 N.Y.S.2d 342 (1st Dept 2004). “Negligence arises from a br......
  • Benjamin v. City of N.Y., No. 106847/04.
    • United States
    • United States State Supreme Court (New York)
    • April 28, 2017
    ...unreasonable risk of harm to others or increases that risk while discharging its contractual obligation. Church v. Callanan Indus., Inc., 99 N.Y.2d 104, 782 N.E.2d 50, 752 N.Y.S.2d 254 (2002). New York cases have thus far identified three sets of circumstances, as exceptions to the general ......
  • Santos v. DEANCO Servs., Inc.
    • United States
    • New York Supreme Court Appellate Division
    • July 13, 2016
    ...condition (see Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 361, 850 N.Y.S.2d 359, 880 N.E.2d 845 ; Church v. Callanan Indus., 99 N.Y.2d 104, 112, 752 N.Y.S.2d 254, 782 N.E.2d 50 ; Espinal v. Melville Snow Contrs., 98 N.Y.2d at 142, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; Javid v. Sclafmore C......
  • Request a trial to view additional results
218 cases
  • Landon v. Kroll Lab. Specialists, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • November 22, 2011
    ...from a contract must be enforced as contractual duties under a theory of contract law ( see [934 N.Y.S.2d 188] Church v. Callanan Indus., 99 N.Y.2d 104, 111, 752 N.Y.S.2d 254, 782 N.E.2d 50; Stiver v. Good & Fair Carting & Moving, Inc., 32 A.D.3d 1209, 1210, 822 N.Y.S.2d 178, affd. 9 N.Y.3d......
  • Gottesman v. Graham Apartments, Inc., No. 65447/2011.
    • United States
    • New York Civil Court
    • April 5, 2015
    ...Laboratory Specialists, Inc., 22 N.Y.3d 1, 977 N.Y.S.2d 676, 999 N.E.2d 1121 (2013) ; Church ex rel. Smith v. Callanan Industries, Inc., 99 N.Y.2d 104, 752 N.Y.S.2d 254, 782 N.E.2d 50 (2002) ; Sheila C. v. Povich, 11 A.D.3d 120, 781 N.Y.S.2d 342 (1st Dept 2004). “Negligence arises from a br......
  • Benjamin v. City of N.Y., No. 106847/04.
    • United States
    • United States State Supreme Court (New York)
    • April 28, 2017
    ...unreasonable risk of harm to others or increases that risk while discharging its contractual obligation. Church v. Callanan Indus., Inc., 99 N.Y.2d 104, 782 N.E.2d 50, 752 N.Y.S.2d 254 (2002). New York cases have thus far identified three sets of circumstances, as exceptions to the general ......
  • Santos v. DEANCO Servs., Inc.
    • United States
    • New York Supreme Court Appellate Division
    • July 13, 2016
    ...condition (see Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 361, 850 N.Y.S.2d 359, 880 N.E.2d 845 ; Church v. Callanan Indus., 99 N.Y.2d 104, 112, 752 N.Y.S.2d 254, 782 N.E.2d 50 ; Espinal v. Melville Snow Contrs., 98 N.Y.2d at 142, 746 N.Y.S.2d 120, 773 N.E.2d 485 ; Javid v. Sclafmore C......
  • Request a trial to view additional results

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