Miles v. R & M Appliance Sales, Inc.

• Decision Date: 14 May 1970
• Citation: 259 N.E.2d 913,26 N.Y.2d 451,311 N.Y.S.2d 491
• Parties: , 259 N.E.2d 913 Janie MILES, Appellant, v. R & M APPLIANCE SALES, INC., Respondent and Third-Party Plaintiff, RONDEL TELEVISION SERVICE COMPANY, Third-Party Defendant.
• Court: New York Court of Appeals Court of Appeals

Page 491

311 N.Y.S.2d 491

26 N.Y.2d 451, 259 N.E.2d 913

Janie MILES, Appellant, v. R & M APPLIANCE SALES, INC., Respondent and Third-Party Plaintiff, RONDEL TELEVISION SERVICE COMPANY Third-Party Defendant.

Court of Appeals of New York.

May 14, 1970.

Louis J. Martino, Mt. Vernon, for appellant.

Arthur J. Vout'e, Jr. and James I. Lysaght, New York City, for respondent.

BURKE, Judge.

Plaintiff, having first ascertained that the seller would make any necessary repairs, purchased an air conditioner from defendant (referred to hereafter as R & M). The seller delivered and installed the unit which was found to be defective. Plaintiff spoke to the store's manager and was assured that the matter would receive their prompt attention. R &amp M, which did not maintain a service department for air-conditioning units, called the manufacturer, Olympic, and was directed to contact the third-party defendant (referred to hereafter as Rondel). An employee of Rondel went to plaintiff's home and, after stating that he had been sent by R & M removed the unit. In the course of the next three months, plaintiff, on repeated occasions, visited the R & M store to ascertain the status of the repairs. Each time she was assured by the manager that R & M would attend to the matter.

On September 9, 1959, plaintiff entered her first-floor apartment in a two-family dwelling through the front door. Access to the apartment was also available through a side door. Subsequently, plaintiff sought egress through the side entrance. She stepped out and to the right, as the house's construction required. Despite seeing a large box in front of her, she was prevented by her momentum from stopping. Plaintiff fell over the obstruction--the air conditioner sold by R & M--and sustained the injuries for which she seeks recovery. The unit had been delivered by Rondel.

Plaintiff commenced an action against R & M, and the latter commenced a third-party action against Rondel. A dismissal of the complaint after a trial was reversed by the Appellate Division, and a new trial was ordered (27 A.D.2d 857, 280 N.Y.S.2d 909). Judgment for plaintiff, entered after a second trial on the jury verdict, was reversed by the Appellate Division (30 A.D.2d 979, 294 N.Y.S.2d 1000) and the complaint was dismissed.

Two issues are presented: (1) Did plaintiff prove a prima facie case, and, if so, (2) is R & M liable for the negligence of Rondel?

As to the first issue, we think that the evidence presented a jury question and was sufficient to sustain a finding that Rondel was negligent, and R & M was vicariously liable for the injuries suffered by the plaintiff.

By the terms of its written contract, R & M made no warranties, express or implied, other than those contained in the written agreement. That instrument imposed no obligation on R & M to repair the air-conditioning unit. Liability here, however, is not dependent upon any obligation to repair. R & M undertook to repair the unit, apparently as part of its customer relations policy, so that, regardless of its contractual obligation, it became bound to fulfill the assumed responsibility with reasonable care (2 Harper & James, Torts, § 18.6, pp. 1044--1045; cf. Dunham v. Village of Canisteo, 303 N.Y. 498, 502, 104 N.E.2d 872, 874). Encompassed within the assumed duty was the repair and, collaterally, the careful redelivery and reinstallation of the machine. The delegation of the performance of the assumed responsibility to Rondel, an independent contractor, does not absolve R & M from liability for Rondel's negligence.

In the case of alleged independent contractors, the...