Palka v. Servicemaster Management Services Corp.

Decision Date05 May 1994
Citation634 N.E.2d 189,611 N.Y.S.2d 817,83 N.Y.2d 579
Parties, 634 N.E.2d 189 Linda C. PALKA, Appellant, v. SERVICEMASTER MANAGEMENT SERVICES CORPORATION, Respondent.
CourtNew York Court of Appeals Court of Appeals

De Lorenzo, Gordon, Pasquariello, Weiskopf & Harding, P.C., Schenectady (Susan E. Beaudoin and Thomas E. De Lorenzo of counsel), for appellant.

Hinshaw & Culbertson (Carlton D. Fisher and Stephen R. Swofford of counsel, of the Illinois Bar, admitted pro hac vice), and Donahue, Sabo, Varley & Armstrong, P.C., Albany (Fred J. Hutchison of counsel), for respondent.



Plaintiff-appellant Palka, a registered nurse employed by Ellis Hospital in the City of Schenectady, was injured in 1987 while performing her nursing duties. An oscillating wall-mounted fan fell on her from its wooden mount as she attended to a patient. The nurse's negligence action against defendant Servicemaster Management Services Corporation derives from that company's contractual obligations to the hospital, for a biweekly payment of $91,207, to develop and implement a maintenance program for the hospital premises, among other specified functions. The question framed within the boundaries of this record is whether Servicemaster should be answerable to Palka for tortiously inflicted personal injuries arising from defendant's negligent or failed performance of the contractual obligations to Ellis Hospital in the first instance. We conclude it should be. I.

Two years before the accident, Servicemaster contracted with Ellis Hospital to provide management services, which included, in part, the duty to "train, manage and direct" all support service employees of the hospital, expressly including the hospital's maintenance department. Defendant did not install the preexisting wall-mounted fans. From 1982 through 1985, the hospital supervised its own maintenance department and employees, and included a safety inspection of the fans and mountings in all rooms in its operations. Room fan inspections ceased when Servicemaster assumed maintenance responsibilities for the hospital premises in 1985.

At the conclusion of the liability portion of plaintiff's case, tried before a jury which answered questions on a special verdict, defendant moved for a directed verdict. It argued that it owed no duty to plaintiff. Supreme Court denied the motion and let the jury's verdict stand in plaintiff's favor. On defendant's appeal, the Appellate Division reversed and by a vote of 3 to 2 dismissed the complaint. Relying principally on Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 557 N.Y.S.2d 286, 556 N.E.2d 1093, that Court's majority held that "defendant neither owed a cognizable duty to plaintiff nor assumed a duty to act in this instance" (195 A.D.2d 638, 639, 599 N.Y.S.2d 734). The dissenting Justices would have upheld the jury verdict. Under the circumstances and evidence adduced in this case, we conclude that Servicemaster assumed a duty to act. Negligent failure to perform it may thus render Servicemaster liable to plaintiff. Accordingly, the order of the Appellate Division, appealed as of right by plaintiff on the two-Justice dissent, should be reversed and the judgment based on the jury verdict on liability in plaintiff's favor should be reinstated.


In particular, Servicemaster denies that its contractual responsibilities to Ellis Hospital encompassed inspection of the wall-mounted fans. Their contract, entitled "General Services and Plant Operations and Maintenance," delineated defendant's duties into three separate categories: Housekeeping Services, Quality Control, and General Services. Servicemaster agreed to furnish all coordinating management, training and technical personnel needed to accomplish the support services; train, manage, supervise and direct all support service employees in the performance of their respective duties; perform all administrative duties relating to support service employees; supply materials for housekeeping; pay all direct operating costs and expenses required in the performance of the support services; and provide and maintain the daily work and project schedules, standard operating procedures and training manuals. Ellis Hospital paid Servicemaster $91,207 biweekly for taking charge of these functions. In addition, Servicemaster agreed to indemnify and hold Ellis Hospital harmless as to any liability which may be imposed against the hospital by reason of any acts or omissions of Servicemaster.

The contract makes no specific mention of fan maintenance and contains no provision requiring a general inspection program. Paul Brown, the Director of Plant Operations for Servicemaster, testified at trial, however, that part of Servicemaster's general duties was "to create a clean and safe environment" for employees and patients, to reduce safety hazards and to engage in "preventative maintenance and casualty control or casualty prevention," defined as "primarily one of inspection and checking to see if something needs repairing before it falls" (emphasis added). Brown added that it was Servicemaster's responsibility to provide leadership necessary for the effective coordination of plant maintenance and to run a program of inspection and preventative maintenance. He further testified that it was Servicemaster's responsibility to instruct Ellis Hospital's maintenance department employees on how and when to perform maintenance on all electrical and mechanical equipment. In furtherance of its contractual duty to provide "preventative maintenance," Servicemaster directed the hospital's floor mechanics to speak with each head nurse with respect to necessary repairs.

This evidence, coupled with the specifications of the contract itself, belie Servicemaster's denial of any contractual responsibility to supervise a preventative maintenance program, which particularly included the inspection and repair of the wall-mounted hospital fans. Plainly, its extensive privatization arrangement displaced entirely the hospital's prior in-house maintenance program and substituted an exclusive responsibility in Servicemaster to perform all of Ellis Hospital's pertinent nonmedical, preventative, safety inspection and repair service functions.


Servicemaster's responsibility to Ellis Hospital to inspect and repair, however, does not automatically make it liable in tort for this noncontracting plaintiff's injuries. That issue requires an examination of whether Servicemaster's duties extend beyond its relationship with Ellis Hospital, and if so, how far out and on what policy and analytical bases.

We start this part of the analysis with the proposition that a duty of reasonable care owed by a tortfeasor to an injured party is elemental to any recovery in negligence (see, Eiseman v. State of New York, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128; Turcotte v. Fell, 68 N.Y.2d 432, 437, 510 N.Y.S.2d 49, 502 N.E.2d 964; Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644, 424 N.E.2d 531; Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019). Unlike foreseeability and causation, which are issues generally and more suitably entrusted to fact finder adjudication, the definition of the existence and scope of an alleged tortfeasor's duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration (see, Eaves Brooks Costume Co. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 226, 557 N.Y.S.2d 286, 556 N.E.2d 1093, supra; Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 229, 513 N.Y.S.2d 356, 505 N.E.2d 922; De Angelis v. Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406). Common-law experience teaches that duty is not something derived or discerned from an algebraic formula. Rather, it coalesces from vectored forces including logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility. These sources contribute to pinpointing and apportioning of societal risks and to an allocation of burdens of loss and reparation on a fair, prudent basis (see, De Angelis v. Lutheran Med. Ctr., supra; Micallef v. Miehle Co., 39 N.Y.2d 376, 385, 384 N.Y.S.2d 115, 348 N.E.2d 571; Codling v. Paglia, 32 N.Y.2d 330, 340, 345 N.Y.S.2d 461, 298 N.E.2d 622).

Chief Judge Cardozo sagely instructed all who have continued to search for this shimmering line of duty in endless fact patterns and juridical relationships with the now familiar axiom that "[t]he risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation " (Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99 [emphasis added]. It has been said, with additional words, that " 'whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he [or she] did not use ordinary care and skill in his [or her] own conduct with regard to the circumstances he [or she] would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger' " (Havas v. Victory Paper Stock Co., 49 N.Y.2d 381, 386, 426 N.Y.S.2d 233, 402 N.E.2d 1136, quoting Heaven v. Prnder, 11 QBD 503, 509, Brett, MR [1883]. Thus, we have come to recognize that while the existence of a duty involves scrutiny of the wrongfulness of a defendant's action or inaction, it correspondingly necessitates an examination of an injured person's reasonable expectation of the care owed and the basis for the expectation and the legal imposition of a duty (see, Turcotte v. Fell, 68 N.Y.2d 432, 437, 510 N.Y.S.2d 49, 502 N.E.2d 964, supra ).

All persons entering Ellis Hospital surely hold a reasonable expectation that someone is in charge of and responsible for basic safety inspections and maintenance of equipment and the premises. Defendant...

To continue reading

Request your trial
388 cases
  • Kloner v. United States
    • United States
    • U.S. District Court — Eastern District of New York
    • July 21, 2016
    ...alleged tortfeasor's duty is usually a legal, policy-laden declaration reserved for Judges to make," Palka v. Servicemaster , 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189 (1994), the assumption-of-duty inquiry is necessarily fact-specific and typically hinges on a plaintiff's reason......
  • Doona v. Onesource Holdings Inc
    • United States
    • U.S. District Court — Eastern District of New York
    • January 7, 2010
    ...a limited undertaking. See Palka, 611 N.Y.S.2d 817, 634 N.E.2d at 193-95. In general, this requires more than just janitorial services. See id. Here, the evidence fails to establish that any of the three exceptions present so as to impose tort liability on the contractor, OneSource, for dam......
  • Cruz v. TD Bank, N.A.
    • United States
    • U.S. District Court — Southern District of New York
    • March 2, 2012
    ...148, 156 (2d Cir.1997). The scope of a duty owed to a plaintiff is a question of law. See Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189 (N.Y.1994). New York applies the economic loss doctrine to negligence claims. This doctrine prevents a pl......
  • Stagl v. Delta Airlines, Inc.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 17, 1995 attempt to distribute "burdens of loss and reparation on a fair, prudent basis," Palka v. Servicemaster Management Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 820, 634 N.E.2d 189, 192 (1994); see also De Angelis v. Lutheran Medical Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, ......
  • Request a trial to view additional results
2 books & journal articles
  • § 19.03 Escalations
    • United States
    • Full Court Press Negotiating and Drafting Commercial Leases CHAPTER 19 Rent
    • Invalid date
    ...Akins v. Glens Falls City School District, 53 N.Y.2d 325, 441 N.Y.S.2d 644 (1981).[184] Palka v. Servicemaster Management Services Corp., 83 N.Y.2d 579, 611 N.Y.S.2d 817 (1994); Columbia University v. Gwathmey Siegel & Associates Architects, 192 A.D.2d 151, 601 N.Y.S.2d 116 (1993).[185] Ros......
  • Recent New York appellate decisions will impact municipal tort litigation.
    • United States
    • Fordham Urban Law Journal Vol. 30 No. 3, March 2003
    • March 1, 2003
    ...Moch Co. v. Rensselaer Water Co., 158 N.E. 896, 898-99 (N.Y. 1928)). (273.) 158 N.E. at 896. (274.) 556 N.E.2d 1093 (N.Y. 1990). (275.) 634 N.E.2d 189 (N.Y. (276.) Espinal, 773 N.E.2d at 487. (277.) Id. (quoting Moch, 158 N.E. at 896). (278.) Id. at 487-88. (279.) Id. at 488. (280.) Id. (28......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT