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May 31, 2016

"Trip-And-Fall" Complaint Dismissed Against Third-Party Installer of Holiday Display at Mall

In New York, a passerby who is injured as a result of a "trip-and-fall" generally cannot sue a contractor who entered into a contract with the owner of the premises (and has no contractual relationship with the injured person), unless one of the following exceptions applies: (1) the contractor negligently performed its duties and "launche[d] a force or instrument of harm"; (2) the injured party detrimentally relied on the continued performance of the contractor's duties; or (3) the contractor had entirely displaced the owner's duty to maintain the premises safely. See Espinal v. Melville Snow Contrs., 98 N.Y.2d 136 (2002). Recently, the Appellate Division, Second Department, reiterated the above principle and dismissed a claim against a contractor in this context. See Parrinello v. Walt Whitman Mall, LLC, 2016 N.Y. Slip Op. 03481, ___ A.D.3d __ (2d Dep't May 4, 2016).

In Parrinello, the plaintiff sued a shopping mall and a holiday display company, American Christmas, for personal injuries she allegedly sustained when she tripped and fell over an extension cord used for a holiday display at the mall. At the time, American Christmas had entered into contracts with the mall's owner to install, refurbish, and remove the display. American Christmas employees had taped extension cords for the display to the floor of the mall, and stanchions connected by straps were placed over the cords to barricade the area from pedestrian traffic and to prevent people from passing over the cords. The contracts expressly provided that, after installation was complete, American Christmas was not responsible for maintaining the area or the displays.

American Christmas moved for summary judgment dismissing the complaint on the basis that it owed no duty of care to the plaintiff and that none of the three Espinal exceptions applied. The Supreme Court, Suffolk County denied the motion, and American Christmas appealed.

The Second Department reversed and granted summary judgment dismissing the complaint as against American Christmas. The Court held that American Christmas demonstrated its entitlement to judgment as a matter of law by establishing that it owed no contractual or common law duty to the plaintiff and, through the testimony of its sales director, that it did not install the holiday display in a negligent manner, and thus did not launch "a force or instrument of harm." In opposition, although the plaintiff presented evidence that the stanchions were not covering the extension cord on the day of her fall, she failed to rebut American Christmas' proof that it properly placed the stanchions over the cord two weeks prior to her fall and that it had no control over the premises or presence at the mall thereafter. Thus, the plaintiff failed to raise a triable issue of fact as to any of the three Espinal exceptions.

The Court's decision in Parrinello is instructive for parties litigating premises liability claims in the context of an Espinal scenario, i.e., a claim by an injured passerby against a third-party contractor. These types of claims arise frequently, and this decision provides guidance for determining whether one or more of the Espinal exceptions may apply in a particular case, so as to give rise to liability against a contractor.

If you require further information regarding the content of this Legal Alert, please contact either of the Co-Chairs of the Torts & Products Liability Defense Practice Area, Thomas J. Drury, at (716) 858-3845 or, or Matthew J. Larkin, at (315) 425-2805 or, or the author of this alert Sanjeev Devabhakthuni at (518) 295-4489 or


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