Was Managing Agent Liable For Launching and Instrument of Harm That Caused Accident?
Kylie Long tripped and fell on a chair in her cubicle, sustaining injuries, while getting up to activate the motion sensors that controlled the lighting that had gone off in her employer’s office building. Litigation ensued against Cushman & Wakefield, Inc., the managing agent for the building. C&W moved for summary judgment dismissing Long’s complaint. The motion was denied. C&W appealed.
Supreme Court determined that issues of fact existed as to whether C&W, which had contracted with the employer to provide property management services, owed a duty of care to Long. There were issues of fact as to whether Long detrimentally relied on C&W to perform its obligations under the contract to keep the premises safe. C&W’s contention that Long could not claim detrimental reliance absent her actual knowledge of the property management agreement between C&W and her employer was improperly raised for the first time on appeal and, in any event, was unavailing in light of Long’s testimony, which raised an issue of fact as to her knowledge of the agreement.
Supreme Court properly considered whether the total displacement exception applied. Long’s pleadings sufficiently apprised C&W that she was invoking the total displacement exception. And, in any event, C&W raised the exception on its motion for summary judgment, precluding any claim of surprise or prejudice.
While Long did not plead detrimental reliance, C&W did not argue that it was prejudiced by her late invocation of that exception in her opposition to the summary judgment motion. Supreme Court implicitly determined that no issue of fact existed as to the first exception (that C&W launched a force or instrument of harm) and Long did not cross-appeal from the court’s order. In any event, evidence of C&W’s alleged failure to fix the motion sensors was insufficient to raise an issue of fact as to whether the firm launched the instrument of harm that caused her accident. A defendant who neglects to make the accident site ‘safer—as opposed to less safe—than it was before’ the defendant came upon the site is not liable pursuant to the exception. The order of Supreme Court that denied C&W’s motion for summary judgment dismissing Long’s complaint was affirmed.