Contractor to indemnify the agency for the agency's liabilities only if the liability resulted from activities that were among its contractual duties
Ramos v City of New York, 2010 NY Slip Op 07821, Decided on November 4, 2010, Appellate Division, First Department
Tristar provided security services at the premises pursuant to a contract between it and the City whereby Tristar personnel were to check ID’s of people who worked at the premises, scanning people who did not work there, checking bags for weapons, and patrolling the exterior of the building.
The contract between the City and Tristar required Tristar to provide unarmed and armed uniformed guard services at the City's premises and included a provision that Tristar was to indemnify the City for "claims arising out of or in any way related to this Contract . . . resulting or alleged as resulting from the negligence of the Contractor . . . in its performance of this Contract."
Guillermo Ramos was employed by Tristar as a security guard and was injured while working at premises owned by the City of New York. Ramos claimed that he was directed by an employee of the City, who supervised him at the premises, to turn off the heater/fan that was located in a closet on the main floor of the premises and allegedly received a severe electric shock in so doing. Ramos sued the City and the City commenced a third-party action against Tristar for contractual indemnification.
The Appellate Division dismissed the City’s action seeking indemnification from Tristar, noting that although Tristar had a duty to indemnify the City for Tristar's negligence in the performance of its duties, it was not obligated to indemnify the City for the City’s negligence.
Here, said the court, Ramos’ “injuries arose when he attempted to turn off the switch for the heater/fan which was an activity clearly outside of the scope of his duties as a security guard.”
Accordingly, Tristar was not obligated to indemnify the City as a matter of law as there was no proof that Ramos’ injuries arose from Tristar's breach of a duty of care owed to the City or from the work Tristar performed under its contract with the City.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07821.htm
NYPPL