Friday, July 8, 2016

Contracts and tort liability in favor of a third-party.

Practice point:  A contractual obligation, standing alone, will not give rise to tort liability in favor of a third party, with three exceptions:  (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties; and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely.

Student note:  As part of its prima facie showing, a contracting defendant is only required to negate the applicability of the three exceptions that were expressly pleaded by the plaintiff or expressly set forth in the plaintiff's bill of particulars.

Case:  Barone v. Nickerson, NY Slip Op 05107 (2d Dep't June 29, 2016)

Here is the decision.

Monday's issue:  An LLC's operating agreement and the LLC statute.