also allowed other defendant alarm entities to seek contribution because of the nature of the injury to the property owner -- a fire that had spread out of control causing extensive damage to the building. Id. at 557. This injury obviously qualified as an injury to property, separate and above mere benefit-of-the-bargain damages available in a contract action. Another justification for allowing the contribution claim to proceed was that the injury was also caused by a fire -- an "abrupt, cataclysmic occurrence," more familiar to tort law than contract. Id. at 552.
Under the cursory allegations of CSC's Third-Party Complaint, as expounded upon in its Memorandum of Law, it is obvious that CSC is merely employing language familiar to torts in an attempt to characterize the alleged breach of duty by Newman to CM as tortious rather than contractual. In order to prove negligence and withstand a motion of summary judgment, CSC would have to show that Newman owed CM a cognizable duty of care, that he breached that duty and that CM's damages were the proximate result of that breach. See Morse/Diesel, Inc. v. Trinity Industries, Inc. ("Morse/Diesel I"), 655 F. Supp. 346, 356 (S.D.N.Y. 1987), rev'd on other grounds, Morse/Diesel III, supra. Again, assuming for the purposes of this motion that Newman did in fact breach a duty to CM and that this breach was the proximate cause of CM's damages, a review of CSC's allegations and supporting evidence still shows that CSC cannot overcome the two hurdles mentioned earlier. First, the duty in this instance is not cognizable as a duty imposed in tort; it arises solely out of the contract. Second, CSC fails to assert or substantiate that CM suffered any damages beyond mere economic injury due to Newman's breach.
With regard to the relationship between Newman and CM, CSC alleges that it involved basically three overlapping series of events. The first part of the relationship involved Newman's design of the computer control board and the software for the Intel 8049 chip and the delivery of the prototype hoist. The second surrounded the hunt for a viable alternative chip after it was discovered that Intel would not supply CM. The third involved Newman's attempts to rectify the problems that arose in either the control board as a whole (CSC's interpretation of the Complaint) or the UMC chip itself (Newman's interpretation).
With regard to this first phase of the relationship, Newman did indeed design the computer control board and its various components and accompaniments, but this was a contractual duty. Other than its brief allegation of negligence, malpractice and the like, CSC's Memorandum of Law and the Brady Affidavit offer no basis for, and often contradict, such an allegation. CSC also asserts that CM relied upon Newman's expertise in selecting the original microprocessor, in an apparent attempt to construct some type of malpractice claim, but this too must fail as a matter of law. Not only does CSC not dispute the existence of the CM-Newman contractual relationship, references to such relationship are found throughout its third-party papers. See Complaint PP 7, 40 and Third-Party Complaint, Exhibit C; Answer P7 and Third-Party Complaint, Exhibit D; CSC's Memorandum of Law at 2, 4; Brady Affidavit at Exhibit A, p.39, and Exhibit C, pp. 91-93. There is no basis in law for extending the doctrine of professional malpractice to cover independent computer consultants. To lift the theory of malpractice from its narrow origin of personal, professional services to a lay patient or client and apply it to the law of commercial contracts would obfuscate the necessary boundaries of these two areas of law. Triangle Underwriters, Inc. v. Honeywell, Inc., 604 F.2d 737, 745 (2d Cir. 1979) (rejecting application of malpractice statute of limitations to a commercial relationship). Thus, Taft v. Shaffer Trucking, Inc., 52 A.D.2d 255, 383 N.Y.S.2d 744, 747 (4th Dep't 1976), and Corva v. United States Auto. Ass'n, 108 A.D.2d 631, 485 N.Y.S.2d 264, 265 (1st Dep't 1985), -- which were relied on by CSC in support of its position -- are both easily distinguished in that they dealt with the potential liability of a plaintiff's attorney to the defendant tortfeasor under the theory of contribution. No additional duty above and beyond his contract may be imposed upon Newman under the facts of this case. Cf., AT&T v. New York City Human Resources Admin., 833 F. Supp. 962, 984 (S.D.N.Y. 1993).
CSC alleges that CM's reliance on Newman extended to the latter's advice on the selection of alternate manufacturers -- the second phase of the CM-Newman relationship. However, such advice is irrelevant, not only because of the nature of the CM-Newman relationship, but also because there is no allegation that Newman recommended either CSC or UMC to CM. It appears that Newman had not had any contact with CSC until after CM had selected it as its supplier. Even if Newman had, this Court is still left with merely a contractual relationship. Even if he breached some type of duty to CM during his June 1984 trip to Asia, by not discovering that UMC was not an Intel licensee or that the chips had an intolerance to electrical "noise," this was still undertaken pursuant to the contractual relationship with CM, unsupported arguments to the contrary notwithstanding. Thus, with regard to this phase of the relationship, CSC also fails to make any allegation or to present material facts alluding to a breach of duty above and beyond the contractual relationship.
Finally, with regard to the third phase of the CM-Newman relationship -- the after-the-fact troubleshooting Newman undertook -- the same reasoning as above applies. The relationship was contractual; CSC has not created a genuine issue of material fact to the contrary.
Maintaining this important distinction between the realms of tort and contract is also not undermined by the nature of the injury allegedly suffered by CM at the hands of Newman. There are no material facts creating a genuine issue whether Newman's design, the prototype and his other activities caused CM to suffer an injury to person or property. Unlike the property owner in Sommer, supra, there is no evidence that CM suffered any damage to property due to Newman's alleged breach of duty. CSC did not even allege such. Further, this breach of duty did not result in any type of accident or cataclysmic occurrence similar to the fire in Sommer.
Furthermore, with regard to all phases of the CM-Newman relationship, public policy does not warrant the imposition of a duty upon Newman to exercise reasonable care independent of his contractual duties. Primarily, this is so because of the nature of his services -- an unincorporated consultant engaged in the rather impersonal and relatively unregulated (compared to many other industries) field of computer design. Cf., Sommer, supra (fire safety heavily regulated). Also, the nature of his relationship with CM was arms-length and, while he may have been vested with a certain degree of responsibility, his duties were not affected by any significant public interest. If liability exists, it is purely contractual. Actually, public policy weighs against allowing tort liability considerations to interfere with the ordering of private contractual relationships in many instances, this being one of them. See, e.g., East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 90 L. Ed. 2d 865, 106 S. Ct. 2295 (1986) (declining to extend tort liability to a contractual relationship). Tort law is premised primarily on the public policy of making the injured party whole, while contract law is meant to facilitate primarily economic exchange and is premised upon the ordering of private affairs by the parties involved. Carmania Corp, N.V. v. Hambrecht Terrell Intern., 705 F. Supp. 936, 938 (S.D.N.Y. 1989). To infuse the current controversy with tort law, allowing it to further encroach upon private bargained-for relationships, would only upset the necessary order and predictability upon which the business world relies. Sargent, supra, at 28-29; Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 336, 514 N.Y.S.2d 209, 506 N.E.2d 919 (1987) ("stability and predictability in contractual affairs is a highly desirable jurisprudential value"); Shiavone, supra, at 938-940.
It should also be noted that this result does not emburden CSC with the harsh consequence of having to assume liability for which it might not be responsible. It has asserted in its Answer the affirmative defenses that (1) CM or its agents were responsible for the defects in the computer boards, (2) CM failed to mitigate its damages and (3) the computer board design and the software components of the computer chip were the responsibility of CM. Answer at PP 49-51. Thus, CSC may still attempt to establish that CM or its agents were responsible for the defects in the board, the board design and the software, and that this was at least the partial cause of CM's damages.
CSC can therefore be held liable only for the damages it is found to have caused.
Based on the foregoing, this Court concludes that, as a matter of law, Newman's duty to CM was solely contractual. CSC has failed to present any material facts creating a genuine issue to the contrary and thus, it cannot sustain a claim for contribution.
Because there was no contract to indemnify and because CSC must be found at least partially at fault to incur any liability, there is no basis for allowing third-party plaintiff CSC to pursue its claim for indemnification against third-party defendant Newman. Further, because (1) CM's alleged injury at the hands of Newman was not alleged to be an injury to person or property, (2) CM and Newman had a commercial relationship and (3) there is no basis for imposing an independent legal duty upon Newman, CSC's claim for contribution against Newman must also be dismissed.
Accordingly, it is hereby ORDERED that third-party defendant Newman's motion for summary judgment dismissing CSC's third-party complaint is granted.
DATED: Buffalo, N.Y.
November 22, 1994
John T. Elfvin