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John Gronski et al v. County of Monroe

November 17, 2011


The opinion of the court was delivered by: Ciparick, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

At issue in this appeal is whether the courts below erred in finding, as a matter of law, that defendant County of Monroe (the County) relinquished control over a county-owned but independently operated recycling center such that the County is not liable to plaintiff John Gronski for injuries sustained as a result of an unsafe condition on the premises. We hold that an issue of fact exists as to whether and to what extent the County exercised control over the subject property.


Plaintiff was employed as a mechanic by Metro Waste Paper Recovery, U.S., Inc. (Metro Waste) at a recycling center owned by the County. Metro Waste operated the facility as an independent contractor. On August 11, 2003, plaintiff was walking through the recycling center when a bale of paper weighing nearly one ton fell from a stack of other bales and landed on him. According to plaintiff's complaint, the stacked bales were not properly placed in the designated storage area, and no support mechanisms were used to secure them in place. As a result of the accident, plaintiff sustained serious injuries, including numerous bone fractures, a torn urethra, internal bleeding and a collapsed lung. An Occupational Safety and Hazard Administration (OSHA) investigation report stated that the unsecured stacked bales presented a serious regulatory violation.*fn1 Metro Waste was cited accordingly.

The relationship between the County and Metro Waste is governed by an Operations and Maintenance Agreement (the Agreement), which the parties entered into in 2002. The Agreement established that Metro Waste "shall have complete charge of and responsibility for the Facility and Facility Site, its subcontractors, material men, materials, equipment and personnel engaged in the performance of its work and . . . shall perform its work in accordance with its own methods . . . subject to limited review authority of the County[.]" The Agreement also assigned all responsibility for repair, maintenance and safety at the facility to Metro Waste. The County, however, retained "the right of access to the Facility in order to determine compliance by the Contractor with the terms and conditions of this Agreement . . . [and] the right . . . to take visitors and group tours through [the Facility]." The Agreement also gave the County the right to, among other things, determine which persons were authorized to utilize the recycling center, access all books and records maintained and terminate the Agreement without cause on 10 days notice. Finally, the Agreement required Metro Waste to submit for the County's approval an Annual Program Manual describing its "Plant Operating Procedures, including maintenance, staffing, health and safety."

Plaintiff commenced the instant action*fn2 against the County alleging that the County was negligent for failing to exercise due care to prevent an unsafe condition, to wit, improperly stacked and stored bales at the recycling center.

Plaintiff also claimed that the County was negligent in allowing a defective baler to be used at the recycling center, resulting in improperly wound bales that contributed to the accident.*fn3 The County moved for summary judgment, arguing that, like an out-of-possession landlord, it had relinquished all control over the maintenance and operations of the recycling center to Metro Waste pursuant to the Agreement and was not contractually obligated to repair unsafe conditions on the premises.

In opposition to the County's motion, plaintiff submitted the deposition testimony of County Department of Environmental Services engineers Patrick Collins and Russel Rutkowski, and Metro Waste general manager Jeffrey Meyers. Collins testified that he conducted public tours at the facility approximately every week. Rutkowski was charged with overseeing Metro Waste's compliance with the Agreement. He testified that he visited the recycling center unannounced on a weekly basis, typically walking through the entire facility to ensure that work was being performed in accordance with the Agreement's terms. Both plaintiff and Meyers attested to seeing Rutkowski at the facility, with Meyers stating that the visits typically lasted about an hour. When asked about his oversight authority on maintenance and safety issues at the facility, Rutkowski vacillated, stating both that he did and did not possess the authority to monitor and report safety hazards. Rutkowski went on to state that if he observed an unsafe condition, such as a worker without a hard hat, he would bring it to Meyers' attention. Rutkowski also indicated that Collins would report his observations of litter or other housekeeping and maintenance issues to Rutkowski, who in turn relayed them to Meyers, though Meyers stated he did not discuss maintenance or safety with Rutkowski or Collins. Rutkowski further testified that he had previously seen bales stacked nine feet high outside of the designated storage area, but did not know they presented an OSHA violation.

Supreme Court granted the County's motion for summary judgment. It held that "[l]ooking at the entire [Agreement], the rights retained by the County do not create a duty to maintain a safe environment for an employee of Metro Waste . . . Under the [Agreement] Metro Waste was responsible for all safety issues . . . There is no question of fact of control created by the terms of the [Agreement]." Supreme Court further held that "the County, as an out-of-possession landlord who relinquishes control of the premises and is not contractually obligated to repair unsafe conditions, is not liable to the [p]laintiff . . . for personal injuries caused by an unsafe condition on the premises" (internal quotation marks omitted). The Appellate Division affirmed, holding that "[Supreme Court] properly analogized this case to those cases involving out-of-possession landlords" (Gronski v County of Monroe, 73 AD3d 1439, 1439 [4th Dept 2010]). The Appellate Division concluded that the County "met its initial burden of establishing that it did not exercise control over the subject facility [and] . . . [p]laintiff failed to raise a triable issue of fact" (id. [internal quotation marks omitted]). We granted plaintiff leave to appeal (15 NY3d 708 [2010]) and now reverse.


To begin, we reject the out-of-possession landlord standard as applied by the courts below as no leasehold was created by the Agreement (see Butler v Rafferty, 100 NY2d 265, 272 n 3 [2003]). Generally, a landowner owes a duty of care to maintain his or her property in a reasonably safe condition (see Peralta v Henriquez, 100 NY2d 139, 144 [2003]; see also Basso v Miller, 40 NY2d 233, 241 [1976]). That duty is premised on the landowner's exercise of control over the property, as "the person in possession and control is best able to identify and prevent harm to others" (Butler, 100 NY2d at 270). Indeed, "[i]t has been uniformly held that control is the test which measures generally the responsibility in tort of the owner of real property" (Ritto v Goldberg, 27 NY2d 887, 889 [1970]). Thus, a landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property (see Chapman v Silber, 97 NY2d 9, 19 [2001]). Control is both a question of law and of fact (see Ritto, 27 NY2d at 889).

In Ritto, we applied this standard and concluded that, despite a lease that transferred possession and control to commercial tenants, the issue of whether the landlord actually exercised control over the premises was one for the jury (see id. at 889-890). There, the defendant landlord leased a room to operators of an automatic washing machine business, granting the tenants "exclusive use of the aforementioned room" (id. at 888). The plaintiff, a residential tenant injured by a defective washing machine, sued both the landlord and the commercial tenants (see id. at 888-889). While we found that, pursuant to the lease, the "landlord surrendered the right of occupancy . . . and reserved no control over the instruments used by those tenants in their business" (id. at 888), we concluded that:

"[t]here is proof . . . from which a jury might determine that the landlord, by a long course of conduct of his employees in reporting malfunctions of the machines to the repair service and the owner, so intervened in the operation of the business as to give rise to a reliance by residential tenants in the building on reports of malfunction being made by the landlord. Hence a liability might result if reports were not made and this played an effective part in the occurrence of the accident" (id. at 889).

More recently, in Butler, we applied the control principle to find that the defendant, a tenant-in-common who entered into a non-lease agreement with his sister/co-tenant, was not liable to a plaintiff injured on their jointly-owned property (see 100 NY2d at 268-271). The agreement divided the co-tenants' living quarters and obligated both parties to share in expenses for maintenance and repairs (see id. at 267). The plaintiff, a guest who was injured after falling from a bunk bed on the sister's portion of the property (see id. at 267-268), contended "that [the brother's] control of the premises was established primarily through [the repair] clause in the contract" (id. at 271). We concluded that, because the defendant exercised no supervisory role over his sister's sphere, was not permitted access to it, and in fact could not access it ...

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