The opinion of the court was delivered by: Jonathan W. Feldman United States Magistrate Judge
On January 9, 2007, plaintiff David Merges slipped and fell on a snow covered and icy portion of Churchville-Chile intermediate school's walkway. The fall caused plaintiff to suffer serious and permanent injuries. On May 13, 2008, Merges commenced this personal injury action in New York State Supreme Court, Ontario County. Based on diversity jurisdiction, the action was removed to this Court on June 9, 2008. See Docket # 1. Currently pending before the Court is defendants' motion for summary judgment.*fn1
(Docket # 32). On May 5, 2011, a hearing was held and arguments were heard from the parties. For the reasons that follow, defendants' motion for summary judgment is denied.
Plaintiff David Merges ("Merges" or plaintiff) was the Director of Pupil Services at the Churchville-Chili Central School District ("CCSD"). His office was on the grounds at the CCSD intermediate school located at 139 Fairbanks Road, Churchville, New York. On January 9, 2007 at approximately 9:00 a.m., a student at the school pulled the building's fire alarm and, as a result, the building's occupants -- including Merges -- were forced to evacuate outside to the exterior of the building pursuant to the school's established fire alarm evacuation process. See Affidavit of David R. Merges (hereinafter "Merges Aff.") attached as Exhibit "G" to Docket # 39 at ¶ 3. After arriving outside the building, Merges met up with fellow CCSD employees and walked to the front of the building. Merges observed that snow and ice had been cleared from certain areas of the school's grounds; namely, the area directly in front of the main entrance to the school. Id. at ¶ 4. Merges also noticed that the sidewalks and walkways in front of the building had been treated with an ice melting substance such as salt. Id.; see also July 7, 2009 Deposition Transcript of David Merges (hereinafter "Merges Dep.") attached as Exhibit "I" to Affidavit of Terence P. O'Connor annexed to Docket # 32 at p. 66 ("It [salt] was scattered all over the front entrance on the sidewalk.").
While assisting students with evacuating in the front of the school building, Merges learned that a fellow teacher, Hillary Grana, had slipped and fallen near the back of the school at a location referred to in the record as the "south entrance." The Principle of the intermediate school, John Bellini, asked Merges if he would find and assist Ms. Grana, and Merges agreed. See Affidavit of David R. Merges (hereinafter "Merges Aff.") attached as Exhibit "G" to Affidavit of William P. Smith, Jr., Esq. (Docket # 39) at ¶ 5. In order to get to the back of the school where Ms. Grana was located, it was necessary for Merges to walk around the side of the building which had "an established path." Id. at ¶ 6. According to Merges, no snow removal efforts had been taken to clear snow and ice from the path or to treat the path with an ice melter such as salt and, as a result, Merges walked through snow and over ice to get to the south entrance. As Merges arrived at the back exit doors of the building he noticed that, unlike the front entrance, the walkways surrounding the south entrance had not been treated with an ice-melting substance. Merges testified:
There was no salt on it. It wasn't -- when I went out of the front of the building earlier, there was no -- you could tell that [it] had attention to it. There was salt down, it looked like somebody had paid attention to that as far as making it safe to walk on and to be -- you know, have kids go out on. Where I was walking and falling or fell, that looked like there was no attention given to it.
Merges Dep. at p. 83; see also Merges Aff. at ¶ 7 ("Unlike the walkways in the front of the Intermediate School building, the walkways adjacent to the back of the Intermediate School building had not been treated by the Defendants with a substance to melt the ice on the path.").
As Merges turned the corner he fell hard on the walkway hitting his head and losing consciousness. Merges Dep. at p. 82. Merges maintains that it was not snowing at the time he fell, but there was "a buildup of ice" on the walkway. Merges Aff. at ¶¶ 11, 17. Merges suffered severe and permanent injuries as a result of the fall. Id. at ¶¶ 18-19.
At the time of Merges's fall, a "Management Services Agreement" existed between defendant Aramark and the CCSD. See Exhibit "D" attached to Docket # 32. Pursuant to the contract, Aramark "agreed to perform Custodial, Plan Operations and Maintenance, and Grounds Management Services on [CCSD's] premises." See id. In return, CCSD agreed to pay Aramark $200,340.00 per year for five years (total payments exceeding one million dollars) in exchange for Aramark providing managerial services for custodial, plant operations, maintenance and grounds operations. Id.
The parties dispute the parameters of the contract and, specifically, whether Aramark agreed to assume control and responsibility of CCSD's grounds maintenance operations. Aramark asserts that the contract it had with the School District was only "consultative" and summary judgment should be granted in its favor because "the proof demonstrates that ARAMARK never undertook any steps to remove snow and/or salt on the premises. Rather, the district performed those functions." See Affidavit of Terence P. O'Connor, Esq. (hereinafter "O'Connor Aff.") annexed to Docket # 32 at ¶¶ 11, 14. According to Aramark, School District employees did the snow removal work and since the School District "retained significant control over" its land, premises and facilities, it "retained its common law duty as landowner to maintain the premises in a safe condition for Merges and others." Id. at ¶ 13. Aramark contends that pursuant to its contract with the School District, it was "to lend its expertise to the district as to facility management. ARAMARK was never contracted to, nor did it ever undertake the snow and ice removal processes for the district." Id. at ¶ 14. Aramark asserts that its agreement with the School District only "called for ARAMARK's general oversight and expertise in facility management," and did not call for Aramark to be responsible for the snow and ice removal processes at the School District's facilities. Id. at ¶ 18. Aramark asserts that CCSD retained significant control over the premises, and Aramark did not assume responsibility for snow and ice removal and "owed no duty to Merges." Id. at ¶ 28.
Plaintiffs, on the other hand, assert that Aramark's contract with CCSD confirms that defendants "completely and entirely assumed exclusive control over the management and operation of the District's buildings, facilities, and grounds . . . including ground maintenance and inspections and the treatment and removal of snow, ice, and slippery conditions." See Affidavit of William P. Smith, Jr., Esq. (hereinafter "Smith Aff.") (Docket # 39) at ¶ 11.
Plaintiffs contend that pursuant to the terms of the contract, "Defendants agreed to establish a snow removal plan, which involved removing snow and ice from entrances, walks, roads, and parking lots on the District property, which they did not do." Id. at ¶ 15. Plaintiffs maintain that the contract placed defendants "in complete and exclusive control of grounds maintenance for the safety of the District's employees, including Mr. Merges." Id. at ¶ 16. Plaintiffs assert that it was Phillip Behe's, Aramark's on site Manager of Facilities, "duty to maintain safe sidewalks at the District's Premises," as he "was in a position to exclusively create and implement the entire snow and ice removal process on the District's premises" and he "unilaterally trained and supervised the service employees, such as Kenneth Tanner, with respect to grounds maintenance." Id. at ¶¶ 21-22. Plaintiffs argue that the School District "did not retain any responsibility or right to direct, control, or act to remove ice [and] snow at the premises in light of the Agreement" and, as a result, "Defendants owed Mr. Merges a duty of care" because "it ...