Indemnification or Contribution? Only the Hairdresser Knows for Sure! (NY)

Defendants often seek contribution and/or indemnification from other potential tortfeasors to lessen their potential liability for a claim.  These two claims are based upon entirely distinct legal principles.  A claim for contribution seeks just that from another defendant based upon the percentage of tort liability attributed to that party.  Indemnification, on the other hand, seeks to pass on the entire damages to another more culpable party.  A claim for indemnification can be based upon a contractual undertaking to hold another harmless.  Alternatively, it can be based upon common law principles where a defendant is only liable vicariously for another party’s sole negligence.

In Konsky v. Escada Hair Salon, the tenant-hair salon commenced a third-party action for common-law indemnification and contribution after plaintiff slipped and fell at the hair salon.  She claimed that she fell from a 7 1/2″ platform as she reached to hang her coat on an adjacent rack.  The claim revolved not only around the platform but also the salon’s placement of a coat rack adjacent to it.

The landlord, Brighton Realty, moved for summary judgment on the third party claim seeking dismissal of both the contribution and indemnification claims.  It argued that the tenant’s own negligence was the basis of plaintiff’s claim. The Second Department agreed to an extent.

The court held that since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party, who has itself actually participated to some degree in the wrongdoing, cannot receive the benefit of the doctrine. Here, the tenant’s liability was predicated on its own wrongful conduct in the placement of the rack, not on Brighton’s. Thus, it could not obtain indemnity.

On the other hand, the salon was entitled to pursue its contribution claim against the landlord to determine whether the platform was in a defective condition for which the landlord was responsible.

While the landlord was able to avoid potential indemnification liability, its motion did not achieve a total victory.

Special thanks to Gabe Darwick for his contribution.

For more information, contact Denise Fontana Ricci at .