Franze v. County of Chautauqua

—Order affirmed without costs. Memorandum: In this action to recover for personal injuries sustained by plaintiff Martha Franze, plaintiffs appeal from an order that granted the motion of defendant County of Chautauqua for summary judgment dismissing the complaint. The injury occurred on the premises of the County-operated nursing home, where plaintiff, a beautician, was performing hair dressing services for a wheelchair-bound resident. Plaintiff’s technique involved tipping the resident’s wheelchair backwards and hooking its handles over the edge of the tub in order to shampoo or rinse the resident’s hair. Plaintiff allegedly injured her back while tipping or lifting the resident’s wheelchair.

We conclude that the court properly granted defendant’s motion for summary judgment. In our view, the County is not liable for plaintiff’s injuries. There is no basis on this record to conclude that the County had any duty to protect plaintiff from injuring her back while performing hair dressing services. Plaintiff was an independent contractor whom the County allowed on the nursing home premises for her own benefit and for the benefit of her customers, nursing home residents who independently contracted with plaintiff for beauty care. There is no colorable contention that there was a defect in the premises (see, Macey v Truman, 70 NY2d 918, 919), and we cannot agree with plaintiff’s assertion that the County was obligated to equip plaintiff for her task.

Nor can we equate the conversation between plaintiff and a nurse’s aide with an assumption of duty on defendant’s part. Seven years before this incident, when plaintiff first went to the nursing home to conduct her hair dressing business, plaintiff asked a nurse’s aide "how prior beauticians rinsed [the hair of] people that were in wheelchairs that could not get out of their wheelchair”. The aide advised plaintiff that the prior beautician tipped the wheelchair in a reclining position and hooked its handles over the edge of a tub. In plaintiff’s words, "that’s the way she [the nurse’s aide] had seen it done”. Providing that information did not give rise to a duty on the County’s part to protect plaintiff from the "unfortunate consequences” of her own overexertion (see, Macey v Truman, supra).

Plaintiff also places reliance on the fact that, on prior occasions, County employees had responded to her requests for help in tipping or lifting patients. The fact that defendant’s employees occasionally had accommodated plaintiff by helping her does not give rise to a duty to continue to do so. Further, plaintiff had performed the same task many times before without assistance, thus negating any duty to assist (see, Souffrant v Quality Wholesale Veal Ctr., 135 AD2d 398, 400; Dupper v Conrail, 120 AD2d 638, 640-641). In any event, this is not an instance in which plaintiff asked for help and was refused. The record unequivocally establishes that plaintiff was injured while attempting to lift a patient by herself, without either asking or waiting for help from defendant’s employees. The law does not impose an affirmative and continuous obligation on defendant’s employees to supervise plaintiff’s activities for plaintiff’s own protection.

All concur, except Lawton and Fallon, JJ., who dissent and vote to reverse in the following Memorandum.