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Effect of Contract for Support or Indemnification

An excavator who contracts with the adjoining owner for the protection of such owner’s buildings incurs a liability for damage to the buildings by a breach of the contract. In Kreischer, the plaintiff, adjoining building owner undertook to improve his building, defendant gave plaintiff notice that plaintiff had to protect plaintiff’s walls because defendant was starting to demolish some of its buildings.  The parties entered into an agreement under which defendant and its contractors, whether of independence or agency, agreed to protect a certain building during the progress of the erection of the addition.  The adjoining owner’s property was damaged.  The court found that the adjoining landowner had the right to rely upon the contract since the obligation was assumed by contract.  The court held that whether the damages  were the immediate result of what the contractors did or what was advised to be done by an architect made little difference because defendant failed to protect the building in question and, therefore, neglected to perform its contract.[ii] The rule relating to independent contractors can never be invoked to release a party from a liability s/he has himself by a contract assumed.  Thus, an employer who assumed by contract a specific duty to protect adjoining land from damage by excavation on his own land cannot escape the liability by delegating the work to an independent contractor.[iii]

[i] Kreischer v. Hampton Co., 163 A.D. 925 (N.Y. App. Div. 1914)

[ii] Id.

[iii] Waller v. Lasher, 37 Ill. App. 609 (Ill. App. Ct. 1891)

Inside Effect of Contract for Support or Indemnification