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DiChristofano v. Neiman Marcus Group

October 30, 2007


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Laura DiChristofano ("DiChristofano") brought a personal injury action in Illinois state court alleging negligence on the part of Defendants The Neiman Marcus Group, Inc. ("Neiman Marcus"), Otis Elevator Company ("Otis"), and United Technologies Corporation ("UTC"). The case was removed to this Court on diversity grounds. Neiman Marcus brought a two-count cross-claim against Otis and UTC for contribution and breach of contract. Otis and UTC move to dismiss Count II of Neiman Marcus's cross-claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For reasons stated herein, Defendants' Motion to Dismiss Count II of Neiman Marcus's Cross-claim is granted as to UTC and is therefore dismissed with prejudice and is denied as to Otis.

Neiman Marcus's Allegations

At the motion to dismiss stage, all of the cross-plaintiff's allegations are accepted as true. DiChristifano sued Neiman Marcus for injuries she sustained while riding on an escalator at a one of its retail stores in Oak Brook, Illinois. The escalator stopped and jerked, causing DiChristofano to fall. Pl. Compl. Count II, ¶ 16. Neiman Marcus oversaw the operation of the escalators at its shopping facility at the time of DiChristofano's accident. Id. ¶ 10. Neiman Marcus contracted with Otis to perform "Maintenance Services" upon the escalator(s) at issue. Cross-cl. ¶ 2. Under the "Master Vertical Transportation Service Agreement" (the "Agreement") between Otis and Neiman Marcus, "Maintenance Services" was defined as follows:

1.1 When used in this Agreement, the terms Maintenance Services shall mean;

a. the regular and systematic maintenance, adjustment, lubrication, replacement and repair of all components of the Vertical Transportation Equipment except as provided in Section 1.2(d).

b. Preventative maintenance, including but not limited to, inspection of the Vertical Transportation Equipment on regularly scheduled visits to a Neiman Marcus Facility.

c. Except as provided in 1.2(c) below, the cleaning of the Vertical Transportation Equipment, including, but not limited to, the regularly and systematic cleaning of all escalator machine rooms, hoistways, tops of cars and pits, escalator machinery space and truss areas. Once every three years escalators shall be thoroughly cleaned and inspected. Cleaning shall include the removal of a portion of the steps so that all areas of the escalator and truss can be thoroughly cleaned and lubricated. Otis will absorb any overtime incurred during this clean down process and Nieman Marcus will allow Otis access to escalators prior to store opening time.

Cross-cl. ¶ 3. Section 3.1 provides:

Contractor shall use all reasonable care to maintain the Vertical Transportation Equipment in proper and safe working condition in accordance with the highest standards known to the industry; and shall furnish all supplies, material, parts, labor, labor supervision, tools, equipment and lubricants necessary to provide Maintenance Services. All of the foregoing furnished by contractor shall be of the highest quality. Section 6 provides: Otis shall, if so directed by Neiman Marcus, cooperate in the defense of suits brought against Neiman Marcus based on accidents involving the equipment and/or service. Otis shall indemnify, and hold harmless Neiman Marcus, its affiliates and their respective directors, officers, employees, agents and representatives and their respective successors and assigns (the "Indemnified Parties"), from and against all liability, demands, claims actions or causes of action, assessments, losses, fines, penalties, costs, damages and expenses for personal injury or property damages, including reasonable attorneys' fees (collectively "Damages") sustained or incurred by any of the Indemnified Parties as a result of or arising out of or relating to the work to be provided hereunder, or to the extent caused by Otis' acts or omissions, but not to the extent caused by others.

Cross-cl. ¶ 9.

Section 6 also provides in pertinent part:

Contractor shall maintain at is own expense the following policies of insurance from reputable amounts required by law and sufficient to fully protect contractor and Neiman from an against any and all claims, damages, losses, expenses, liens, causes of action, ...

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