Skip to main content



Spellman v. Seton Hall University

A-6591-97T2 (N.J. Super. App. Div. 1999) (Unpublished)

CONTRACTS; INDEMNIFICATION—The occurrence of an injury in an unusual or freakish manner does not eviscerate a broad form indemnification provision in a contract; foreseeability is not a requirement.

A cleaning contractor’s employee was sexually assaulted while working in a university dormitory room. At trial, she was awarded substantial damages and the university then sought indemnification from the cleaning contractor. That indemnification claim was based upon a contractual provision reading, in part, “[t]he Contractor agrees to defend, indemnify, and hold the University, ... harmless from and against any and all claims ... for personal injury ... arising out of or in connection with this contract.” The lower court concluded that the university could not prevail on its contractual indemnity claim because the personal injury claim “did not arise out of the performance of the maintenance contract or any reasonably foreseeable event to the contract parties.” The lower court reasoned that “sexual assault is not a foreseeable risk encompassed in cleaning a college dorm room nor can it be said that the sexual assault was an obvious risk contemplated by the parties when they made the contract.” The Appellate Division disagreed because, in it’s view, the cleaning employee was performing her job duties on the University’s campus when she was assaulted and her personal injury claim “arose out of or in connection with” the maintenance contract between the university and the cleaning contractor. “Simply because the injury occurred in an unusual or even freakish manner does not eviscerate this unqualified ‘broad form’ indemnity agreement in favor of [the University].” Parties may contract without regard to fault, but only with regard to liability. “It is not ‘necessary that parties incorporate into the language of their agreement all specific possibilities through which the indemnitee-owner might cause an accident… .’” Here, the parties knew that the contractor’s employees would be on the University’s premises daily, performing cleaning and maintenance work and incidentally exposing the University to liability claims arising from their work. Therefore, the Court concluded “that the intent of the broadly-phrased indemnity clause was for [the contractor] to protect [the University] from exposure to these claims.” That intent was also manifest in the contractor’s agreement to obtain insurance to respond to the contractual indemnity liability created by this clause. The language “arising out of or in connection with this contract” evinces a “broad form” intention with respect to the origin of the risk and the work of the contractor, not in any particular kind of negligence or in tort notions of foreseeability. The contract was replete with provisions giving the contractor supervisory duties over its employees and requiring it to take “all necessary and proper precautions to protect the safety of employees and other persons and to protect all property from any damages from whatever cause.” These provisions fortified the Court’s conclusion that the University intended its contractor to hold it harmless from claims for personal injuries incurred by the contractor’s employees while they were working at the University. The employee’s injuries from the assault arose out of performance of her job-related activities. “In this sense there clearly was ‘a sufficient nexus between the claim’ and the maintenance contract.”


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com