Opinion
00 CV 783 (ILG).
November 6, 2001
MEMORANDUM ORDER
Plaintiff Velo Flowers ("Flowers") brings this negligence action for injuries he allegedly sustained when he sat down on a row of chairs in LaGuardia airport which subsequently tipped over. Flowers seeks $500,000 in damages from the owner of the chairs, defendant/third-party plaintiff Delta Air Lines, Inc. ("Delta"). Delta, in turn, has sued third-party defendant Service Force, Inc. ("Service Force"), with whom Delta entered into an agreement to provide maintenance services for its facilities at LaGuardia.
Delta now moves for summary judgment against Flowers. Delta argues that Flowers has failed to demonstrate that Delta had notice of any defect in the chairs, and thus Flowers cannot make out a prima facie case of negligence. In response, Flowers asserts that he is proceeding under the theory of res ipsa loquitur, and therefore he need not show that Delta had notice of any defect. Delta contends that res ipsa loquitur is inapplicable to the facts of this case, because the chairs which caused plaintiffs injuries were not in Delta's "exclusive control."
Delta also moved for summary judgment against Service Force, but Delta has withdrawn that motion.
Flowers is correct that res ipsa loquitur does not require Delta to have had actual notice of a defect in the chairs. Nevertheless, for the reasons stated below, Delta's motion for summary judgment is granted, because res ipsa loquitur is inapplicable to the facts of this case.
BACKGROUND
The relevant facts, viewed in the light most favorable to plaintiff (as this Court must do on a motion for summary judgment by the defendant see Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987)), are as follows.
Flowers has not complied with Local Civil Rule 56.1, which requires the filing of a "separate, short and concise statement of the material facts" which are in dispute. Long after it filed its summary judgment motion, Delta belatedly filed a Local Rule 56.1 statement. For this reason, the Court has gleaned the relevant facts from the affirmations in support of, and in opposition to, Delta's summary judgment motion, as well as from three exhibits annexed to the Affirmation of Marguerite Peck in support of Delta's motion for summary judgment.
On January 4 or January 5, 1999, Flowers went to New York's LaGuardia airport to pick up his sister, who was returning from a vacation in Birmingham, Alabama. (See Tr. of Dep. of Velo Flowers ("Tr.") at 10, 12.) (Annexed to Peck Affirmation as Ex. E.) Flowers's sister was scheduled to arrive on a Delta flight from Birmingham to LaGuardia. (See id. at 9-10.) Flowers got to the airport approximately fifteen to twenty minutes before his sister's flight landed; upon arrival, Flowers entered the terminal and proceeded to the Delta baggage claim area, where he had arranged to meet his sister. (See id. at 12-13.)
Flowers stood in the baggage claim area until his sister arrived, and then proceeded with her to one of Delta's baggage carousels to wait for her bags. (See id. at 14-15.) Upon arriving at the carousels, Flowers, who was "tired" and felt he could no longer stand because of his bad back (see id. at 20, 76), went to sit down on a row of three chairs, each of which was attached to the others. (See id. at 16-18.) The row of chairs was not attached to the wall or the ground, however. (See id. at 27.) Flowers, who is 5'9" tall and weighed 285 or 290 pounds at the time of the accident (see id. at 20). sat down "hard" on the row of chairs. Immediately after Flowers sat down, the row of chairs flipped over. (See id. at 20.) A number of people in the area came to Flowers' aid and helped him to his feet, while others picked up the row of chairs. At that point, Flowers observed that one of the two arms supporting the chairs from underneath was rotated approximately 90 degrees from its original position. (See id. at 63; see also Peck. Aff. Ex. F.) Flowers apparently did not see the position of the support arms before the chairs fell over. (See Tr. at 64.)
Flowers testified as follows at his deposition:
Q: Now, when you sat down, would you say that you sat down softly — A: Hard, I said that before, hard. Q: You sat down hard? A: I'm big, look at me. I was tired, I can't hardly walk. So I just bopped down.
(Tr. at 20.)
Although Flowers apparently believes that the position of the support arm was the cause of the accident (see Tr. at 61-64), Flowers has not offered any evidence to support his belief.
Flowers stood for a few minutes but then became dizzy, so he sat down on another row of chairs while his sister retrieved her bags. (See id. at 23-24.) Flowers then left the airport and returned home with his sister. (See id.) Flowers did not report the incident to anyone at Delta. (See id. at 23.)
A security guard evidently witnessed the incident and asked Flowers if he was injured. (see Tr. at 23.) It is unclear if the security guard worked for Delta, the airport, or some other entity.
Later that evening, Flowers began experiencing pain in his back, neck, hips and shoulders. The pain got worse the following morning. (See id. at 26.) That day, or possibly the following day, Flowers went to Brooklyn Caledonian Hospital, complaining of headaches, chest pain, and pain in his hips and shoulders. (See id. at 28-29.) Since that time, Flowers has received ongoing treatment for these problems, which allegedly were caused by the chairs flipping over.
Flowers commenced this lawsuit against Delta on January 3, 2000. In the complaint, Flowers alleges that Delta was negligent in the maintenance of the chairs, and that Delta's negligence proximately caused Flowers's injuries. (See Compl. ¶¶ 5-7.) Plaintiff specifically averred in his complaint that he would "rely on the concept of Res Ipsa Loquitor [sic] at the trial of this action." (Id. ¶ 7.)
Delta has now moved for summary judgment. According to Delta, Flowers is unable to establish Delta's liability in this case, because Flowers has failed to demonstrate that Delta had either actual or constructive notice of any problem with the chairs. (See Mem. of Law at 6-7.) In response, Flowers argues that he is relying on the theory of res ipsa loquitur to establish Delta's liability, and that notice is not required to invoke the res ipsa loquitur doctrine. (See Opp. Mem. of Law at 1, 5.) Delta contends that res ipsa loquitur cannot apply to the facts of this case, because Flowers has failed to satisfy all the prerequisites necessary to invoke the res ipsa loquitur doctrine. (See Reply Mem. of Law at 2-4.)
DISCUSSION
I. Standard for Summary Judgment
Summary judgment "shall be rendered forthwith if the pleadings, depositions . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A "moving party is entitled to judgment as a matter of law [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof"Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985) (internal quotation marks and citations omitted). In deciding a summary judgment motion, a court should not resolve disputed issues of fact; rather, it simply must decide whether there is any genuine issue to be tried. Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). A disputed fact is material only if it might affect the outcome of the suit under the governing law. A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a reasonable jury could return a verdict in her favor. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 248-249 (1986). "In assessing the record to determine whether there is a genuine issue of fact, the court is required to draw all inferences in favor of the party against whom summary judgment is sought." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989).
Additionally, while summary judgment is disfavored in negligence cases, see Hood v. Regency Maritime Corp., No. 99 Civ. 10250, 2000 WL 1761000, at *2 (S.D.N.Y. Nov. 30, 2000), "the mere fact that a case involves a claim of negligence does not preclude a granting of summary judgment," Cumminsky v. Chandris. S.A., 719 F. Supp. 1183, 1186 (S.D.N.Y. 1989); accord Hood, 2000 WL 1761000, at *2 (citing Cumminsky). Indeed, New York courts frequently grant motions for summary judgment in negligence cases, including cases in which the plaintiff attempts to rely on the theory of res ipsa loquitur. See, e.g., Petro v. N.Y. Life Ins. Co., 277 A.D.2d 213, 715 N.Y.S.2d 725 (2d Dep't 2000); Bass v. Otis Elevator Co., 255 A.D.2d 284, 680 N.Y.S.2d 113 (2d Dep't 1998); Collins v. Grand Union Co., 201 A.D.2d 852, 608 N.Y.S.2d 335 (3d Dep't 1994).
The Court agrees with the parties that New York law applies to this action. A federal court sitting in diversity applies the law of the forum state and, in tort actions, New York courts generally apply the law of the jurisdiction where the tort occurred. See Velez v. Sebco Laundry Sys., Inc., No. 00 CIV 5027, 2001 WL 43609, at *2 (S.D.N.Y. Jan. 18, 2001); Franklin v. Krueger Int'l. Inc., No. 96 CIV 2408, 1997 WL 691424, at *3 n. 1 (S.D.N.Y. Nov. 5, 1997).
II. The res ipsa loquitur doctrine
The Second Circuit has recognized that res ipsa loquitur "is an often confused and often misused doctrine that enables a jury presented only with circumstantial evidence to infer negligence simply from the fact that an event happened." St. Paul Fire Marine Ins. Co. v. City of N.Y., 907 F.2d 299, 302 (2d Cir. 1990). The inference is permitted because "certain occurrences contain within themselves a sufficient basis for an inference of negligence." Dermatossian v. N.Y.C. Transit Auth., 67 N.Y.2d 219, 226, 501 N.Y.S.2d 784, 788 (1986) (citations omitted). Thus, the res ipsa loquitur doctrine "simply recognizes what we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence." Id. (citations omitted). The doctrine permits a plaintiff to establish a prima facie case of negligence without proving the elements usually necessary to state a negligence claim.
For this reason, Flowers correctly argues that notice of a defect in the instrumentality which caused a plaintiffs injuries — which is required to be proven in traditional negligence cases — need not be proven in cases involving res ipsa loquitur. See Harmon v. United States Shoe Corp., 262 A.D.2d 1010, 1011, 692 N.Y.S.2d 566, 567 (4th Dep't 1999); Smith v. Moore, 227 A.D.2d 854, 856, 642 N.Y.S.2d 393, 394 (3d Dep't 1996).
In New York, a case may not be submitted to a jury on the theory of res ipsa loquitur unless the plaintiff demonstrates that: (1) the event is of a kind that ordinarily does not occur in the absence of someone's negligence; (2) the event is caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the event is not due to any voluntary action or contribution on the part of the plaintiff. Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 494, 655 N.Y.S.2d 844, 846 (1997); Ebanks v. N.Y.C. Transit Auth., 70 N.Y.2d 621, 623, 518 N.Y.S.2d 776, 777 (1987); Dermatossian, 67 N.Y.2d at 226, 501 N.Y.S.2d at 788; see also St. Paul Fire, 907 F.2d at 302 (citing Dermatossian). Here, Flowers cannot satisfy either the second or third prong of this test, and therefore he cannot proceed on a res ipsa loquitur theory.
A. The chairs were not in Delta's exclusive control
In St. Paul Fire, the Second Circuit discussed the "exclusive control" prong necessary to invoke res ipsa loquitur. The court stated:
The purpose of the exclusive control requirement is to eliminate within reason the possibility that the event was caused by someone other than the defendant. Accordingly, in order to establish exclusive control, the evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it. Although the possibility of all other causes need not be eliminated altogether, their likelihood must be so reduced that the greater probability lies at defendant's door. In other words, to invoke the doctrine of res ipsa loquitur, the plaintiff must establish control by the defendant of sufficient exclusivity to fairly rule out the chance that [the injury] was caused by some agency other than defendant's negligence.907 F.2d at 302-03 (alteration in original) (internal quotation marks and citations omitted). In general, "it is not enough to prove that the defendant had control if there is sufficient evidence that a third party also had access to the instrumentality that caused the injury." Id. at 303. For this reason, "proof that third parties have had access to the instrumentality generally [means that] the owner's negligence cannot be inferred." St. Paul Fire, 907 F.2d at 303 (citing De Witt Properties v. City of N.Y., 44 N.Y.2d 417, 426, 406 N.Y.S.2d 16, 27 (1978)). Therefore, courts generally hold that injury-causing instrumentalities which are accessible by the general public are not controlled with "sufficient exclusivity to fairly rule out the chance that the defect was . . . caused by some agency other than defendant's negligence."Dermatossian, 67 N.Y.2d at 228, 501 N.Y.S.2d at 789.
Contrary to Delta's assertion, however, the fact that Delta had a service contract with Service Force does not preclude Flowers's use of res ipsa loquitur. See Myron v. Millar Elevator Indus., Inc., 182 A.D.2d 558, 559, 582 N.Y.S.2d 201, 202 (1st Dep't 1992); Duke v. Duane Broad Co., 181 A.D.2d 589, 591, 581 N.Y.S.2d 767, 769 (1st Dep't 1992); Lopez v. Sears, Roebuck Co., 187 Misc.2d 165, 171, 721 N.Y.S.2d 481, 487 (Sup.Ct., Nassau County, 2001).
For example, in Raimondi v. New York Racing Association, the plaintiff was injured when the seat in which he was sitting at an off-track betting establishment collapsed. 213 A.D.2d 708, 708-09, 642 N.Y.S.2d 273, 274 (2d Dep't 1995). At trial, the plaintiff failed to adduce any evidence indicating that the defendant had actual or constructive notice of a defect in the chair, and the defendant moved for judgment as a matter of law. In response, the plaintiff argued that no such evidence was required, because he was relying on the res ipsa loquitur doctrine. The trial court held that res ipsa loquitur was inapplicable, and dismissed the complaint. Id. at 708 642 N.Y.S.2d at 274.
The Appellate Division affirmed. The court stated that "[i]n this case involving a racetrack where thousands of people go every day, the proof did not adequately exclude the chance that the seat had been damaged by one or more of the defendant's patrons who were invited to use it." Id. at 709, 624 N.Y.S.2d at 275 (citations omitted). Thus, "the evidence . . . did not show control of the seat by the defendant of sufficient exclusivity to fairly rule out the chance that any purported defect in the seat was caused by some agency other than the defendant's negligence," and res ipsa loquitur therefore could not apply. Id.
Similarly, in Dermatossian, the plaintiff was injured when he struck his head on a defective grab handle on a New York City public bus. 67 N.Y.2d at 221, 501 N.Y.S.2d at 785. The trial court submitted the case to the jury on the theory of res ipsa loquitur, and the jury returned a verdict for the plaintiff. After the Appellate Division affirmed, the city appealed to the Court of Appeals. The high court reversed, and ordered that the complaint be dismissed. Id. at 228, 501 N.Y.S.2d at 789. The court held that "the crucial fact that the grab handle was continuously available for use by defendant's passengers" meant that the plaintiff could not adequately demonstrate that the grab handle was in the defendant's exclusive control. Id. Many other New York cases agree that, when an injury-causing instrumentality is widely accessible by the general public, the owner of the instrumentality does not exercise "exclusive control," and thus res ipsa loquitur cannot apply. See, e.g., Rivera-Emerling v. M. Fortunoff of Westbury Corp., 281 A.D.2d 215, 217, 721 N.Y.S.2d 653, 655 (1st Dep't 2001) (res ipsa loquitur not applicable because collapsing chair "was on an open sales floor to which innumerable shoppers had access. Hence, there was no basis for concluding that defendant had exclusive control of the chair."); Chini v. Wendcentral Corp., 262 A.D.2d 940, 692 N.Y.S.2d 533 (4th Dep't 1999) (no exclusive control over chair in restaurant where defendant's customers "had continuous access to the chair"); Ruggiero v. Waldbaums Supermarkets, Inc., 242 A.D.2d 268, 269, 661 N.Y.S.2d 37, 39 (2d Dep't 1997) (six-pack of juice cans not in defendant's exclusive control because "the juice cans may have been dislodged by one or more prior shoppers"); Meegan v. Westbury Property Investment Co., 234 A.D.2d 433, 651 N.Y.S.2d 152, 153 (2d Dep't 1996) (display gondola which fell on plaintiff not in defendant's exclusive control because general public had "unfettered access" to gondola).
Accord Ebanks, 70 N.Y.2d at 623, 518 N.Y.S.2d at 777 (no exclusive control over escalator at subway station "used by approximately 10,000 persons weekly"); St. Paul Fire, 907 F.2d at 303 ( res ipso loquitur inapplicable because room in which flood started was unlocked, and hence "anyone with access to the seventh floor could have walked right into the room"); Velez v. Sebco Laundry Sys., Inc., No. 00 CIV 5027, 2001 WL 43609, at *3 (S.D.N.Y. Jan. 18, 2001) (no exclusive control because all building tenants had access to dryer which caused accident); Beinert v. PGA Tour, Inc., No. 98-CV-1491, 1999 WL 890579, at *3 (E.D.N.Y. Sept. 29, 1999) ("It is difficult to conceive of premises that are less within the exclusive control of their owner than a golf course that is played by 40,000 people each year.").
Here, Flowers cannot establish that the chairs involved in this case were within Delta's exclusive control. There cannot be any serious dispute that the public had "unfettered access" to the baggage claim area of the Delta terminal at LaGuardia airport. Meegan, 234 A.D.2d at 433, 651 N.Y.S.2d at 153. Therefore, the Court cannot fairly rule out that the alleged defect in the chairs "was caused by some agency other than defendant's negligence." Dermatossian, 67 N Y2d at 228, 501 N.Y.S.2d at 789. Stated differently, there is no basis on which the Court can conclude that any negligence in this case "lies at defendant's door," instead of with some individual who may have damaged the chairs in the baggage claim area before Flowers sat down. See Ebanks, 70 N.Y.2d at 623, 518 N.Y.S.2d at 777 (citation omitted).
Flowers relies on Finocchio v. Crest Hollow Country Club at Woodbury, Inc., 184 A.D.2d 491, 584 N.Y.S.2d 201 (2d Dep't 1992), and Dawson v. National Amusements, Inc., 259 A.D.2d 329, 687 N.Y.S.2d 19 (1st Dep't 1999), two collapsing chair cases, to establish Delta's exclusive control. Both Finocchio and Dawson are distinguishable from this case.Finocchio did not involve a chair continuously available to the public; rather, the chair was located in a "private setting . . . presumably used by less [ sic] people than a bus grab handle or the `thousands' of people that use a racetrack seat." Crispo v. Art Student League, 180 Misc.2d 54, 56, 687 N.Y.S.2d 582, 584 (Sup.Ct., Kings County, 1999) (distinguishingFinocchio from Dermatossian and Raimondi). The Dawson court relied on the fact that the chair at issue was inspected every evening, and that the plaintiff had submitted evidence indicating that "a non-negligent inspection by defendant would have discovered any damage caused" to the chair by a prior patron. 259 A.D.2d at 331, 687 N.Y.S.2d at 21. The same cannot be said in this case, because Delta delegated the duty to inspect and maintain the row of chairs to Service Force, an independent contractor, and, in general, "the employer of an independent contractor is not liable for injury caused to a third party by an act or omission of the independent contractor or its employees." Zelen v. City of Saratoga Springs, 187 A.D.2d 818, 819, 589 N.Y.S.2d 709, 711 (3d Dep't 1992) (citations omitted).
There are certain exceptions to this rule, one of which is where the activities delegated to the independent contractor are "inherently dangerous." At oral argument, Flowers argued that this exception applies in this case. The "inherently dangerous" activity exception, however, applies only where "the work involves a risk of harm inherent in the nature of the work itself. . . . Familiar examples of inherently dangerous activities are blasting, certain types of construction and working with high tension electric wires." Chainani ex rel. Chainani v. Bd. of Educ., 87 N.Y.2d 370, 381, 639 N.Y.S.2d 971, 975 (1995) (internal quotation marks and citations omitted). There is no risk of harm inherent in the nature of inspecting and maintaining chairs such that those activities are non-delegable. See id. ("the activity of transporting children by bus to and from school . . . is simply not an inherently dangerous activity"); Sage Enters., Inc. v. Wells Fargo Alarm Svcs., Inc., No. 94-CV-2100, 1996 WL 1057144, at *7 (E.D.N.Y. June 20, 1996) ("The work of a security guard is not so inherently dangerous as to impose a non-delegable duty to ensure proper performance on the employer."). In any event, Flowers has failed to demonstrate that a non-negligent inspection — either by Delta or by Service Force — would have discovered the alleged defect. As in Velez, Flowers has submitted no "evidence demonstrating that a reasonably prudent technician would have found the defect during a regularly scheduled inspection." 2001 WL 43609, at *4.
The other cases cited by Flowers to establish exclusive control — Kambat v. St. Francis Hospital, 89 N.Y.2d 489, 655 N.Y.S.2d 844 (1997), Pavon v. Rudin, 254 A.D.2d 143, 679 N.Y.S.2d 27 (1st Dep't 1998), and Hawkins v. Brooklyn Caledonian Hospital, 239 A.D.2d 549, 658 N.Y.S.2d 375 (2d Dep't 1997) — also are easily distinguished from this case. In Kambat, the negligent act in question was the failure to remove a laparotomy pad from the plaintiffs abdomen during surgery. The evidence was clear, however, that laparotomy pads were not accessible to patients, and that the plaintiff was unconscious during the surgery. Exclusive control therefore could not be seriously disputed. 89 N.Y.2d at 460, 655 N.Y.S.2d at 848. Pavon is distinguishable because the evidence in that case demonstrated that a defective door hinge caused the accident, and the hinge in question was not publicly accessible. There has been no similar showing in this case — indeed, Flowers has offered no evidence whatsoever suggesting the cause of the accident. Finally, in Hawkins, the defendant argued that he was not in exclusive control of the needle which injured the plaintiff because the plaintiff was moving at the time the needle was inserted; the court correctly noted that this fact was more appropriately directed to the "voluntary action" prong than the "exclusive control" prong. 239 A.D.2d at 552, 658 N.Y.S.2d at 378.
Flowers also cites Lopez v. Sears, Roebuck Co., 187 Misc.2d 165, 721 N.Y.S.2d 481 (Sup.Ct., Nassau County, 2001), but the court in that case appears to have misapplied the law. Lopez concerned a child who was injured on an escalator in a Sears store. The court held that res ipsa loquitur was applicable because the defendants had adduced no evidence suggesting that someone or something else, other than defendants, had caused the accident. 187 Misc.2d at 171, 721 N.Y.S.2d at 487. Yet theLopez defendants demonstrated unfettered public access to the escalator at issue, which, as noted above, "generally [means that] the owner's negligence cannot be inferred." St. Paul Fire, 907 F.2d at 303 (citing De Witt Properties v. City of N.Y., 44 N.Y.2d 417, 426, 406 N.Y.S.2d 16, 27 (1978)). Furthermore, the court wrongly placed the burden on the defendants to demonstrate that someone or something else caused the accident; however, the burden is on the plaintiff to demonstrate that res ipsa loquitur applies. See, e.g., Kambat, 89 N Y2d at 494, 655 N.Y.S.2d at 846. Flowers's reliance on Lopez therefore is misplaced.
For these reasons, Flowers cannot establish that the chairs were in Delta's exclusive control, and therefore res ipsa loquitur cannot apply in this case.
B. Plaintiff's own actions contributed to his injuries
In order to invoke the res ipsa loquitur doctrine, a plaintiff must demonstrate that the event in question was not due to any voluntary action or contribution on the part of the plaintiff. See St. Paul Fire, 907 F.2d at 302 (citing Dermatossian, 67 N.Y.2d at 226, 501 N.Y.S.2d at 788); Kambat, 89 N.Y.2d at 494, 655 N.Y.S.2d at 846; Ebanks, 709 N.Y.2d at 623, 518 N.Y.S.2d at 777. Delta argues, in passing, that Flowers contributed to his accident by sitting down "hard" on the row of chairs, thereby defeating the application of res ipsa loquitur. (See Reply Mem. of Law at 4.) It appears that Flowers has, in fact, failed to prove that the accident was not caused, at least in part, by Flowers's own actions. Therefore, res ipsa loquitur cannot apply.
Since New York became a comparative negligence state, some courts have questioned whether this res ipsa loquitur prong should still be applied. See, e.g., Dermatossian, 67 N.Y.2d at 227 n. 5, 501 N.Y.S.2d at 788 n. 5 ("It has been suggested that the advent of comparative fault logically eliminates th[is] requirement, since comparative fault, by its nature, converts the plaintiffs contributing fault from its traditional function of barring liability into one of merely reducing damages. We express no view on this question.") (citation omitted); see also Hawkins, 239 A.D.2d at 552, 658 N.Y.S.2d at 378 (raising, but not deciding, this issue); Davis v. Vantage Homes, Inc., 146 A.D.2d 879, 880 n. 2, 536 N.Y.S.2d 864, 865 n. 2 (3d Dep't 1989) (same). New York courts, however, continue to cite this prong of the res ipsa loquitur analysis, see, e.g., Kambat, 89 N.Y.2d at 494, 655 N.Y.S.2d at 846, and also continue to rely on this prong in deciding whether res ipsa loquitur applies, see, e.g., Lee v. Bonavita, 216 A.D.2d 8, 627 N.Y.S.2d 373, 374 (1st Dep't 1995) ( res ipsa loquitur inapplicable because plaintiff failed to establish that accident was not due to any voluntary contribution by plaintiff).
Flowers, a heavyset man who weighed almost 300 pounds at the time of the accident, admittedly sat down hard (in his words, he "bopped down") on the row of chairs immediately before it flipped over. (See Tr. at 20.) Furthermore, the evidence suggests that neither Delta nor Service Force received any prior complaints about the row of chairs, nor had anyone reported any accident similar to Flowers's, despite the fact that the row of chairs is located in an area of the LaGuardia terminal open to and accessible by the general public. Given these facts, the Court cannot conclude that Flowers's own actions did not contribute to the accident. It is fair to infer that, had Flowers not "bopped down" on the row of chairs but instead sat down in a typical fashion, the row of chairs would not have flipped over. This inference precludes the application of res ipsa loquitur unless Flowers can demonstrate that his actions did not cause or contribute to the accident. See, e.g., Cacciolo v. Port Auth. of N.Y., 186 A.D.2d 528, 529, 588 N.Y.S.2d 350, 352 (2d Dep't 1992) ( res ipsa loquitur inapplicable where evidence permitted inference that plaintiff was at least partially responsible for accident).
The facts in this case are similar to those in Ventola v. New York, 38 Misc.2d 321, 237 N.Y.S.2d 385 (Ct.Cl. 1963). There, a heavyset woman (who was approximately 5'8" tall, weighed approximately 215 pounds, and wore a size 40 dress), sat down in an awkward fashion on a folding chair at a state park. Id. at 323, 237 N.Y.S.2d at 387; see also Stegmiller v. New York, 44 Misc.2d 529, 532, 253 N.Y.S.2d 1012, 1015 (Ct.Cl. 1964) (describing plaintiff in Ventola as having sat down in an "abnormal manner"). The plaintiff was injured when the folding chair collapsed, and she commenced an action against the state for negligence. The New York Court of Claims rejected plaintiffs attempt to invoke the res ipsa loquitur doctrine, because "[t]he acts of the claimant contributed to cause the incident." Ventola, 38 Misc.2d at 342, 237 N.Y.S.2d at 389.
Other New York cases, though not involving collapsing chairs, have found res ipsa loquitur inapplicable where the plaintiff failed to demonstrate that the accident could not be attributed to the plaintiffs conduct. In Braithwaite v. Equitable Life Assurance Society, for instance, the plaintiff injured his ankle when he stepped onto an escalator in a building owned by the defendants. 232 A.D.2d 352, 353, 648 N.Y.S.2d 628, 629 (2d Dep't 1996). Although the plaintiff asserted that the escalator "jerked" and twice reversed directions in a short period of time, the plaintiff also testified that he "mis-stepped" when getting onto the escalator. The Appellate Division stated that the case "could not be submitted to a jury on the theory of res ipsa loquitur . . . because the injured plaintiff himself could have been solely responsible for his own injury when he `mis-stepped' onto the elevator."Id. at 354, 648 N.Y.S.2d at 629-30. See also Greer v. Long Island Lighting Co., 259 A.D.2d 663, 664, 687 N.Y.S.2d 394, 394-95 (2d Dep't 1999) (plaintiff injured by high voltage surge could not rely on res ipsa loquitur because "[t]here was evidence that the plaintiff contributed to his own injury"); Lee v. Bonavita, 216 A.D.2d 8, 627 N.Y.S.2d 373, 374 (1st Dep't 1995) (plaintiff struck in eye by nail after stopping to watch construction at an unoccupied office building; trial court correctly denied plaintiffs motion for summary judgment under res ipsa loquitur theory, because plaintiff had chosen to stand in "close proximity to a construction site"); Di Santo v. County of Westchester, 210 A.D.2d 628, 629, 619 N.Y.S.2d 852, 854 (3d Dep't 1994) (plaintiff slipped and fell on tarmac at airport; res ipsa loquitur inapplicable because plaintiff was not looking down to see where she was walking, and hence plaintiff could not establish "that her actions did not contribute" to her fall).
Because Flowers has failed to demonstrate that his actions did not contribute to the accident, res ipsa loquitur is inapplicable.
C. Flowers has failed to show that Delta had actual or constructive notice of a defect
Although the res ipsa loquitur doctrine is inapplicable to the facts of this case, summary judgment is not automatically warranted. Instead, Delta must demonstrate that Flowers cannot succeed in this case on a traditional negligence theory. Delta has satisfied its burden.
For Delta to be held liable for a defective condition in the row of chairs, Flowers must prove that Delta either created the defect or had actual or constructive notice of the defect. See e.g., Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837-38, 501 N.Y.S.2d 646, 647 (1986); Lombardo v. Island Grill Diner, 276 A.D.2d 532, 716 N.Y.S.2d 578 (2d Dep't 2000); O'Brien v. Trs. of Troy Annual Conference of United Methodist Church, 257 A.D.2d 954, 956, 684 N.Y.S.2d 328, 330 (3d Dep't 1999). Here, there is no evidence suggesting that Delta created a defect in the row of chairs, nor is there any evidence indicating that Delta had actual notice of a defect. Accordingly, Flowers can only succeed on a constructive notice theory.
Furthermore, it is unclear that there was any "defect" in the row of chairs which caused Flowers's injuries. Flowers has offered no evidence indicating what caused the row of chairs to flip over.
"To constitute constructive notice, a dangerous condition `must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it.'" Cobb v. Indus Ltd. P'ship, No. 98-CV-3549, 1999 WL 115441, at *3 (E.D.N.Y. Jan. 11, 1999) (quoting Gordon, 67 N.Y.2d at 837, 501 N.Y.S.2d at 647); accord Beinert, 1999 WL 890579, at *2; Ruggiero, 242 A.D.2d at 269, 661 N.Y.S.2d at 39; Collins v. Grand Union Co., 201 A.D.2d 852, 608 N.Y.S.2d 335, 336 (3d Dep't 1994). Even assuming that the misaligned support arm (1) was visible and apparent and (2) caused Flowers's injuries, Flowers has failed to provide any proof that the condition of the support arm existed for a sufficient length of time prior to the accident to have permitted Delta's employees to discover and remedy it. Indeed, Flowers himself did not notice the purported "defect" in the row of chairs before he sat down, and there were no complaints about the chairs prior to Flowers's accident. Thus, there is no reason to believe that the support arm had not been damaged by another Delta passenger or an accidental impact with a piece of luggage moments before Flowers sat down, and any other conclusion "would amount to the sort of speculation in which courts cannot engage." Cobb, 1999 WL 115441, at *3; accord Gordon, 67 N.Y.2d at 838, 501 N.Y.S.2d at 647 ("Thus, on the evidence presented, the piece of paper that caused plaintiffs fall could have been deposited there only minutes or seconds before the accident and any other conclusion would be pure speculation."); Collins, 201 A.D.2d at 853, 608 N.Y.S.2d at 336 ("[P]laintiffs decedent failed to offer any proof as to how long the substance had been on the floor prior to her fall, and a finding that the substance had been on the floor for any appreciable length of time would be based upon pure speculation."); Monje v. Wegman's Enters., 192 A.D.2d 1133, 596 N.Y.S.2d 273, 274 (4th Dep't 1993) ("Plaintiff was unable to demonstrate how long the substance had been on the floor before she fell. Any finding that it had been on the floor for any appreciable length of time would be mere speculation.").
In fact, it is entirely possible that the support arm was not misaligned when Flowers sat down. Flowers's photographs are the only evidence showing the support arm rotated from its original position, but these photographs were taken after the chairs tipped over. It is not inconceivable that the support arm moved from its original position as a result of this incident.
CONCLUSION
"Proof of negligence in the air, so to speak, will not do." Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 341 (1928) (citations omitted). At best, that is all that is presented here. For this reason, and the reasons set forth above, Delta's motion for summary judgment is granted.
SO ORDERED.