Summary
granting summary judgment on negligent maintenance claim, finding that "Plaintiff does not proffer evidence of a specific defect, much less that a reasonable inspection would have revealed such a defect."
Summary of this case from Baez v. Delta Airlines, Inc.Opinion
No. 99 Civ. 4780 (LTS)(KNF)
August 27, 2002
MEMORANDUM OPINION AND ORDER
This negligence case is on the eve of trial. It has taken a long and tortuous road to this venue. In a series of prior decisions, familiarity with which is assumed, the Court has had occasion to address the scope and viability in this case of the single cause of action pleaded in the complaint, as amended, and of a number of principles of liability posited by Plaintiff's counsel from time to time in reaction to motion practice and/or adverse decisions. Now, following denial of a motion to amend the complaint and of a motion for reconsideration of that decision, decisions on motions for summary judgment, a decision granting Defendants' subsequent motion in limine attacking the sufficiency of a substantial portion of Plaintiff's expert proffer as insufficient to meet the requirements of Rule 702 of the Federal Rules of Evidence, the preparation of a Final Joint Pretrial Statement and the submission of Requests to Charge, the remaining Defendants have filed trial memoranda urging the Court to find that the prior events in this case have resulted in the elimination or preclusion of any claims as to which there would be an issue of material fact for trial, and to grant judgment in their favor as a matter of law. Plaintiffs counsel, continuing to take issue with the Court's prior rulings, also urges avoidance of trial unless the Court determines to withdraw some or all of its prior decisions.
Memorandum Order dated April 17, 2001, denying Plaintiff's motion to amend the complaint ("April 17, 2001 Order"); Memorandum Order dated July 2, 2001, denying Plaintiff's motion to reconsider the Court's April 17, 2001 Order ("July 2, 2001 Order); Opinion and Order dated March 29, 2002, granting in part and denying part Defendants' motions for summary judgment ("March 29, 2002 Opinion"); Memorandum Order dated April 19, 2002 denying Plaintiff's motion to reconsider the Court's March 29, 2002 Opinion ("April 19, 2002 Order") and Memorandum Opinion and Order dated May 23, 2002, granting in part and denying part Defendant's motion to exclude testimony of Plaintiff's expert ("May 23, 2002 Order").
For the following reasons, Defendants' renewed motion for summary judgment as to Plaintiffs' claims is granted. Defendants' motions inter se regarding their cross-claims and third-party claims for indemnity are denied. In light of the disposition of the summary judgment motions as to Plaintiff's claims, Plaintiff's pending motion in liming regarding certain medical evidence is denied as moot.
DISCUSSION
Background
Plaintiff Rose Stone asserts that, on May 14, 1999, as she was entering a Courtyard Marriott hotel on Lexington Avenue in Manhattan, she was knocked down and injured when a particular set of automatic doors closed prematurely and struck her. Her original complaint, filed in New York State Supreme Court, named Courtyard by Marriot as defendant and alleged that Courtyard by Marriot was the entity managing the hotel. The original complaint described the event in general terms, alleging that Plaintiff was "caused to be precipitated to the ground while entering the . . . hotel by reason of a dangerous, defective and unsafe condition of the hotel in general, and certain front doors in particular," and concluded with the assertion that "[a]ll of the foregoing was as a result of the negligence of the defendant." Verified Complaint, ¶¶ 7, 8. In July 1999, a little more than three weeks after the case was removed to this Court on diversity grounds, an Amended Complaint was filed, naming 866 3rd Next Generation LLC ("866"), the owner and operator of the hotel, and Courtyard Management Corp. ("Courtyard"), the manager of the hotel, as party defendants. The description of the incident remained the same, as did the iteration of the legal basis of the claim asserted — "[a]ll of the foregoing was a result of the negligence of the defendants." Amended Verified Complaint, ¶¶ 8, 9. Second and Third Amended Complaints were filed in the first quarter of the year 2000, adding Lehrer McGovern Bovis, Inc. ("LMB"), the general contractor for the construction of the hotel, JEM Architectural Inc. ("JEM"), a subcontractor that was concerned with construction of entrance and exit areas for the hotel, ASR Electrical Contractors, a subcontractor hired by JEM Architectural Inc. to perform electrical services, NT Dor-O-Matic New York, Inc. ("Dor-O-Matic"), the company that installed the automatic doors in question and Forest Electric Corp., the company that installed automatic door equipment on the doors in question, as parties defendant.
The hotel owned by 866 and managed by Courtyard conducted business as "Courtyard by Marriot." The amended complaints do not name Courtyard by Marriot as a party defendant.
Defendants Forest Electrical Corp. and ASR Electrical Contractors were discontinued from the case on or about December 18, 2000.
In the Second and Third Amended Complaints, the description of the underlying incident and the iteration of the legal basis of the claim asserted — "[a]ll of the foregoing was a result of the negligence of the defendants" remained the same. See Second Amended Complaint, ¶ 21; Third Amended Complaint, ¶ 31. Later that year, and early in the following year, Plaintiff filed and served documents denominated as a "Supplement to Third Amended Complaint" and "Notice of Statutory Claim" respectively, in which Plaintiff purported to assert claims against Defendants for breach of express and implied warranty. Plaintiff also served and filed a document denominated as a "Notice of Claims" alleging that the subject hotel doors, the motion detector, the presence sensor and safety beam were "dangerous, defective and unsafe" and that the time delay was "not properly set, malfunctioned or did not exist."
In March 2001, a month after the final deadline set by the Court in January of that year for applications to amend pleadings, a little more than a month before the fact and expert discovery deadlines previously set by the Court and just three months before the scheduled final pre-trial conference date (essentially a trial-ready date), Plaintiff moved to amend further her complaint to assert a claim against unspecified Defendants for breach of express warranty. The Court denied the motion, which was vigorously opposed by Defendants, as untimely. Plaintiff moved to "reconsider and/or reargue and/or clarify" that decision, asserting that leave was wrongly denied and seeking "clarification" that common-law strict liability and implied warranty claims — never before mentioned in any pleading in the case — were "still viable." This application was also, needless to say, opposed by Defendants. In the July 2, 2001 Order, the Court denied Plaintiff's motion for reconsideration and confirmed that the case would proceed on the cause of action pleaded in the Third Amended Complaint. See July 2, 2001 Order.
In the meantime, all Defendants moved for, inter alia, summary judgment as to Plaintiff's claims against them. Plaintiff cross-moved for summary judgment. In her opposition to the motions, Plaintiff failed to controvert the factual assertions of Defendants LMB and JEM (see March 29, 2002 Opinion), disclaimed any basis other than vicarious liability for her negligence claims against 866 and Courtyard (see Plaintiff's Memorandum of Law, dated May 3, 2001, at 3-4), relied on conclusory assertions in as-then-unchallenged expert reports for the proposition that the underlying incident was caused by negligent maintenance of the automatic doors, and asserted for the first time an intention to invoke res ipsa loquitur, a doctrine permitting a fact finder to infer negligence under appropriate circumstances, in aid of her negligence claim as against 866 and Courtyard. She also asserted, in a brief filed in response to the motions of Defendants LMB and Dor-O-Matic for summary judgment, that her complaint plead sufficiently strict liability and implied warranty claims and that material issues of fact precluded summary judgment in Defendants' favor on those claims.
Because Plaintiff failed to submit a Rule 56.1 Statement, as required by the Local Rules, the Court treated Plaintiff's motion as oppostion to Defendants' motions for summary judgment.
In connection with that motion, Plaintiff specifically disclaimed invocation of the doctrine as against Dor-O-Matic. See Plaintiff's Memorandum of Law, dated May 3, 2001 at 7.
The Court's July 2, 2001 Order denying Plaintiff's motion for reconsideration having put to rest the question of whether Plaintiff had ever pleaded this case as something other than one in negligence, the Court addressed the summary judgment motions in the March 29, 2002 Opinion. For the reasons set forth therein, LMB and JEM were granted summary judgment as to Plaintiff's claims against them, Plaintiff's motion for summary judgment was denied, and summary judgment was granted in favor of Defendants 866 and Courtyard to the extent Plaintiff sought to rely on res ipsa loquitur as against those parties. The Court found that Plaintiff had failed to establish the predicates for a res ipsa charge. Specifically, she failed to proffer evidence that the instrumentality was in the exclusive control of the Defendants as against whom she wished to invoke the doctrine — she in fact asserted that the doctrine would not appropriately be invoked against Dor-O-Matic, the repair contractor, and the Court noted evidence that the doors were traversed by many hotel patrons every day. As to the remaining negligence claims as against 866, Courtyard and Dor-O-Matic, the Court found no issue for trial to the extent Plaintiff claimed Defendants had actual prior notice of the defect claimed to have caused the accident, but that there was a fact issue as to constructive notice of a defect because there was evidence of prior service calls concerning other issues arising in connection with the doors and/or a nearby set of similar doors. In reaching the conclusion that the issue of constructive notice (and, of course, the issues of whether there was any defect at all, the reasonableness of Defendants' conduct in relation to such defect, and whether such defect caused Plaintiff's injuries), the Court also noted that Plaintiff had proffered expert reports positing that the injuries were caused by negligent maintenance and that Dor-O-Matic personnel had failed properly to test the subject doors at the time of installation. Plaintiff moved for reconsideration, arguing that she would be happy to have the res ipsa doctrine applied against Dor-O-Matic as well as against 866 and Courtyard. That motion was denied and the case appeared ready for trial.
Defendants then made a timely motion in limine, based on Rule 702 of the Federal Rules of Civil Procedure, to exclude the reports of Plaintiff's expert. For the reasons set forth in the Court's May 23 2002 Order, the motion was granted as to the expert's causation opinions and denied as to the portion of the expert's proffer that asserted that Dor-O-Matic's personnel improperly tested the doors at the time of installation and were not aware of relevant safety standards.
The Instant Motions
The instant motions of 866, Courtyard and Dor-O-Matic (the only Defendants as against which Plaintiff has outstanding claims) argue that, with the Plaintiff's claims and evidence thus narrowed, there are no triable issues of fact as against them and that they are entitled to summary judgment as against Plaintiff. Specifically, Defendants argue that where, as here, Plaintiff does not contend that the repair contractor had any responsibility for ongoing oversight of maintenance and no direct liability claim is made out against the parties sought to be held vicariously liable for negligence with respect to a defect in the subject mechanism, the contractor can only be held to have been on constructive notice of the claimed defect if there is evidence that a reasonable inspection would have revealed the defect. There being no such evidence here, Defendants argue, they are entitled to judgment as a matter of law.
Plaintiffs opposition, typically, focuses on quarreling with the Court's prior rulings and offers little by way of germane analysis. Notwithstanding the Court's prior opinions on these issues, Plaintiff asserts she can rely at trial on the doctrine of res ispa loquitur, and that she will press claims based on breach of warranty and strict liability. As explained above, Plaintiff has pleaded and litigated this case as sounding in negligence. Plaintiff failed timely or properly to plead claims concerning breach of express or implied warranty, and strict liability, and failed to proffer evidence sufficient to establish in response to a summary judgment motion, the predicate for a res ipsa loquitur charge. Plaintiff also asserts that she can make out a prima facie claim for constructive notice "because the court has said that she could." Plaintiff's Memorandum of Law Establishing That Plaintiff Will Make Out A Prima Facie Case at Trial, at 2. Plaintiff relies on the Court's finding in the March 29, 2002 Opinion that there was no evidence that Defendants had actual notice of any defect in the automatic doors, but that there was a fact question as to whether Defendants had constructive notice of a defect, given that Plaintiff's expert had mined that the doors were negligently maintained and improperly tested.
The record before the Court at the time of the March 29, 2002 Opinion was issued included two reports by Plaintiff's expert witness in which the witness asserted that the doors had not been maintained properly. Plaintiff's expert opined that the proximate cause of Plaintiff's accident was "the failure of the door installers and/or whoever tested the door to insure that all of the safety mechanisms were adjusted and operated to the [applicable] standards." Krongelb-Heimer, Oct. 17, 2000 Report. Subsequent to the issuance of the March 29, 2002 Opinion, Defendants successfully challenged the admissibility of the maintenance-related causation opinions in Plaintiff's expert reports. The evidence cited in the March 29, 2002 Opinion thus is no longer in the record.
Furthermore, in order to establish that Defendants had constructive notice of a defect in the automatic doors, Plaintiff must present evidence in the circumstances of this case that a reasonable inspection of the doors would have given Defendants notice of a defect in the automatic doors. See Velez v. Sebco Laundry Systems, Inc., 178 F. Supp.2d 336, 340-341 (S.D.N.Y. 2001) (summary judgment granted where there was no evidence showing that a reasonably prudent technician would have discovered a defect); Albergo v. Deer Park Meat Farms, Inc., 526 N.Y.S.2d 580, 581 (2d Dep't 1988) (constructive notice requires that reasonable inspection would have uncovered a defect); Buria v. Rosedale Engineering Corp., et al., 184 N.Y.S.2d 395, 397 (1st Dep't 1959) (negligence is not established unless it is demonstrated that proper testing would have disclosed the mechanism to have been defective). As set forth in the Court's March 29, 2002 Opinion, there is no evidence that Defendants received reports or any other information concerning a malfunction leading to premature closing of the automatic doors.
In addition, the Court found that Plaintiff's expert had insufficient basis under Federal Rule of Evidence 702 that the doors were negligently maintained. The surviving element of Plaintiff's expert proffer asserts only that the subject doors were tested improperly at installation and that Defendant Dor-O-Matic's employee is not aware of the relevant safety standards. Plaintiff does not proffer evidence of a specific defect, much less that a reasonable inspection would have revealed such a defect. Plaintiff acknowledges in her pre-trial memorandum that she has no further evidence to proffer. See Plaintiff's Memorandum of Law Establishing That Plaintiff Will Make Out a Prima Facie Case, at 2. Under these circumstances, Plaintiff cannot make out the constructive notice element of her negligence claim and the remaining Defendants — 866, Courtyard and Dor-O-Matic — are entitled to judgment as a matter of law. See Buria, at 488 (negligence is not established if proper inspection could have shown a defect, proof must be that inspection would have disclosed a defect).
Given all of the foregoing, the Court finds that Plaintiff has no evidence to support a prima facie case of negligence. Accordingly, Plaintiff's case is dismissed.
Defendants' Cross-Claims
Defendants also seek summary judgment concerning their indemnity rights and obligations inter se. Insofar as there appear to be disputed issues of fact, including as to the intended scope and coverage of Dor-O-Matic's contractual indemnity agreement, the motions are denied without prejudice to renewal following settlement efforts under the supervision of Magistrate Judge Fox. Defendants shall contact Judge Fox's chambers promptly to schedule a conference.
CONCLUSION
In light of the foregoing, Defendants' renewed motion for summary judgment is granted as against the Plaintiff. There being no just reason for delay, partial judgment shall be entered in favor of Defendants and against Plaintiff. Fed.R.Civ.P. 54(b). Defendants' motions are denied insofar as they are directed to their indemnity rights and obligations inter se. Defendants shall contact Magistrate Judge Fox's chambers promptly to secure a settlement conference. Plaintiff's motion in limine, filed June 11, 2002, is denied as moot.
SO ORDERED.