Opinion
November 2, 1967
Judgment entered on March 12, 1965, affirmed, with $50 costs and disbursements to respondent. We arrive at the conclusion that the verdict of the jury in favor of the defendant should be affirmed despite that fact that it may have been influenced by instructions that we deem erroneous. In our opinion the plaintiff failed to establish any negligence on the part of defendant and the complaint should have been dismissed. Plaintiff fell on a mat placed outside the revolving door of a hotel. No defect in the mat was claimed. Plaintiff's contention was that the placing of the mat there was in itself negligence and sought to substantiate the claim by expert testimony. Expert testimony is unnecessary when the matter is within the experience and observation of the ordinary juryman ( Meiselman v. Crown Hghts Hosp., 285 N.Y. 389, 396) and its acceptance in such instances can be error ( Ferguson v. Hubbell, 97 N.Y. 507; Schneider v. Second Ave. R.R. Co., 133 N.Y. 583; see the extensive discussion in Finn v Cassidy, 165 N.Y. 584). The dissenting opinion describes the mat as perforated. The mat was not produced in court, and though there was evidence that the mat was perforated, there was no proof of the size of the perforations and nothing to show that these were potentially dangerous. In fact, no claim is made that the mat itself was either defective or a dangerous instrumentality. Nor does plaintiff claim that the mat itself was in any way unusual but only that its being placed outside the revolving door was negligent or, in other words, that the mat was an obstruction. As such, custom or usage has nothing to do with the case. The issue is whether the obstruction constituted such a hazard that prudent persons would recognize it as a potential source of injury. Whether others usually do or do not use the same appliance is not controlling. If the mat constituted an actionable obstruction, the fact that others similarly maintained the sidewalk would not excuse the defendant, nor should the fact that others abstain impose liability. The cases cited in the dissenting opinion do not hold to the contrary. In the Gitlin case ( 62 N.Y. 553), the mat was inside the door and so placed that the opening of the door caused the mat to bunch up and rise from the floor. In the Hill case ( 284 N.Y. 656), there were two mats, with a small space between them; the second mat was rumpled and this fact, plus the space, constituted a trap. The Mayer case ( 307 N.Y. 559) does not involve a mat and there is no discussion in regard to one. In the Gluck case ( 257 App. Div. 658), the negligence was in not providing a mat at the place where plaintiff fell; and in the Baker case ( 265 App. Div. 41), the use of a mat was held not to be negligence but the particular mat was defective and the defect caused the accident. In the instant case, neither the height nor the nature of the obstruction was sufficient to raise an issue as to its being an object of danger, and the complaint should have been dismissed.
On October 22, 1960, at about 11:30 P.M., plaintiff, then 69, exiting through a revolving door leading into Fifth Avenue, caught the heel of her shoe in a perforated metal and rubber mat, and was forcibly precipitated to the sidewalk, sustaining serious and permanent injuries. The jury trial was limited to the issue of liability. The mat was about an inch thick, immediately in front of the revolving door, bore the name of and was placed there by defendant. The occurrence is conceded. Defendant rested at the close of plaintiff's case. Plaintiff's proof included testimony of an expert that it is customary practice and usage not to place a perforated grill-type mat in front of the revolving door of public buildings. The court unanimously concludes it was error in the circumstances to charge that plaintiff was required to establish actual or constructive notice of the condition. The majority, however, hold there is no evidence of negligence and that the expert's testimony is of no probative force on the issue of liability, hence the charge was erroneous but not prejudicial since the complaint should have been dismissed. I disagree. The charge in this respect was originally as follows: "Notice to the defendant may be either actual or constructive. Actual notice is not claimed in this case. Constructive notices exists when the dangerous defective condition had existed for such length of time that the agents of the defendant charged with the duty of keeping the exits in good condition would have known of the existence of this dangerous condition if they had exercised reasonable care in discharging their duty. Proof of notice or lack of it is vital to the determination of this case." The substance of this charge was reiterated in the following language: "I think what you really wanted from me is now in summary, if you find first that the condition was dangerous and defective, second that the defendant had constructive notice of such condition, third that such condition was the cause of the accident, and fourth that the plaintiff was not negligent in respect which contributed to her fall even in the slightest degree, then and only then may you find for the palintiff. If your answer is in the negative to anyone of these conditions then your verdict must be in favor of the defendant. "Does that answer your questions? The Foreman: Thank you, sir. The Court: You may retire." Plaintiff took exception to that further charge in the following manner: "May I state it is the plaintiff's claim in this case that it is not a question of notice but that this condition was actually created by the Hotel Pierre, and that a question of notice is not present here. The Court: That is your sole exception?" Plaintiff's proof established an issue as to liability. The revolving door leads to the sidewalk. Its floor is on the same level as the sidewalk. Defendant interposed a one-inch elevation, consisting of a loose mat, between the revolving door and the sidewalk. The perforations of the mat were large enough to catch and engage the heel of plaintiff's medium-size lady's shoe so firmly as to remove it from plaintiff's foot as she fell. There is no evidence that the mat was required or necessary because of weather conditions. Apart from the testimony of the expert, the proof presented an issue on liability. ( Gitlin v. David Storch, Inc., 262 N.Y. 553; Hill v. Morris White Props. Corp., 284 N.Y. 656; Mayer v. Temple Props., 307 N.Y. 559, 565; Mayer v. Cramer, 239 App. Div. 408; Gluck v. Sunapee Realty Corp., 257 App. Div. 658; Baker v. Seneca Hotel Corp, 265 App. Div. 41.) Indisputably, there are matters within the ken of laymen not within the ambit of expert testimony. Whether enough has been adduced to create an issue on liability is not within the scope of expert testimony. However, here plaintiff seeks to rely on a standard of care established by custom and usage. Proof of custom and usage is clearly within the scope of expert testimony. ( Shannahan v. Empire Eng. Corp., 204 N.Y. 543, 550; Garthe v. Ruppert, 264 N.Y. 290, 296; Levine v. Blaine Co., 273 N.Y. 386, 389; Regan v. Eight Twenty Fifth Corp., 287 N.Y. 179; Meyer v. West End Equities, 13 A.D.2d 938, revd. 12 N.Y.2d 698; Berman v. H.J. Enterprises, 13 A.D.2d 199, 201, 202; Reisner v. New York Kosher Provisions, 25 A.D.2d 511.) It is for the jury under appropriate instructions to decide the effect of the expert evidence. (See Walls v. Bailey, 49 N.Y. 464. The judgment should be reversed by reason of the error aforesaid and a new trial directed.