Opinion
No. 01 Civ. 2394 (LTS) (FM)
November 22, 2002
Attorneys for Defendants: Hoey, King, Toker Epstein, By: Richard C. Prezio, Esq., New York, New York
Attorneys for Plaintiff: Mitchell Troyetsky, Esq., New York, New York
OPINION AND ORDER
In this negligence action, Plaintiff Virginia R. Stanton ("Plaintiff") alleges that she fell while attempting to ascend an escalator with her luggage at the Southgate Tower Hotel ("Hotel") in New York City. Defendants Manhattan East Suite Hotels, Chelsea Tower Company, Patrick Denihan, Donald Denihan, and MESH Associates ("Defendants") have moved for summary judgment dismissing Plaintiff's claim, arguing that they had no duty to provide supervision or assistance to Plaintiff, and that provision of an escalator as a means of travel from an entrance lobby area to an upper reception area did not constitute a dangerous condition.
The Court has considered thoroughly all submissions and arguments related to this motion. For the following reasons, the Defendant's motion is granted.
The Court has jurisdiction of this diversity case pursuant to 28 U.S.C.A. § 1332 (West 1993 Supp. 2002).
FACTS
The following material facts are not in dispute unless otherwise noted. Plaintiff alleges generally that Defendants own and operate the Hotel. (Joint Preliminary Pre-trial Statement, "Pre-Trial Statement" § I.)
For purposes of this motion, the Court has taken as true the assertion that all Defendants were responsible for the operation of the Hotel. In light of the Court's resolution of this motion, it is not necessary for the Court to make findings with respect to each Defendant's relationship to and/or responsibility for Hotel ownership or operation.
On March 24, 1998, Plaintiff, a seventy-seven year old woman, was en route to France from her residence in California and had registered to stay at the Hotel during a lay-over. (Deposition of Virginia Stanton, "Stanton Deposition," Def's Ex. E, at 15-16, 18-19; Pre-Trial Statement, § I.) Plaintiff asserts that, when she arrived at the Hotel, there were no employees outside the Seventh Avenue entrance or inside the ground floor foyer to help her with her luggage, a "22-inch wheelie," and that there was no means of requesting assistance. (Stanton Deposition at 20-28; Plaintiffs Statement Pursuant to Rule 56.1 ¶ 2.) To check into the Hotel, guests using the Hotel's Seventh Avenue entrance must climb a staircase or take an escalator to the second floor. (Pre-Trial Statement, § II.) There is no elevator between the ground floor and the second floor. (Stanton Deposition, at 29; Pre-Trial Statement, § II.) Plaintiff wheeled her luggage into the ground floor door and ascended the escalator to the second floor. (Stanton Deposition, at 26-28.)
Plaintiff asserts, that as she began to ascend the escalator, her luggage did not follow. (Id. at 34.) Maintaining a grip on her luggage, she turned around to see what was causing the "wheelie" to remain behind her. (Id.) In so doing, she lost her balance and fell, headfirst, towards the bottom of the escalator. Plaintiff alleges that she suffered a back injury as a result. (Id.)
DISCUSSION
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that 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 (1986) (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. Gallo v. Prudential Residential Services. Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994); 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).
The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact."Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. at 248.
If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(c); see also Legal Aid Society v. City of New York, 114 F. Supp.2d 204, 213 (S.D.N.Y. 2000). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold Inc., 369 U.S. 654 (1962)); see also Gallo, 22 F.3d at 1223. With respect to the issues on which summary judgment is sought, if there is any evidence in the record, from any source, from which a reasonable inference could be drawn in favor of the nonmoving party as to a material fact issue, summary judgment is improper. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
Negligence Claims
In an action for negligence, to defeat a motion for summary judgment "the plaintiff must introduce adequate evidence on each element of negligence sufficient to support a favorable jury verdict [, and] . . . in cases where proof of any essential element falls short the case should go no further." Basso v. Miller, 40 N.Y.2d 233, 242, 352 N.E.2d 868, 873, 386 N.Y.S.2d 564, 569 (1976). To establish a prima facie case of negligence under New York law, a claimant must show that: (1) the defendant owed the plaintiff a cognizable duty of care; (2) the defendant breached that duty; and (3) the plaintiff suffered damage as the proximate result of that breach. Stagl v. Delta Airlines. Inc., 52 F.3d 463, 467 (2d Cir. 1995).
Duty of Care
Plaintiff asserts that Defendants had a general duty to safeguard guests who sought to check into the Hotel and that Defendants' breach of this duty caused her injury. Specifically, Plaintiff alleges that Defendants failed to provide assistance with her luggage, failed to prevent injury from a potentially dangerous condition, and failed to provide adequate supervision in the entranceway or for a special structure or device on the premises.
"A landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk." Basso v. Miller, 40 N.Y.2d at 241, 352 N.E.2d at 872. Hotel owners have a duty to protect guests against injury arising from reasonably anticipated causes. Silver v. Sheraton-Smithtown Inn, 121 A.D.2d 711, 712, 504 N.Y.S.2d 56, 57 (2d Dep't 1986). The owner of a hotel, however, is not an insurer of the safety of its patrons. Rather, it must use reasonable care to protect patrons from reasonably anticipated dangers. Silver v. Sheraton, 121 A.D. at 712, 504 N.Y.S.2d at 57; "Prophetic vision" is not required, only reasonable foresight is necessary. Gattner v. Coliseum Exhibition Corp., 17 A.D.2d 44, 47, 230 N.Y.S.2d 340, 342 (3d Dep't 1962) (citing Cartee v. Saks Fifth Ave., 277 A.D. 606 (1st Dep't 1951)). Accordingly, a hotel proprietor has no duty to protect against an occurrence that could not reasonably be expected, anticipated, or prevented. Silver v. Sheraton-Smithtown Inn, 121 A.D.2d at 712, 504 N.Y.S.2d at 57; see also Lee v. Durow's Restaurant. Inc., 238 A.D.2d 384, 656 N.Y.S.2d 321 (2d Dep't 1997) (spontaneous and inappropriate behavior of one guest that caused injury to another guest was not foreseeable).
Generally, "the question of the existence and scope of an alleged tortfeasor's duty is, in the first instance, a legal issue for the court to resolve." Alberto Alfaro v. Wal-Mart Stores, Inc 210 F.3d 111, 114 (2nd Cir. 2000) (citing Waters v. New York City Housing Authority, 69 N.Y.2d 225, 229, 505 N.E.2d 922, 513 N.Y.S.2d 356 (1987)).
The Court must therefore determine the extent of Defendants' duty of care to Plaintiff under the circumstances of this case.
Whether the Hotel Had a Duty to Assist Plaintiff With Her Luggage
Plaintiff claims that Defendants were negligent in failing to assist her in transporting her luggage to the lobby. Generally, there is no duty to come to the aid of another. Zalenko v. Gimbel Bros. Inc., 158 Misc. 904, 287 N.Y.S. 134 (Sup.Ct. 1935) (store had no legal duty to help ill customer.) For example, in Alfaro v. Wal-mart Stores, Inc., 210 F.3d 111 (2d Cir. 2000), the court determined that a store had no duty to assist a wheelchair-bound customer in retrieving paint cans from high shelves. In so doing, the court recognized that the defendant store did not have a duty to assist simply because the plaintiff was a customer in the store. If a customer requires help from a proprietor, it is her obligation to seek help. Id. at 116. However, if a proprietor voluntarily assumes the duty to assist, he or she must act reasonably under the circumstances.Zalenko v. Gimbel Bros., 287 N.Y.S. at 135.
Here, the facts are not indicative of a duty to provide Plaintiff with assistance with her luggage. Plaintiff did not request assistance with her luggage and there is no evidence that Defendants voluntarily assumed a duty to help her in this manner and then acted unreasonably. There is nothing in the record to indicate that Defendants knew or should have known that Plaintiff required assistance ascending the escalator. Cf. Estate of Ruppel by Ruppel v. Hyeon Jin, Inc., 272 Ill. App.3d 527, 650 N.E.2d 645 (Ill.App. Ct 1995) (no duty to assist an intoxicated guest to ascend a hotel staircase absent any signs of impaired physical mobility that reasonably informed the defendant that the plaintiff could not safely ascend the stairs). Given the foregoing, there is no genuine issue of fact as to whether Defendants had a duty to help Plaintiff ascend the escalator.
Whether the Hotel Had a Duty to Protect Against Dangerous Conditions
Plaintiff further contends that Defendants provided inadequate supervision for both the entranceway and the escalator and that this created a dangerous condition for guests seeking to check in. A property owner is liable for injuries resulting from a dangerous condition upon the property if the owner created the dangerous condition or had actual or constructive notice of the same. Herbst v. Nevele Country Club. Inc., 251 A.D.2d 864, 674 N.Y.S.2d 497 (3d Dep't 1998); Hart v. Hercules Theatre Corp., 258 A.D. 537, 17 N.Y.S.2d 441 (2d Dep't 1940) (movie theater had no duty to provide a matron at the ladies bathroom absent prior notice that assaults on customers had occurred there). "Constructive notice requires a showing that the condition was visible and apparent and existed for a sufficient period of time prior to the accident to permit defendants to discover and remedy it." Herbst v. Nevele Country Club, Inc., 251 A.D.2d at 864, 674 N.Y.S.2d at 498. General awareness of a potentially dangerous condition is not enough to constitute notice of a particular condition. Id. The plaintiff must show that the defendant had actual or constructive notice of a hazardous condition. Brown v. Johnson, 241 A.D.2d 829, 660 N.Y.S.2d 476 (3d Dep't 1997) (plaintiff failed to show that the hotel knew of a water leak or that 10 minutes was enough time to establish that the hotel should have known of an ongoing danger from the leak). Failure by the plaintiff to establish notice of a hazardous condition will result in summary judgment for defendant. Brown v. Johnson, 660 N.Y.S.2d at 477; Ober v. Rye Town Hilton, 216 A.D. 374, 628 N.Y.S.2d 352 (2d Dep't 1995).
In Ober, the plaintiff could not demonstrate that the alleged defect in the cord on a hotel pay phone existed for a long enough period of time that knowledge could have been acquired in the exercise of reasonable care. Therefore, summary judgment was granted to the hotel.See Ober at 353.
Plaintiff relies on Stagl v. Delta Airlines, 52 F.3d 463 (2d Cir. 1995) in support of her argument. In that case, the plaintiff had been injured retrieving luggage from Delta's baggage claim area. In Stagl, the court found that Delta had a duty to safeguard passengers because it was a carrier with awareness of a specific hazardous condition. Id. at 466-468. In so finding, the Court determined that Delta had prior knowledge that other passengers had been injured by an ongoing "concentration of unruly travelers in the baggage" claim area. Furthermore, in Stagl the court found that the plaintiff had raised an issue of fact as to whether Delta had acted reasonably in fulfilling this duty.
A representative of Delta stated that similar accidents had occurred in the past. Also, the Stagl court cites a similar case from the 5th Circuit, which declared that "a carrier must be aware of the habits, customs, and practices followed by its passengers and with awareness of these hazards must take reasonably appropriate steps to avoid . . . the likely harm." Stagl at 468.
Here, Plaintiff has not offered evidence that any similar accident had occurred on this escalator in the past or that there were any unsafe conditions in the ground floor lobby. Plaintiff states that the area was adequately lit and that no other patrons impeded her progress. (Stanton Deposition, at 27-28.) Accordingly, Plaintiff has not established that there is a question of fact as to whether Defendants knew or should have known of an hazardous condition concerning patrons entering the hotel and ascending the escalator.
Whether the Hotel Had a Duty to Supervise the Ground Floor Foyer
Plaintiff also claims that Defendants were negligent in failing to provide doormen or attendants at the Hotel's entrance to ensure the safe entry for hotel guests. A business owner must ordinarily provide an adequate degree of general supervision. Schubart v. Hotel Astor. Inc., 168 Misc. 431, 435, 5 N.Y.S.2d 203, 206 (Sup.Ct. Kings Co. 1938) (business owner who collects a number of people on his premises must protect such people). Persons entering a place of business may expect more supervision than those entering a private building. Schubart v. Hotel Astor, S N.Y.S.2d at 207 (citing Greene v. Sibley. Lindsay Curr Co., 232 A.D. 53 (4th Dep't 1931)). However, the foregoing caselaw does not establish an inflexible duty to provide doormen or attendants.Id. at 434. Rather, a hotel should use "all reasonable care to protect guests from injuries reasonably to be anticipated." Cejka v. R.H. Macy Co., 162 N.Y.S.2d 207, 208 (1St Dep't 1957). Thus, if there is no unusual situation creating a foreseeable risk for guests entering or exiting, then there is no duty to furnish additional supervision.Schubart v. Hotel Astor, 5 N.Y.S.2d at 207; Cejka v. R.H. Macy Co., 162 N.Y.S.2d at 208 (no duty absent showing of general overcrowding, congestion at entrance, or unruliness of other patrons).
Plaintiff cites this argument from Greene in support of a heightened duty to the Defendants. The court in Greene held that a negligence case involving a store defendant was properly before the jury. On appeal, the Court of Appeals reversed and dismissed the complaint determining that the measure of the defendant's duty was reasonable care. See Greene v. Sibley. Lindsay Curr Co., 257 N.Y. 190; 177 N.E. 416 (1931).
Plaintiff relies on Schubart, but that case does not support her position. In Schubart, the court recognized that "the owner of an ordinary building, under ordinary circumstances, is not required to have a doorman present." Schubart, 168 Misc. at 434; 5 N.Y.S.2d at 206. In addition, theSchubart court determined that the circumstances of the case were unusual: plaintiff was injured by a revolving door during unusual crowding conditions that were foreseeable by the defendant. Finding that the incident occurred on the day of the Army-Notre Notre Dame football game and while an unusually large and raucous crowd of Army fans occupied the lobby at the hotel, the court held that the hotel defendant had a duty to provide a doorman to safeguard entering guests because the circumstances in the lobby that day were highly unusual. Id. at 208.
Plaintiffs testimony, upon which she relies in opposing the summary judgment motion, provides no evidence of any circumstances creating unusual conditions at the time of her accident. Nor has she proffered any evidence of any prior incidents similar to her fall or that Defendants were otherwise aware of the risk that the sort of incident described by Plaintiff could occur. Plaintiff has thus failed to proffer evidence sufficient to support a finding that reasonable care under the circumstances would have required Defendants to provide doormen or other attendants at the Seventh Avenue entrance to the Hotel to ensure guests safe ingress and egress.
Whether the Hotel's Escalator is a Special Structure Requiring Heightened Attention
In addition to arguing simple negligence, Plaintiff asserts that the escalator in the Hotel is a special device or structure requiring Defendants to provide an attendant to supervise the escalator or to post warnings concerning its use. Courts have recognized that technology may lead to the creation of some dangerous devices for use on a business premises that require a greater degree of precaution than others. Griffen v. De Forest Manice, 166 N.Y. 188, 198-199, 59 N.E. 925, 928 (1901). If it is established that there is a special structure or device on a business premises, courts have required greater care from a business owner either because if there is some inherent danger in using the device as presented to patrons or if there are unusual circumstances surrounding the use of a device that would not otherwise be dangerous as presented.See Schubart, 168 Misc. at 435, 5 N.Y.S.2d at 208 (citing Schweit v. Harum Scarum Amusement Corp, 247 A.D. 755 (2d Dep't 1936)).
The court in Griffen noted that "it is very probable that, in the advance of mechanical arts, many new appliances will be introduced into buildings, which will involve danger. In the exercise of the same degree of care, different precautions may be necessary . . . the more dangerous an appliance may be, the more attention may be requisite." Id.
Plaintiff has not established that the escalator in the hotel is special structure See e.g., Birdsall v. Montgomery Ward, 109 A.D.2d 969, 971, 486 N.Y.S.2d 461, 463 (3d Dep't 1985) (defendant has no duty to constantly monitor the behavior of all who ride escalator); Cockfield v. Mays Furs Ready To Wear, Inc., 59 N.Y.S.2d 744 (Sup.Ct. 1944) ("no duty upon the defendant of providing attendants to ascend [the escalator] with its prospective patrons").
In the absence of any evidence showing that the Hotel escalator was a special structure, there is no additional duty of care imposed upon Defendants. See Jokelson v. Allied Stores Corp., 31 A.D.2d 200, 202, 295 N.Y.S.2d 730, 732-733 (1St Dep't 1968) (the test is whether a "person of reasonable prudence would regard it as a potential source of accident or injury"). If recent use of an escalator indicates that people have traversed the escalator in safety, then reasonable prudence would not regard it as dangerous. Id. If an escalator is not dangerous or defective, then there is a duty to provide supervision or warning only if unusual circumstances exist surrounding its use. Frien v. Sears. Roebuck Co., 125 N.Y.S.2d 775 (Sup.Ct. 1953) (liability may not be predicated on a failure to maintain personal attendants at escalator landings unless crowded conditions exist); See also Cockfield v. Mays Furs Ready To Wear, Inc., 59 N.Y.S.2d 744; Birdsall v. Montgomery Ward, 109 A.D.2d at 971, 486 N.Y.S.2d at 463. An unusual condition can exist when the plaintiffs freedom of movement on the escalator is restricted by forces under the control of the defendant. Hsieh v. New York Transit Authority, 216 A.D.2d 531, 628 N.Y.S.2d 767 (2d Dep't 1995).
In Jokelson, the court determined that there was a fact issue for the jury based on evidence of faulty maintenance.
In Hsieh, a man on a subway escalator fell in a chain reaction of falling escalator passengers. Because there were only five people in front of him on the escalator, the court held that there was no evidence that his freedom of movement was unduly restricted to the extent necessary to impose liability on defendant. Hsieh, at 532. See also Perez v. Hearn Department Store Corp., 37 A.D.2d 842, 326 N.Y.S.2d 127 (2d Dep't 1971) (no duty to attend escalator where there is no evidence that conditions surrounding its use prevented plaintiff from disembarking without injury).
Plaintiff also relies on Schubart to support her claim that the Hotel's escalator is a device requiring heightened supervision. As noted above, the court in Schubart held that a hotel had a duty to supervise a revolving door only under extraordinary circumstances. In that case, the duty arose from unusual activity in the area of the revolving door and not from any inherent danger caused by the door itself. In making this determination, the Schubart court noted that the case should not be compared with one where a business patron is injured by the use of a device or structure under ordinary circumstances. Schubart, 168 Misc. at 435, 5 N.Y.S.2d at 208; cf. Taieb v. Hilton Hotels, 520 N.Y.S.2d 776 (1St Dep't 1987) (hotel must provide personnel to help patrons use stairs to escape a life threatening fire).
Here, Plaintiff has provided no evidence that the escalator in the Hotel is defective or dangerous. Plaintiff does not allege that any past Hotel guests had been injured while ascending it. Moreover, Plaintiff admitted that the escalator was operating normally. (Stanton Deposition, at 32.) Plaintiff also failed to proffer evidence showing the existence of any unusual situation surrounding the use of the escalator. She testified not only that she was the only person on the escalator at the time of the incident, but also that there was no one in the lobby to block her egress. (Id. at 30.)
Because there is no evidence that the Hotel escalator was dangerous, that an unusual situation existed at the time of the accident or that the escalator is special structure, there is no triable issue of fact as to whether Defendants were under a duty to supervise the escalator or to warn patrons who might use it for the purpose of ascending to the second floor.
Proximate Cause
In order to establish a prima facie case of negligence, a plaintiff must show that the defendant's alleged breach was the proximate cause of the plaintiffs injuries. Stagl v. Delta Airlines. Inc., 52 F.3d at 467. In the event that other possible causes exist, the proof must render those other causes sufficiently remote to allow the jury to logically infer that it was more likely that the alleged injury was caused by defendant's negligence than by some other agency. Gayle v. City of New York, 703 N.E.2d 758, 759, 680 N.Y.S.2d 900, 901 (1998). Plaintiff has not offered evidence that her own conduct was a sufficiently remote cause or that any act or omission on the part of the Defendants was the more likely cause. Therefore, there is no triable issue of fact as to whether Defendant's alleged negligence was the proximate cause of Plaintiffs injury.
It is not enough that the defendant furnished the condition for the event's occurrence. See Silver v. Sheraton Smithtown Inn, 121 A.D.2d 711, 504 N.Y.S.2d 56 (sudden and unexpected altercation at a hotel's cocktail lounge was not the proximate cause of plaintiffs injury); Lee v. Durow's Restaurant, Inc., 238 A.D.2d 384, 385, 656 N.Y.S.2d 321, 322 (2d Dep't 1997) (spontaneous conduct of third-party restaurant guest was the sole cause of injury, alleged negligence of restaurant was not the proximate cause as a matter of law).
CONCLUSION
In light of the foregoing, Defendants' motion for summary judgment is granted. Judgment dismissing the complaint shall be entered in Defendants' favor.