Rosemond Barney-Yeboah, Respondent,v.Metro-North Commuter Railroad, Appellant.BriefN.Y.March 27, 2015New York County Clerk’s Index No. 103354/10 New York Supreme Court APPELLATE DIVISION — FIRST DEPARTMENT ROSEMOND BARNEY-YEBOAH, Plaintiff-Appellant, against METRO-NORTH COMMUTER RAILROAD d/b/a MTA METRO-NORTH COMMUTER RAILROAD (METRO-NORTH), Defendant-Respondent. >> >> To Be Argued By: N. Jeffrey Brown BRIEF FOR DEFENDANT-RESPONDENT KREZ & FLORES, LLP Attorneys for Defendant-Respondent 225 Broadway, Suite 705 New York, New York 10007 212-266-0400 jbrown@krezflores.com Of Counsel: N. Jeffrey Brown Printed on Recycled Paper i TABLE OF CONTENTS Page TABLE OF AUTHORITIES.....................................................ii PRELIMINARY STATEMENT ..............................................1 ISSUE PRESENTED .................................................................2 The Deposition Testimony...............................................2 COUNTERSTATEMENT OF FACTS.....................................2 ARGUMENT ...............................................................................7 POINT I THE COURT DID NOT COMMIT JUDICIAL ERROR IN DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BASED ON THE DOCTRINE OF RES IPSA LOQUITUR.................................................7 THE PLAINTIFF-APPELLANT HAS NOT MET HER BURDEN OF ESTABLISHING ENTITLEMENT TO SUMMARY JUDGMENT BASED ON RES IPSA LOQUITOR..........................................................................9 A. Plaintiff-appellant has confused the inference of negligence with the presumption of negligence.............................9 CONCLUSION ............................................................................14 PRINTING SPECIFICATIONS STATEMENT.......................15 ii TABLE OF AUTHORITIES Page Cases Bressler v. New York Rapid Transit, 277 N.Y. 200 (1938) ................................. 13 Cebula v. Bonime, 92 A.D.2d 856, 459 N.Y.S.2d 847 (2nd Dept. 1983) ............ 10 Dermatossian v. New York City Transit Authority, 67 N.Y. 2d 219 (1986) ................................................................................................ 7, 10, 13 Dillenberger v. 74 Fifth Avenue Owners Corporation, 155 A.D. 2d 327 (1st Dept. 1989) ........................................................................................... 11 Dittinger v. Isal Realty Corp., 290 N.Y. 492, 49 N.E. 2d 980 ................................ 8 Foltis, Inc. V. City of New York, 287 N.Y. 108 (1941) ..................................... 8, 9 Griffin v. Manice, 166 N.Y. 188, 59 N.E 925 ......................................................... 8 Harmon v. United States Shoe Corp., 262 A.D.2d 1010, 692 N.Y.S.2d 566 (4th Dept. 1999) .......................................................................................... 12 Horowitz v. Kevah Konner, Inc. 67 A.D. 2d 38 ................................................... 11 Kambat v. St. Francis Hospital, 89 N.Y.2d 489, 678 N.E.2d 455, 655 N.Y.S.2d 844 (1997) ........................................................................ 6, 10 Martinez v. City of New York, 292 A.D.2d. 349 (2nd Dept. 2002) ..................... 13 Mejia v. NY City Transit Authority, 291 A.D.2d 225 (1st Dept. 2002) ............... 12 Morejon v. Rais Constr. Corp., 7 NY3d 203 (2006) ..................................... 6, 9, 10 iii Nesbit v. New York City Transit Authority, 170 A.D. 2d 92 (1st Dept. 1991) ....................................................................................... 6, 13 Notice v. Regent Hotel Corp., 76 A.D. 2d 820 (1st Dept. 1980) .......................... 11 Radnay v. 1036 Park Corporation, 17 A.D. 3d 106 (1st Dept. 2005) ................... 12 Sacramona v. Scalia, 36 A.D.2d 942 (1st Dept. 1971) ......................................... 13 Smith v. Moore, 27 A.D.2d 854 ............................................................................ 12 Other Authorities Richardson, Evidence §93, at 68 [Prince 10th ed.] ................................................. 8 Richardson, Evidence §93, at 69 [Prince 10th ed.] ................................................. 8 1 PRELIMINARY STATEMENT Metro-north Commuter Railroad d/b/a MTA Metro-north Commuter Railroad (defendant-respondent) submits this brief in support of its position that the decision below should be affirmed. The January 7, 2013 Decision and Order of the Hon. Joan A. Madden (RA 8-14) denied plaintiff’s motion for an Order of partial summary judgment on the issue of liability on the basis of the theory of res ipsa loquitur. The Court correctly found that under the facts and circumstances of this case, plaintiff- appellant has not met the standard for summary judgment on the basis of res ipsa loquitor and thus summary judgment was not warranted. Defendant-Respondent submits that the Court below was correct in its denial of plaintiff-appellant’s motion for summary judgment. On July 13, 2009 plaintiff was a passenger on a commuter train owned and operated by the defendant-respondent, Metro-North. A ceiling panel became loose and struck the plaintiff allegedly causing her to sustain personal injuries. After the completion of discovery plaintiff moved for partial summary judgment on the issue of liability on the basis of the theory of res ipsa loquitor. 2 ISSUE PRESENTED: 1. Was the Order of the Hon. Joan A. Madden of January 7, 2013 correct in finding that plaintiff-appellant had not met the standard required for the application of res ipsa loquitor as a matter of law? We submit that the determination below was correct. COUNTERSTATEMENT OF FACTS Defendant-respondent, Metro-North, submits the following counter-statement of facts: Plaintiff-appellant brought suit against Metro-North Commuter Railroad d/b/a MTA Metro-North Commuter Railroad (hereinafter referred to as Metro-North or defendant-respondent) seeking to recover damages for personal injuries allegedly sustained on July 13, 2009. Plaintiff-appellant alleges that on that day she was sitting in her seat on a Metro-North commuter train, when a ceiling panel struck her. Two non-party witnesses, also passengers in the same train car as the plaintiff at the time of the incident, testified at non-party depositions. The Deposition Testimony Robert J. Burke, a non-party witness, testified that he was sitting in an aisle seat 3-5 feet away from the plaintiff and both he and the plaintiff were facing north. (RA 232, 233) He observed a ceiling panel between a cluster of seats which seemed 3 to pop loose and come down on its hinge. (RA 236) The panel came down and swung inwards from the door of the car and struck the plaintiff on the back of the head. (RA 237) He got up from his seat and he and two other passengers lifted the panel off the plaintiff. The plaintiff-appellant then stood up and sat where Mr. Burke had been and remained sitting until the train arrived at Croton. (RA 240, 244) Mr. Burke noticed the ceiling panel squeaking and vibrating just prior to the occurrence (RA 245, 246) which he noted is not uncommon. (RA 246) He also reported that ceiling panels do move on occasion. (RA 246, 261) He testified that the panel was held in place with four bolts and two had been loosened. (RA 249) After the incident, MTA personnel secured the panel with a wrench or screwdriver, but it did not seem to be a power tool. (RA 252) Mr. Burke has been a commuter on the Metro-North Railroad from 1983 to 1989 and from 1993 to 2012. (RA 258) During his twenty-five years as a commuter he had never noticed a ceiling panel loose or ceiling panel bolts loose.(RA 260). This was the first time as a commuter on a Metro-North train where he witnessed anything like this happening. (RA 287) Metro-North’s general foreman, Jack Curtiss, also testified at a deposition. He testified that the ceiling panel that fell is used to access evaporators, the heating element and ventilation ducts. (RA 368) The panels are fastened with quarter turn screws, four per each panel, two safety latches and a safety chain on each panel. (RA 4 369). To lower the panel one would have to loosen the screws. (RA 373) The screws do not have to be removed, just loosened. (RA 374) One can then reach up and depress the safety latches on each side of the panel. (RA 373) Once the safety latches are depressed the panel would drop down. (RA 373) The panel is about four feet wide from side to side. (RA 374) There is one safety chain per panel. (RA 375) The safety chain is attached to a piece of metal with a hole in it. (RA 375) The safety chain does not prevent the panel from opening, it merely prevents the panel from swinging all the way down. (RA 376) If one wants to lower the panel to access the system they do not have to disengage the safety chain. (RA 376) To reattach the panel to the ceiling one would lift the panel up and push it. (RA 376) If the catches don’t catch then the panel would stay open. (RA 377) Mr. Curtiss further testified that a ceiling panel cannot fall down without loosening the screws and releasing the safety latches. (RA 388) Mr. Curtiss could not explain a situation where a ceiling panel completely fell on its hinge and completely fell down. (RA 389) He had never seen or heard of that every happening before. (RA 389) That would be a situation where all three safety devices-the safety latches, the safety chain and the screws would all have to fail simultaneously (RA 389) It is not difficult to disengage safety latches. (RA 390) Mr. Curtiss does not believe that all 5 safety devices can fail at once and he cannot explain how all safety devices would fail. (RA 419) In light of the fact that the ceiling panel involved is located in a public area and is easily accessed, the only logical conclusion is that the safety mechanisms failed because of some intervening tampering by an unknown third-party. Just because Mr. Curtiss did not know who may have accessed the ceiling panel, this does not establish exclusive control. This was taken into account by the lower court when it correctly denied plaintiff-appellant’s motion for partial summary judgment on the theory of res ipsa loquitor. Contrary to the plaintiff-appellant’s brief, the lower court did not find that all three elements of res ipsa loquitur present. Further, the lower court certainly did not agree that the ceiling panel would not have swung down in the absence of negligence. Instead, the lower court stated that “the first and third elements [of res ipsa loquitur] were clearly established since train car ceiling panels with multiple safety mechanisms do not generally fall on passengers in the absence of negligence”. (RA 13) However, with respect to the second element of res ipsa loquitor, the lower court correctly found that summary judgment was not warranted. While the court found that “Metro-North may have had sufficient control of the instrumentality in this case 6 the ceiling panel ...” (Emphasis supplied) (RA13), it did not hold that the ceiling panel was in its exclusive control. Rather, it held that it was a question of fact for a jury. The court held as follows: ... summary judgment as to liability based on res ipsa loquitor is not warranted. Res ipsa loquitor does not create the presumption of negligence, but ‘merely permits the jury to infer negligence from the circumstances of the occurrence. The jury is thus allowed - - but not compelled - - to draw the permissible inference.’ Kambat v. St. Francis Hospital, 89 NY2d at 495. Thus, the application of res ipsa loquitor may only provide the basis for granting summary judgment in favor of a plaintiff “in the rarest of ... cases may ... when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable.” Morejon v. Rais Constr. Corp., 7 NY3d 203, 209 (2006). The court finds that under this standard summary judgment is not warranted as while the jury may find that Metro- North had exclusive control of the panel and infer that the panel would not have fallen in the absence of negligence, the circumstances here do not compel these findings as a matter of law. See Nesbit v. New York City Transit Auth., 170 A.D.2d 92. Thus, the lower court correctly denied plaintiff-appellant’s motion for summary judgment on liability based on the theory of res ipsa loquitor. 7 ARGUMENT POINT I THE COURT DID NOT COMMIT JUDICIAL ERROR IN DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BASED ON THE DOCTRINE OF RES IPSA LOQUITUR. The lower court properly denied plaintiff’s motion for summary judgment based upon the doctrine of res ipsa loquitur. Plaintiff in her brief cites Dermatossian v. New York City Transit Authority, 67 N.Y. 2d 219 (1986). In Dermatossian the Court of Appeals set forth the general rule with respect to a res ipsa loquitur case. The Court held: In New York it is the general rule that submission of the case on the theory of res ipsa loquitur is warranted only when the plaintiff can establish the following elements: “(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of plaintiff.” (67 N.Y. 2d at 226) (citations omitted). The summary judgment motion was rightly denied by the lower court because the plaintiff-appellant not only failed to satisfy the second required 8 element but also because the doctrine of res ipsa loquitur does not permit a presumption of negligence. Rather, it merely permits an inference of negligence which may be submitted for determination by the trier of fact. The Dermatossian court further held: The doctrine of res ipsa loquitur represents an application of the ordinary rules pertaining to circumstantial evidence in negligence cases stemming from accidents having particular characteristics. When the doctrine is invoked, an inference of negligence may be drawn solely from the happening of the accident upon the theory that ‘certain occurrences contain within themselves a sufficient basis for an inference of negligence’. (Foltis, Inc. V. City of New York, 287 N.Y. 108 (1941); see, Richardson, Evidence §93, at 68 [Prince 10th ed.]). The rule simply recognizes what we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence (see, e.g., Dittinger v. Isal Realty Corp., 290 N.Y. 492, 49 N.E. 2d 980; Griffin v. Manice, 166 N.Y. 188, 59 N.E 925). Res ipsa loquitur does not create a presumption in favor of the plaintiff but merely permits the inference of negligence to be drawn from the circumstance of the occurrence (Richardson, Evidence §93, at 69 [Prince 10th ed.]). The rule has the effect of creating a prima facie case of negligence sufficient for submission to the jury, and the jury may–but is not required to–draw the permissible inference (see, Foltis, Inc. V. City of New York, supra, 287 N.Y. at pp. 115- 120).” 9 THE PLAINTIFF-APPELLANT HAS NOT MET HER BURDEN OF ESTABLISHING ENTITLEMENT TO SUMMARY JUDGMENT BASED ON RES IPSA LOQUITOR A. Plaintiff-appellant has confused the inference of negligence with the presumption of negligence. Plaintiff-appellant is unable to establish summary judgment on the inference of res ipsa loquitor, and has confused presumption of negligence with inference of negligence. Plaintiff-appellant’s confusion of the inference of negligence with presumption of negligence has long ago been clarified by the New York Court of Appeals in Foltis, Inc. v. City of New York, 287 N.Y. 108, 38 N.E.2d 455 (1941). As recently as 2006, the Court of Appeals reiterated its prior holding in Foltis holding that only in the rarest of cases can res ipsa loquitor be used as the basis for granting summary judgment in favor of a plaintiff on the issue of liability. Morejon v. Rais Construction Corp., 7 N.Y.3d 203, 851 N.E.2d 1143, 818 N.Y.S. 2d 792 (2006). The Morejon court explained the decision in Foltis, stating: “The [Foltis] court held that res ipsa loquitor does not create a presumption of negligence against the defendant. Rather, the circumstantial evidence allows but 10 does not require the jury to infer that the defendant was negligent. The Court went on to state that res ipsa loquitor evidence does not ordinarily or automatically entitle the plaintiff to summary judgment or a directed verdict, even if the plaintiff’s circumstantial evidence is unrefuted. (Emphasis added). 7 N.Y.3d at 203, 209 (2006). Moreover, the plaintiff-appellant completely ignores the fact that a claim of res ipsa loquitor merely permits the finder of fact to infer negligence from the circumstances of the occurrence’. Kambat v. St. Francis Hospital, 89 N.Y.2d 489, 495, 678 N.E.2d 455, 655 N.Y.S.2d 844 (1997); Dermatossian v. NY City Transit Authority, 67 N.Y.2d. 219, 492 N.E.2d 1200, 501 N.Y.S.2d 784 (1986). In Kambat the court noted that the meeting these requirements would entitle a plaintiff to have res ipsa loquitor charged to a jury. Instead, plaintiff-appellant relies on those rare cases where the defendant’s opposition is so weak that summary judgment was granted. These cases are clearly distinguishable from the case at bar. For example, in Cebula v. Bonime, 92 A.D.2d 856, 459 N.Y.S.2d 847 (2nd Dept. 1983) the Appellate Division, Second Department, reversed the lower court’s denial of summary judgment based on res ipsa loquitor in a wrongful death action. Cebula involved a wrongful death case arising out of a motor vehicle accident in which the plaintiffs were co- 11 administratrixes of an estate. The vehicle involved left the roadway, mounted the center divider and collided with a tree. In opposition to the plaintiff’s summary judgment motion, defendants submitted only an attorney’s affirmation which was wholly devoid of any evidentiary material and which merely contained conclusory observations. The Court held, based on the plaintiff’s proof, unrebutted by defendants, that the inference of negligence under these facts is inescapable. In Dillenberger v. 74 Fifth Avenue Owners Corporation, 155 A.D. 2d 327 (1st Dept. 1989), the plaintiff was a lessee in a building owned by defendant and sued for damages sustained when water pipes in an adjacent common area burst. This court affirmed the grant of summary judgment based on the doctrine of res ipsa loquitur which gave rise to a permissible inference of negligence which was not rebutted by evidentiary proof in admissible form (citing Horowitz v. Kevah Konner, Inc. 67 A.D. 2d 38). Here again the inference of negligence was unrebutted by defendant. In Notice v. Regent Hotel Corp., 76 A.D. 2d 820 (1st Dept. 1980) this court reaffirmed the principle that res ipsa loquitur merely gives rise to a permissible inference of negligence, and does not justify either a directed verdict or summary judgment. However, in that case, it appeared without contradiction that the freight elevator which fell was operated at the time by an employee of the defendant 12 hotel. Apparently, the defendant hotel presented no evidence to rebut the inference of negligence. In the case at bar, however, not only was the ceiling panel accessible to the general commuting public, but the Metro-North foreman testified that he does not know how such an event would happen and has never heard of such an event. In Harmon v. United States Shoe Corp., 262 A.D.2d 1010, 692 N.Y.S.2d 566 (4th Dept. 1999) the plaintiff was granted summary judgment on the basis of res ipsa loquitor where a bar upon which merchandise was attached, detached from the wall and struck her. The court wrote that summary judgment is properly granted in a res ipsa loquitor where, “defendant has totally failed to rebut the inescapable inference of negligence” (citing Smith v. Moore, 27 A.D.2d 854). In Harmon, again the defendant opposed the summary judgment motion with only an attorney’s affirmation and no admissible evidence. In contrast, here Metro-North has relied on the deposition testimony of Metro-North employee Jack Curtiss, the non-party witness Burke and on the fact that the ceiling panel was accessible to the general public. It has been repeatedly held that res ipsa loquitor is not an appropriate basis on which to grant summary judgment to a plaintiff. Radnay v. 1036 Park Corporation, 17 A.D. 3d 106 (1st Dept. 2005); Mejia v. NY City Transit Authority, 13 291 A.D.2d 225 (1st Dept. 2002); Martinez v. City of New York, 292 A.D.2d. 349 (2nd Dept. 2002); Dermatossian v. New York City Transit Authority, 67 N.Y.2d. 219 (1986). Rather, the question is properly left to the jury. Bressler v. New York Rapid Transit, 277 N.Y. 200 (1938). This case closely resembles Nesbit v. New York City Transit Authority, 170 A.D. 2d 92 (1st Dept. 1991). In Nesbit the plaintiff’s decedent was walking on the sidewalk and was struck on the head by a safety chain that had allegedly fallen from one of defendant’s elevated trains. The lower court improperly set aside the verdict in plaintiff’s favor. The court held that a charge of res ipsa loquitur was warranted since the exclusive control requirement of res ipsa loquitur is not an absolutely rigid concept. See, also, Sacramona v. Scalia, 36 A.D.2d 942 (1st Dept. 1971). The court in Morejon, supra, stated that the plaintiff should win summary judgment or a directed verdict in the exceptional case in which no facts are left for determination. This is not such a case. 14 CONCLUSION For the foregoing reasons, the defendant-respondent respectfully urges this Court to issue an Order affirming the decision and Order of the lower court which correctly denied plaintiff’s motion for summary judgment. Respectfully submitted, KREZ & FLORES, LLP ____________________________ N. JEFFREY BROWN Attorneys for Defendant-Respondent, Metro-North Commuter Railroad d/b/a MTA Metro- North Commuter Railroad 225 Broadway, Suite 705 New York, New York 10007 (212) 266-0400 jbrown@krezflores.com 15 PRINTING SPECIFICATIONS STATEMENT Pursuant to 22 NYCRR § 600.10(d)(1)(v) The foregoing brief was prepared on a computer using a proportionally spaced typeface as follows: Type of Typeface: Times New Roman Point Size: 14 Line Spacing: Double The total number of the words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum is 3001.