Edelman & Edelman, P.C. By: Howard Engle and Alana Landa, Attorneys for plaintiff Diane Carone. Kaufman Dolowich & Voluch LLP By: Gino Zonghetti and Kevin O'Donnell, Attorneys for defendant St. George Theater Restoration, Inc.
Edelman & Edelman, P.C. By: Howard Engle and Alana Landa, Attorneys for plaintiff Diane Carone.
Kaufman Dolowich & Voluch LLP By: Gino Zonghetti and Kevin O'Donnell, Attorneys for defendant St. George Theater Restoration, Inc.
ALAN C. MARIN, J.
This is the decision following the non-jury trial of Diane Carone's claim, which arose from her fall at the St. George Theater on Saturday afternoon, September 15, 2012. Ms. Carone had called the box office earlier in the week for two tickets for Saturday to see the solo performance by medium Theresa Caputo. The second ticket was for her friend and neighbor, Elizabeth Browne.
Plaintiff was disappointed when told that the only seats available were well up in the second mezzanine, and she was put on a waiting list for better seats, to no avail. The theater has an orchestra level as well as upper and lower balconies or mezzanines. Its seating capacity is about 1,800, of which some 1,300 are upstairs in the mezzanines (plaintiff's exh 7).
The two friends ended up sitting in the third row from the back of the upper mezzanine—row Q, which was in section D. Their seats, Q 13 and 14, were on the aisle. The term "aisle" will be used here to refer to the aisles that run down toward the stage; "row aisle" means the narrower space between rows of seats (unless it is otherwise clear from the context, that "aisle" refers to a row aisle).
Plaintiff testified that when the show ended:
"We decided to stay in our seats until the theater started to clear out. But being we were on the two end seats, we had to keep getting up to let people ... get out of the row from the right side.. So we decided to go back and stand by—There's a half wall at the back of the theater which was two rows back ... And we stayed there until people decided to leave the theater at the exit, the fire exit which was an emergency exit [at the very] back of the theater."
"So then the ushers that were in the lower mezzanine came running up saying that was an emergency exit only and tried to direct all the people to go down to the main aisle to get out of the building ... they closed the door and they put a lock on it."
At that point, plaintiff testified that they were at the back of the theater against the wall, and as soon as the crowd cleared from that area, she and Ms. Browne went into the last row, S, and sat down, with plaintiff on the aisle.
The seats in row Q, where the two women had sat during the performance, and the next row up, R, are entered from a horizontal platform level with the row aisle. The access to row S is different. To get to its seats from a main aisle, the patron goes up two steps. Carone's second step up these "access steps" brought her to the level of the aisle between rows R and S. There were no handrails in the area.
Carone thought they were in row S for about five minutes. Then, plaintiff testified, she got up, held onto the back of the seat in row R in front of her, turned to her right, "went down the first step and the step closest to the aisle [and] I lost [my] balance going down that step and came out, spun around and ... I guess after I lost control of my body, just rolled and rolled and couldn't stop myself ... I knew the step was there. I approached it and my foot just slipped after it hit that part of the step."
When asked why she fell, plaintiff said, "I believe it was because it was so dark." Carone said she told box office manager Henry Decker that "I fell coming out of the seat." The incident report filled out by Mr. Decker had a one-sentence description of what happened: "Guest fell from step and landed on right side hurting knee & back" (plaintiff's exh 5):
Q. Did you slip and fall coming down the steps from row S or did you trip in the main aisle?
A. Coming down from row S.
More specifically, "I lost my footing because [the step is] short there":
Q. Okay. How much of your foot made contact with the step; do you have any idea? ...
A. No, it wasn't the whole foot.
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Defendant St. George Theater Restoration, Inc. challenges plaintiff's trial testimony on what caused her to fall. They point to uncertainty in her deposition. To that end, note the following exchange on cross-examination of plaintiff:
Q. Now, you really don't know what caused you to fall; is that correct?
A. I say it was dark.
Q. And I assume you've always said that was the case, right?
A. Yes, it was dark and the step—I missed the step. It wasn't a full step there.
Q. Can we go to your deposition on page 116 ...
"Question: What do you think caused you to fall?
"Answer: I don't know."
Elizabeth Browne did not see her friend's accident: "By the time I turned around, she was rolling down the steps." But, in her 2014 deposition, when asked where the fall began, Browne had responded, "I don't know."
Browne's deposition was December 5, 2014, and plaintiff's July 14, 2014.
Defendant maintains that because Carone was uncertain as to causation or that she uses expert opinion to overcome her uncertainty, plaintiff has failed to make out a prima facie case. On the former, defendant cites a number of cases, including these three from the Second Department, all decided on motion before trial: Patrick v. Costco Wholesale Corp., 77 AD3d 810 ; Cipriano v. City of New York, 120 AD3d 738 and Alabre v. Kings Flatland Car Care, 84 AD3d 1286. They are distinguishable. For example: in Patrick, plaintiff said he slipped on ice cream after an employee pointed it out 20 minutes later; Mr. Alabre, who was delivering parts to an auto repair center, said he slipped on oil or grease because the shop floor was always that way.
In Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 477, 478 (2d Dept), a slip and fall was alleged; decedent had been found on the floor of his apartment. The Second Department said that no cause of action obtains "where there are several equally plausible explanations for the accident and no competent admissible proof, only speculation, as to the cause of as to the cause of the accident ."
Ultimately of course, a trier of fact must determine whether an act or omission is a substantial factor in bringing about the accident. There can be more that one cause, but to be substantial, it cannot be slight or trivial ( PJI 2:70 ; Fox v. Tedesco, 15 AD3d 538 [2d Dept] ).
Here, the elements of Diane Carone's fall are entwined. The evidence presented was addressed to the following: the adequacy of the lighting; whether there should have been hand railings; the depth of, and markings on, an access step; and the use of ushers for crowd control.
This trier of fact does not accept plaintiff's view that the area by her seat in row S was not light enough. More persuasive on the issue were defendant's witnesses. Its expert architect, Joseph Sage, measured the light at row S as 2.2 candles, above any recognized standard therefor. With the assistance of the theater's executive director, Wayne Miller, the lighting was adjusted to what it was at the close of the Caputo performance.
Sage visited the theater on May 1 and May 7 of 2015. The latter date was when Mr. Miller accompanied Sage. At the time of Carone's accident, Miller was the technical director, whose responsibilities included lighting.
Lighting, railings and step markings in places of public assembly are dealt with by the New York City Building Code. The parties disagree on which version of the Code applies. Architect Sage, when asked what building code applied, said it was the 1968 City Building Code. However, later in his testimony, Sage said that the theater was built in 1929, and explained that the 1968 Code, including section 7, subdivision f, on new construction, is what governs: "And that what was there before, that hasn't been modified, is allowed to exist."
That existing buildings are exempt from the provisions of new building codes, unless there is substantial renovation, is a general principle ( Wilson v. Proctors Theater & Arts Ctr. & Theater of Schenectady, 223 A.D.2d 826 [3d Dept] ; and Wyckoff v. Jujamcyn Theaters, Inc., 11 AD3d 319 (1st Dept). However, plaintiff relies upon section 28–101.4.3(5) of the 2008 Building Code, which provides the optional use of the 1968 Building Code: "Where the estimated cost of such alteration in any twelve-month period exceeds fifty percent of the cost of replacement of the building or where there is a change in the main use or dominant occupancy of the building."
Plaintiff does not meet the 50% test. While some higher values were presented, according to the March 28, 2011 balance sheet and June 30, 2015 financial statement, the St. George Theater was valued at $3.6 million. Separately, consider three amounts: (i) $73,014 in capital expenditures, (ii) $778,497 in building improvements, and (iii) $4 million in estimated expenditures on building alterations for rigging systems. The first is too small, the second too indefinite as to time (and also only 20% of the theater's value), and the third set of expenditures is too late (beginning after plaintiff's accident).
See plaintiff's exhibit 2.
For lighting and edge markings on steps, the 1968 and 2008 codes are effectively the same. As concluded earlier, the lighting at the end of Caputo's performance was adequate. The theater's staff acknowledged at trial that color-contrasting tape should be used on the edges of the steps.
As for railings, the 1968 Code does not require them; the 2008 code does. Plaintiff's expert architect, Howard Kronland, asserts that "Chapter 11 of the 2008 Code ... requires handrails on all stairways without distinguishing between access stairs or stepped aisles" (plaintiff's exh 7, paragraph 24). For defendant, Mr. Sage testified that the two steps providing access between the aisle and row S did not require a handrail, and there was no such requirement for it under the 1968 Code.
There are Code provisions that require an "unobstructed floor space" or level platform into any aisle steps (7 square feet in the 1968 Code, and 24 square feet in the 2008 Code).
Kronland testified by Affidavit, which accompanied prior motion practice in this matter (plaintiff's exh 7).
Failing the 50% test, plaintiff cannot rely on the New York City Building Code to show negligence on the part of St George Theater Restoration, Inc. In any event, a violation of such building code is only some evidence of negligence ( Elliott v. City of New York, 95 N.Y.2d 730 ).
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A more promising avenue for plaintiff is common law negligence ( Barley v. Robert J. Wilkins, Inc., 122 AD3d 1116 [3d Dept] ). As we know, "negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. A person is only responsible for the results of his or her conduct if the risk of injury is reasonably foreseeable." ( PJI 2:12 ; United States v. Carroll Towing, 159 F.2d 169 [2d Cir] ).
Significant in Carone's testimony was her recollection that as she was leaving row S, she could get only part of her foot on the first access step because its tread was too narrow. Neither side's expert referenced the width of the tread and any code applicability thereto, but the access steps were apparently shorter than the other steps in the theater.
Tellingly, the first of the two access steps has additional, angled strips of tape across its entire tread. We received no evidence that any other steps, other than those providing row access, were so marked..
When the performance ended, there was no usher in the upper mezzanine area near Carone and Browne. An usher had come up to relock the fire exit, but when Carone fell, it was unchallenged that it took several minutes for an usher to reach her. While the two women testified that they waited until the redirected crowds from the fire door swept past them, it still added a little confusion to the scene.
Together, there is the unusual configuration of the access steps, the lack of an usher and the commotion of a redirected crowd. Add to that, the important element of no railing at row S. While not directly on point, it was striking that on Carone's way up to her seat in row Q, a patron offered her his hand in navigating the trip.
As indicated earlier, railings are not required by any applicable building code for this structure. However, theater management recognized their importance, and it was one of three items they sought and received grant funding for in 2010. Enough funding was received only to install railings along the aisles of the lower mezzanine, which was completed in 2013.
Here, because row S with its access steps was such an unusual configuration, the railings could have been put in front of row S and perhaps row R. Architect Kronland proposed such a plan for that area. (Its details seemed a little complex because the plan involved the removal of some seats).
The professionalism and commitment of the management and staff of the St. George Theater who came into court was patent. In a few years, the building was transformed from its rundown condition to a first class theater. By itself, the lack of a railing(s) may not have implicated defendant, but in combination with the other factors described above, the Court finds defendant responsible for Diane Carone's accident.
With that said, plaintiff must bear some share of the responsibility for her accident; which the the Court finds to be one-third: Ms. Carone safely made her way up the access steps to row S, which Ms. Browne managed to do in both directions; the configuration of the access steps was open and obvious (the depth of the step tread probably less so); and there had been no prior comparable accidents.
Accordingly, the Court finds the defendant St George Theater Restoration, Inc. two-thirds (66 2/3%) responsible for Diane Carone's accident at the theater on September 15, 2012.
NOW therefore, in view of the foregoing, it is:
ORDERED, that interlocutory judgment be entered accordingly against the defendant St George Theater Restoration, Inc. Chambers will contact the parties to schedule a trial on damages and, as appropriate, a conference prior thereto.