588 F.Supp.3d 328
E.D.N.Y.2021Background
- On March 28, 2015 Dolores Looney slipped/fell while descending a Macy’s escalator at Queens Center Mall, alleging her left shoe became caught in the escalator "teeth" (comb plate) and the escalator stopped, throwing her to the ground.
- Macy’s conducted daily Visual Security Officer (VSO) inspections; the VSO log for March 28, 2015 showed no problems that morning. VSOs would remove units from service and notify contractors if comb teeth problems were observed.
- Thyssenkrupp was contracted to maintain the escalator; its service log shows multiple comb-plate–related service calls from Dec. 2014–Mar. 2015 and preventive maintenance (including a March 26, 2015 entry two days before the accident reporting no missing teeth).
- Macy’s expert (Sena) opined Macy’s did not cause or contribute to the accident; Plaintiff’s expert (Carrajat) offered alternative causation theories and later submitted an affidavit asserting missing combfingers in photographs.
- Defendants moved for summary judgment; the court excluded portions of Carrajat’s affidavit as an improper, untimely supplement and granted summary judgment for both Macy’s and Thyssenkrupp, dismissing Plaintiff’s negligence claims and the cross-claims for contribution/indemnification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Defendants created the dangerous condition (broken/missing comb teeth) | Looney: prior comb-plate incidents show recurring hazard suggesting defendants caused/allowed the defect | Macy’s/Thyssenkrupp: no evidence either created the condition or any employee caused the damage | No genuine dispute; Defendants did not create the condition; summary judgment for Defs |
| Whether Defendants had actual notice of the hazardous comb condition | Looney: records of prior comb repairs/service calls put Defendants on notice | Defs: no evidence they knew of a comb defect at the time of accident; VSO log and recent preventive maintenance show no known issue | No actual notice shown; summary judgment for Defs |
| Whether Defendants had constructive notice via recurring condition | Looney: multiple prior comb-plate repairs establish a recurring, unresolved condition | Defs: repairs were logged and routinely addressed; daily inspections and response procedures negate "routinely unaddressed" requirement | Recurring-condition theory fails because evidence shows defects were regularly addressed; summary judgment for Defs |
| Whether res ipsa loquitur applies (exclusive control) | Looney: instrumentality malfunctioned, allowing inference of negligence; public access argument contested | Defs: escalator and comb plates were accessible to the public; third-party interference (public use, carts/packages) could explain damage | Res ipsa fails: Defs lacked exclusive control and public access left open third-party causes; summary judgment for Defs |
Key Cases Cited
- Pasternack v. Lab'y Corp. of Am. Holdings, 807 F.3d 14 (2d Cir.) (elements of negligence under New York law)
- Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209 (2d Cir. 2002) (negligence/premises-liability standards)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment/genuine issue standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burdens)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (nonmovant must show more than metaphysical doubt)
- St. Paul Fire & Marine Ins. Co. v. City of New York, 907 F.2d 299 (2d Cir. 1990) (exclusive-control requirement for res ipsa loquitur)
- Ebanks v. New York City Transit Authority, 70 N.Y.2d 621 (N.Y. 1987) (public access negates exclusive control for escalator accidents)
- Dermatossian v. New York City Transit Authority, 67 N.Y.2d 219 (N.Y. 1986) (instrumentality continuously available to public defeats res ipsa)
- Morejon v. Rais Const. Co., 7 N.Y.3d 203 (N.Y. 2006) (res ipsa as circumstantial evidence)
- Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (N.Y. 1986) (constructive notice must be of the particular condition)
- Potthast v. Metro-N. R.R. Co., 400 F.3d 143 (2d Cir. 2005) (elements of res ipsa loquitur)