163 A.D.2d 509 | N.Y. App. Div. | 1990
In an action to recover damages for personal injuries and wrongful death, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Wood, J.), entered January 30, 1989, which granted the defendants’ motion to dismiss the complaint.
Ordered that the order and judgment is affirmed, with one bill of costs.
The kitchen, located on the second floor, is equipped with a dumbwaiter that is used to transport supplies from the ground floor to the kitchen. The dumbwaiter is approximately 3Vi feet high, 3 feet wide and 2 feet deep. It operates by means of a push button located on the wall outside of the apparatus. Although the dumbwaiter had originally been fitted with doors at the ground level which would render the lift inoperable if not closed, the doors had been removed approximately three years prior to the accident when the dumbwaiter broke down.
The repairman had informed the general manager that the doors could not be repaired. Therefore, to remain functional, either the doors had to be permanently removed or the entire unit replaced. The general manager of the club made the decision to have the doors removed and apparently later informed the board of this decision. After the removal of the doors, Lopez and other employees regularly rode the dumbwaiter. A flight of stairs is also located near the dumbwaiter, providing access to the second-floor kitchen.
As was his practice on prior occasions when he returned to the club after closing hours to get something to eat, Lopez conducted a cursory security check to make certain the doors were locked and the windows were closed. Next, Lopez turned on the light that illuminates the stairway leading to the kitchen and instructed the decedent to use the stairs. Lopez then boarded the dumbwaiter. While standing in a crouched position, he reached outside the apparatus and activated the control button. As the dumbwaiter started to ascend to the kitchen level, the decedent attempted to jump inside. With only her upper torso inside the dumbwaiter, the decedent sustained fatal injuries when she became wedged between the ascending dumbwaiter and elevator shaft. An autopsy conducted after the accident revealed that the decedent had a blood alcohol level of .26.
A landowner has a duty to exercise reasonable care in