Branham v. Loews Orpheum Cinemas, Inc.

• Decision Date: 27 July 2006
• Docket Number: 7104.
• Citation: 819 N.Y.S.2d 250,31 A.D.3d 319,2006 NY Slip Op 06045
• Parties: LOTTIE BRANHAM, Respondent, v. LOEWS ORPHEUM CINEMAS, INC., Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

31 A.D.3d 319

819 N.Y.S.2d 250

2006 NY Slip Op 06045

LOTTIE BRANHAM, Respondent, v. LOEWS ORPHEUM CINEMAS, INC., Appellant, et al., Defendants.

7104.

Appellate Division of the Supreme Court of the State of New York, First Department.

July 27, 2006.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered November 12, 2004, which denied defendant-appellant Loews's motion for summary judgment, reversed, on the law, without costs, the motion granted and the complaint dismissed as against Loews. The Clerk is directed to enter judgment in favor of Loews dismissing the complaint as against it.

On January 11, 1998 plaintiff Lottie Branham went to see the movie "Titanic" with her friend Isadora Mulzac at the Loews Cinema at 86th Street in Manhattan. At some point during the film, plaintiff left the theater to use the restroom. As she left the theater by the center aisle, she did not observe anyone walking, sitting or standing in the aisle. Plaintiff testified at her deposition that she was gone from the theater for seven or eight minutes, although she was not sure. She also testified that there was no line at the restroom and that she did not stop anywhere else while walking to or returning from the restroom. According to plaintiff, it was very dark in the theater at the time she left and when she returned. She did not observe any lights along the floor of the center aisle, nor did she see any lighted exit signs or lights on the theater walls.

Upon returning from the restroom, plaintiff walked down the same center aisle and began looking for her seat. She did not observe any obstructions in the aisle until she suddenly stumbled over something. Subsequently, she discovered that she had tripped over a nine- or ten-year-old child, a boy, who was sitting in the aisle. Plaintiff fell over the boy, sustaining various injuries including a twisted knee and fractured arm. Plaintiff remained there until the police and ambulance personnel came to assist her.

Plaintiff commenced the instant action for personal injuries against defendant Loews, the operator of the theater, and the owners of the premises.¹ In her complaint, she alleged that defendants were negligent in failing to maintain the premises in a reasonably safe condition by permitting a child to sit in the aisle of a darkened movie theater, thereby creating a tripping hazard, and by failing to have adequate lighting in the theater during the movie.

During discovery, Loews's manager, Ruben Fernandez, testified at deposition that the theater had ceiling floodlights, 8 to 10 lighted wall sconces and aisle lighting running along the carpeted center aisle. According to Fernandez, the ceiling lights were turned off during the film and the wall sconces were dimmed. However, the aisle lighting remained on throughout the entire day and created a noticeable path up to the front of the theater.

Fernandez further testified that it was "strictly prohibited" for people to sit in or obstruct the aisles, and that he knew of no prior occasions when such conduct had occurred. The theaters were inspected by a Loews employee prior to each film and it was Loews's policy to have an employee conduct an "aisle check" every 15 to 20 minutes during the film. According to Fernandez, the purpose of the aisle check was to look for illegal smokers, to ensure that the temperature in the theater was comfortable, to make sure the movie was running properly and to check for "any other obstructions" that might interfere with the patrons' enjoyment of the film. Fernandez did not recall the names of the ushers working on the date of plaintiff's injury and although a daily inspection log indicating when the aisle checks were conducted was kept, he did not think Loews kept those records beyond the date when they were made.

Loews moved for summary judgment, arguing lack of actual or constructive notice of the boy sitting in the aisle. Relying on plaintiff's deposition testimony that she was absent for only seven or eight minutes and did not observe any obstructions in the aisle when she left to use the restroom, Loews argued that the boy could not have been in the aisle for a sufficient period of time to support a finding of constructive notice. Loews further argued that Fernandez's testimony established that the lighting was adequate and no other evidence established a violation of any building code provision.

In opposition, plaintiff argued that Loews failed to meet its initial burden of making a prima facie showing of entitlement to judgment as a matter of law, since Fernandez's testimony of general inspection practices did not, in the absence of the inspection logs for the specific date, demonstrate a lack of notice. Plaintiff further argued that Loews failed to meet its burden of showing that the lighting in the theater met or exceeded the applicable code requirements.

In addition, plaintiff submitted an affidavit from her friend, Ms. Mulzac, who stated that she had gone to the restroom prior to plaintiff's trip. On her way out, Mulzac noticed a young boy sitting in the aisle. Mulzac stated that she was in the restroom for 15 to 20 minutes and when she returned, the boy was still sitting in the same place in the aisle. Notably, Mulzac also stated that plaintiff was absent from the theater for 15 to 20 minutes while using the facilities, because "there was a long wait." Aggregating the time periods covering both trips to the restroom, and making them consecutive, Mulzac estimated that the boy must have been in the aisle for 30 to 40 minutes prior to plaintiff's accident. Mulzac further averred that she did not see any ushers checking the aisle during the movie and that "the running lights along the aisle were insufficient to properly illuminate the aisle."

In reply, Loews argued that Mulzac's affidavit was inconsistent with plaintiff's deposition testimony in material respects and was apparently tailored to avoid summary judgment. Loews also submitted photographs of the theater showing the aisle lighting during the running of a film and the results of an Internet search of the Building Department's records showing that no violations had been issued to this theater for inadequate lighting.

The motion court denied Loews's motion for summary judgment. It held that in light of Loews's policy of having ushers patrol the aisles every 15 to 20 minutes during the movie, plaintiff's testimony and Mulzac's affidavit together raised a triable issue of fact as to whether Loews had constructive notice of a boy sitting in the aisle of its darkened movie theater. Loews appeals and we now reverse.

A landowner has a duty to maintain its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to third parties, the potential seriousness of the injury and the burden of avoiding the risk (Kellman v 45 Tiemann Assoc., 87 NY2d 871, 872 [1995]; Basso v Miller, 40 NY2d 233, 241 [1976]; Perez v Bronx Park S. Assoc., 285 AD2d 402, 403 [2001], lv denied 97 NY2d 610 [2002]). This duty applies with equal force to landowners and tenants who operate places of public assembly, such as theaters, and requires them to provide members of the public with reasonably safe premises, including safe means of ingress and egress (see Peralta v Henriquez, 100 NY2d 139, 143-144 [2003]; Gallagher v St. Raymond's R.C. Church, 21 NY2d 554, 557 [1968]).

However, in order to recover damages for an alleged breach of this duty, the plaintiff must first demonstrate that the defendant created or had actual or constructive notice of the hazardous condition which precipitated the injury (Piacquadio v Recine Realty Corp., 84 NY2d 967 [1994]; Beck v J.J.A. Holding Corp., 12 AD3d 238, 240 [2004], lv denied 4 NY3d 705 [2005]; Leo v Mt. St. Michael Academy, 272 AD2d 145, 145-146 [2000]). To constitute constructive notice, which is the predicate for liability alleged in this action, the defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant or its agents to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Perez, 285 AD2d at 403).

On this motion for summary judgment, defendant Loews had the burden of making a prima facie showing of its entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). As plaintiff does not argue that Loews had actual notice of the boy, Loews's burden was to show a lack of constructive notice, i.e., that the boy was not in the aisle for a sufficient length of time for its employees to discover and remove him. In our view, Loews met this burden (see Ulu v ITT Sheraton Corp., 27 AD3d 554, 554-555 [2006]).

Loews relies primarily on plaintiff's deposition testimony to show a lack of constructive notice. According to that testimony, plaintiff left the theater by the center aisle in order to use the restroom and saw no one in the aisle at that time, nor at any earlier time. She was gone for approximately seven or eight minutes and returned directly to the theater. While returning by the same aisle and looking for her seat, plaintiff stumbled over a young boy sitting on the aisle floor. Based on these facts, Loews made a prima facie showing that the boy could not have been sitting in the aisle for more than eight minutes and must have arrived some time after plaintiff left for the restroom. This time line, supplied by plaintiff's own testimony, negates any inference that the boy was present for a sufficient period of time to permit an inference of constructive notice.

In response to this prima facie showing, the burden shifted to plaintiff to produce evidence sufficient to raise a triable issue of fact on the issue of constructive notice (Alvarez, 68 NY2d at 324). In finding a triable issue, the motion court's reliance...