Gilson v. Metropolitan Opera

• Decision Date: 11 January 2005
• Docket Number: 4346.
• Citation: 788 N.Y.S.2d 342,15 A.D.3d 55,2005 NY Slip Op 00099
• Parties: ESTELLE GILSON et al., Respondents, v. METROPOLITAN OPERA, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

15 A.D.3d 55

788 N.Y.S.2d 342

2005 NY Slip Op 00099

ESTELLE GILSON et al., Respondents, v. METROPOLITAN OPERA, Appellant, et al., Defendants.

4346.

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

January 11, 2005.

Appeal from an order of the Supreme Court, Bronx County (Janice L. Bowman, J.), entered on or about April 21, 2004. The order, insofar as appealed from, denied defendants' motion for summary judgment dismissing the complaint against defendant-appellant.

McCabe, Collins, McGeough & Fowler, LLP, Mineola (Patrick M. Murphy of counsel), for appellant.

Law Offices of John C. Dearie & Associates, New York City (Timothy F.X. Jones of counsel), for respondents.

OPINION OF THE COURT

SAXE, J.P.

When a disabled opera patron, experiencing physical difficulty in maneuvering into his seat in the darkened opera house, falls into another patron, knocking her down and causing her injuries, regardless of how unfortunate the accident and its consequences may be, the injured audience member does not have a viable negligence claim against the opera house, in the absence of some breach of duty not present here. The claim that the house staff was negligent in permitting the patron to take his seat without an escort, or after the house lights went down, cannot stand insofar as the opera house has no duty to provide such an escort. Although the Metropolitan Opera has enacted a house rule that prohibits audience members from being seated after the house lights have gone down, this rule cannot breathe life into plaintiff's claim by creating a duty, regardless of whether we view the rule as one of etiquette or one of safety.

The asserted facts are these: On December 3, 2001, plaintiff Estelle Gilson and a friend attended a performance at the Metropolitan Opera House at Lincoln Center. Mrs. Gilson was seated in an aisle seat in the dress circle, row E. A couple, defendant Taitt and his wife, was seated inside the row, past Mrs. Gilson's seat.

During an approximately 20-minute intermission, all the individuals involved left their seats. Plaintiff and her friend returned to their seats when the signal bells sounded, and thereafter the house lights went down in preparation for the second act. However, the Taitts did not return to their seats until after the music for the second act had already begun, which, according to plaintiff's estimation, was about 10 minutes into the second act.

The Taitts returned in the darkened auditorium, without any escort or assistance by ushers. Plaintiff got out of her seat and stepped into the aisle and down a step in order to give them room to pass, and Mrs. Taitt tried to assist her husband toward his seat. Mr. Taitt, who seemed to Mrs. Gilson to be rigid, unsteady, and unable to move his arms, lost his balance and fell into plaintiff, who fell down the stairs, striking various portions of her body on the balustrade or the wall at the bottom of the stairs.

Plaintiffs' complaint as against defendant Lincoln Center was dismissed as a claim against an out-of-possession lessor without a right of re-entry. However, the IAS court denied summary judgment on the claim against the Metropolitan Opera, reasoning that there were questions of fact "including, but not limited to whether defendant maintained the stair aisles in a dangerous manner thereby causing a dangerous condition which caused the plaintiff's accident." We reverse, concluding that accepting the facts as alleged and all possible inference that may be made in plaintiffs' favor, there is no basis for a viable claim of negligence.

In essence, the claims brought by Mrs. Gilson and her husband against the Metropolitan Opera are primarily that its staff members were negligent in allowing Mr. Taitt to return to his seat after the performance had resumed, without an escort or a flashlight to light his way, when the aisle lighting was too dim. This claim is supported by a portion of the Metropolitan Opera's "Performance Staff Rules and Guidelines" indicating that patrons will not be seated once the performance begins. Plaintiffs also rely upon an affidavit by a licensed engineer, who asserts that he visited the opera house some two years after the accident, at which time he measured the amount of light on the aisle stairway and found it to be less than two footcandles, in violation of the New York City Building Code; he further asserts that at that visit, he found that the yellow edges of the steps were not visible when the house lights were down. He alleges that the conditions he found violated Building Code (Administrative Code of City of NY) §§ 27-127, 27-128, 27-381, 27-540 and 27-541.

The dissent emphasizes that issues of fact exist as to whether house staff at the Metropolitan Opera were aware that this apparently infirm patron was returning to his seat after the hall had been darkened and the performance had begun. However, issues of fact only preclude summary judgment when they are material to deciding the matter. Even though we cannot make a finding of fact at this juncture as to whether house staff at the Metropolitan Opera permitted Mr. Taitt and his wife to enter the auditorium and return to his seat unattended by an usher after the performance had begun, the resolution of this point is irrelevant for purposes of this negligence claim against the Metropolitan Opera. The factual assertions, taken together, with all possible inferences in plaintiffs' favor, do not present a basis for a proper finding of negligence against the opera house.

The assertion that an infirm individual, escorted by a spouse or companion, was not shown to his seat by an usher, does not state a breach of any common-law duty owed to its patrons by the opera house, in the absence of some specially created duty not present here. That the house lights were down at the time does not create any such duty. Nor does the existence of a "house rule" precluding patrons from being seated after the theater is darkened.

Initially, Metropolitan Opera's "Performance Staff Rules and Guidelines" cannot be relied upon to establish the standard of conduct by which defendant's staff must be judged. The provision directing staff not to admit audience members once the house lights have gone down and the performance has begun is simply a guideline promulgated by the organization for the benefit of performers and the seated members of the audience, to protect them from being disturbed during the performance. While one portion of the pamphlet refers to the safety of patrons, it merely states,

"For reasons of safety and because no one is seated once the...