Masillo v. Stage

• Decision Date: 24 March 2011
• Parties: Mary MASILLO, Plaintiff–Appellant,v.ON STAGE, LTD., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 74

921 N.Y.S.2d 20

2011 N.Y. Slip Op. 02149

Mary MASILLO, Plaintiff–Appellant,

v.ON STAGE, LTD., et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

March 24, 2011.

Taubman Kimelman & Soroka, LLP., New York (Antonette M. Milcetic of counsel), for appellant.Barry McTiernan & Moore, New York (Laurel A. Wedinger of counsel), for On Stage, Ltd., respondent.Eustace & Marquez, White Plains (Edward M. Eustace of counsel), for Queens Theatre in The Park, Inc., respondent.

LUIS A. GONZALEZ, P.J., JAMES M. CATTERSON, ROLANDO T. ACOSTA, ROSLYN H. RICHTER, and SHEILA ABDUS–SALAAM, JJ.GONZALEZ, P.J.

On April 12, 2005, plaintiff Mary Masillo, an assistant teacher, accompanied teacher Madelaine Riback and a number of other chaperones on a school field trip. They took 72 pre-kindergartners to a 10:00 a.m. puppet show at Queens Theatre in the Park (Queens Theatre), an enclosed auditorium. Plaintiff testified at her deposition that she seated her assigned children, that she proceeded to her seat, and that as she put her foot out to go down a step, the house lights went off without warning. She fell to her knees and was injured. Masillo testified that she saw an illuminated strip of lights on the front of the steps as she attempted to get up.

Plaintiff commenced the instant action against defendant Queens Theatre, the owner of the premises, and defendant On Stage Ltd., the production company that rented the theater for the show. In her complaint, she alleged that defendants were negligent in failing to maintain the premises in a reasonably safe condition due to “the lack of adequate and/or appropriate lighting” in the theater. Her bill of particulars amplified her claim, stating, “The dangerous conditions complained of herein are with respect to inadequate and/or improper lighting within the theater and/or inadequate training of the theatre personnel in turning off the ‘house’ lights while the spectators were still finding their seats.”

During discovery, Queens Theatre's managing director, Robert Kaplan, and On Stage's artistic coordinator, Joan Lavin, were deposed. Kaplan testified that the regular practice with respect to lighting at the theater was that an individual located in a booth above the rear seats operated the lights, and that after a brief introduction and welcome speech, the stage manager told that individual to turn down the house lights. When the house lights are turned off, the lights across the steps in the aisles automatically went on. Lavin testified that her company had used the theater for 10 to 20 years, and related the theater's common practice with respect to lighting at the commencement of her company's performances, although she was not at the performance on the date of plaintiff's accident:

“Q. In your experience when you were there, would the lights go out in the theater before everyone was seated?

A. No.

Q. That would never happen?

A. No, they wouldn't go out, they would dim, maybe.

Q. What does that mean?

A. They would be on dim; not completely black, never completely black, because there are little lights on the stairs (emphasis supplied).”

Kaplan gave the following testimony in response to plaintiff's counsel's questions:

“Q. With [an outside production company] such as the one on April 12, 2005, how does your lighting person know when to dim the lights for the show?

...

A. On Stage tells us they're ready.

Q. How do they tell you they're ready?

A. Physically tells us. There's a lady whose name I usually forget. After the counting is done, she says, “Okay, we're ready to go.” Whoever's making the speech goes on stage, makes the speech, gives out the little goodies, goes behind the curtains and the stage manager, by microphone, communicates to the lighting person, you know, houselights (sic) down, or whatever the instructions are (emphasis supplied).

Q. So your stage manager communicates to your lighting person to lower the lights?

A. Yes.”

Plaintiff's counsel then elicited the following testimony from Kaplan:

“Q. And I just want to be sure. What I said before, the dimming of the lights when the show is to begin, in a situation like on April 12, 2005, the rental situation, that's in the sole discretion of the stage manager when the lights go down? Is that your testimony, the stage manager contacts the lighting and says lower the lights?

A. We work—could I elaborate on it?

Q. Absolutely.

A. We work in support of the rental. We take direction from the renter. When they start the show, they tell us they're ready and we go forward; the procedure.

...

Q. Does anybody on the theater staff, before the lights go down, check to make sure everybody is seated?

A. No.

...

Q. [W]hen the speeches are over, it's still your stage manager telling your lighting person to go ahead and dim the lights?

A. But if Joan Lavin does the speech, she comes backstage and she'll tell our stage manager, let's go (emphasis supplied).”

Photographs were also produced in discovery that confirm the presence of black rubber strips containing approximately 10 illuminated lights across the front of each of the aisle steps.

Queens Theatre and On Stage moved separately for summary judgment. The grant of On Stage's motion is not at issue on this appeal. Queens Theatre argued that there was no defective condition on its property that was responsible for plaintiff's injuries. It contended that the theater was in compliance with all building codes and regulations for the lighting of audience areas during the presentations of plays, concerts, and other such events. It was Queens Theatre's position that despite adequate lighting “[p]laintiff simply misstepped.”

In support, Queens Theatre submitted the detailed affidavit of a licensed professional engineer, who researched the archived building records for Queens Theatre, including all renovations made after the building was constructed, and conducted tests at the premises under both daytime and nighttime performance lighting conditions to determine whether the theater was in compliance with building codes for the City of New York. The expert stated that regulation of theater illumination is governed by the Life Safety Code of the National Fire Protection Association (NFPA 101). In April 2005, when plaintiff's accident occurred, the 2003 edition of the NFPA Code (NFPA 101–2003) was in effect. It provided:

“Illumination of Means of Egress: General. In assembly occupancies, the illumination of the floors of exit access shall be at least 0.2 ft-candle during periods of performance or projections involving directed light” (NFPA 101–2003, Section 7.8.1.3[3] ).

Relying upon plaintiff's deposition testimony as to where she fell, the expert measured the lighting at the top two steps of both middle aisles, at the upper and lower limits of performance lighting, during both morning and evening performances. He found that the illumination in those locations, where plaintiff claimed to have been standing, exceeded the required 0.2 ft-candle when the house lights were turned off. This level of lighting is in compliance with the standards promulgated in the NFPA 101 Code.

Accordingly, the expert gave his opinion, with a reasonable degree of engineering certainty, that the light levels in the Queens Theatre complied with, and even exceeded, generally accepted standards (i.e., the NFPA Code) for the lighting of audience areas during the presentations of plays, concerts, and other such events, and that they were safe, adequate, and consistent with light levels required at theaters and cinemas throughout the United States.

In opposition, plaintiff stated that the actionable negligence was not inadequate lighting, but rather “negligent ... operation of the lights.” She argued that the record raised a material issue of fact as to whether someone gave a premature cue to the Queens Theatre lighting employee to turn off the lights while patrons were still being seated.

In support, plaintiff submitted an affidavit by Madelaine Riback, the aforementioned teacher. Riback was seating a group of students in another area of the theater when the lights went off, and she also fell. She stated that “[w]hile [she] was still seating the children in [her] group, the theater suddenly went completely dark,” that no announcements were made prior to turning the lights off, and that there was no flickering or gradual dimming of the lights. Riback stated that she also lost her footing on the steps of the aisle and injured her knee.

The court granted Queens Theatre's motion. It found that Queens Theatre established prima facie that there was adequate lighting in the theater, and that plaintiff failed to raise a triable issue of fact based upon the manner in which the lights were turned off. The court noted that plaintiff conceded seeing the illuminated lights on the strips of the steps after she fell. Plaintiff appeals, and we affirm.

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 others, the seriousness of the injury, and the burden of avoiding the risk” ( Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 [1976] [internal quotation marks and citations omitted] ). Landowners and tenants who operate places of public assembly, such as theaters, are similarly “charged with the duty of providing the public with a reasonably safe premises, including a safe means of ingress and egress” ( Peralta v. Henriquez, 100 N.Y.2d 139, 143–144, 760 N.Y.S.2d 741, 790 N.E.2d 1170 [2003] [internal quotation marks and citations omitted]; Knickerbocker v. Ulster Performing Arts Center, 74 A.D.3d 1526, 903 N.Y.S.2d 578 [2010] ).

As the motion court found, through the testimony of plaintiff, Lavin and Kaplan and the expert affidavit, Queens Theatre established that it provided the public with a reasonably safe premises insofar as its lighting was concerned....