Njewadda v. Showtime Networks, Inc.

• Decision Date: 29 January 2019
• Docket Number: 450301/15
• Citation: 63 Misc.3d 256,93 N.Y.S.3d 813
• Parties: Ajanaffy NJEWADDA, Plaintiff, v. SHOWTIME NETWORKS, INC., New York City Transit Authority, CBS Outdoor Americas, Inc., The Metropolitan Transit Authority and The City of New York, Defendants.
• Court: New York Supreme Court

63 Misc.3d 256

93 N.Y.S.3d 813

Ajanaffy NJEWADDA, Plaintiff,

v.SHOWTIME NETWORKS, INC., New York City Transit Authority, CBS Outdoor Americas, Inc., The Metropolitan Transit Authority and The City of New York, Defendants.

450301/15

Supreme Court, New York County, New York.

Decided January 29, 2019

Plaintiff was represented by Rehan Nazrali, Esq., Jackson Heights, 646-331-9378

Respondent was represented by Katina Despas-Barous, Esq., Melcer Newman, PLLC, New York, Tel: 212-980-8470

Shlomo S. Hagler, J.

In this personal injury action, defendants Showtime Networks, Inc. ("Showtime"), New York City Transit Authority ("NYCTA"), CBS Outdoor Americas, Inc. ("CBS"), and The Metropolitan Transit Authority ("MTA") (collectively, the "defendants") move pursuant to CPLR 3211(a)(7), to dismiss the complaint for failure to state a cause of action.¹

BACKGROUND FACTS

This is an action by plaintiff Ajanaffy Njewadda to recover damages for personal injuries arising out of an accident that occurred on June 20, 2013. In the Verified Complaint (the "Complaint") plaintiff alleges that after going through turnstiles located in the New York City Grand Central subway station, at the "S shuttle", she was descending stairs and became concerned about the whereabouts of her husband (Complaint ¶ 27). Plaintiff further alleges

"[t]hat she turned around and attempted to ascend the staircase to ascertain his whereabouts, when she saw and was confronted with, under the steps thereto, a semi sub-merged but dramatically oversized photograph, poster and or wrap-around advertisement of the actor Michael C. Hall, who portrays himself as DEXTER, a Showtime series about a serial killer[;] [t]hat the photograph, extending the full length of the steps from the top of the platform to the bottom, depicted a shocking, and menacing face of a Caucasian man (DEXTER) exhibiting an expression of fear or shock and was covered, draped or enwrapped in cellophane/plastic wrap [ (the "Dexter Advertisement") ][;] [t]hat the sight of [the] photograph startled, shocked and overwhelmed [p]laintiff causing her to panic and become fearful, which fright, fear and anxiety caused her to panic and lose her balance on the steps resulting in her falling down the steps to the bottom thereof" (Complaint, ¶¶ 28-30).

Plaintiff maintains that as a result of her fall, she suffered injuries to her right foot and ankle.

The Complaint

Plaintiff alleges causes of action against Showtime for intentionally and negligently "creating or producing and thereafter placing a tripping and or falling hazard in and or on or about a common public walkway thereby creating and or causing a dangerous condition for pedestrians" [First and Second Causes of Action], and negligence as against defendants NYCTA, CBS, and the MTA [Third, Fourth and Fifth Causes of Action].

Showtime

The Complaint alleges Showtime creates, designs and authorizes the placement of its advertisements, including the Dexter Advertisement, under the subject subway stairs. Showtime allegedly hired CBS to promote its program, "Dexter," through a series of ads, one of which allegedly panicked plaintiff. Plaintiff alleges that Showtime's decision to promote the program in such a provocative and shocking manner made Showtime liable for plaintiff's resultant injuries. As such, plaintiff alleges that Showtime intentionally and negligently created a dangerous tripping and falling hazardous condition by placing the subject "disturbing, provocative, shocking and fear inducing advertisement of Dexter at or under or on the subject subway stairs," which was a proximate cause of plaintiff's accident resulting in her injuries (Complaint, ¶¶ 36-38).

NYCTA and the MTA

According to plaintiff, both MTA and NYCTA were responsible for operating and managing the subject premises. Plaintiff contends that NYCTA breached its duty to maintain the stairway in a safe and hazard-free condition by permitting Showtime to place the dangerous and hazardous Dexter Advertisement under the subject subway stairs,² that NYCTA and the MTA had actual and constructive notice of said condition and that said breach was a proximate cause of plaintiff's accident (Complaint ¶¶ 54-60, 80-85).

CBS

Plaintiff argues that CBS contracted with the other defendants to place the Dexter Advertisement, and thereby had a duty to ensure that such advertisement was hazard-free. Plaintiff alleges that CBS was negligent in the placement of the Dexter Advertisement, that CBS had actual or constructive notice of said condition and that the negligent placement of the Dexter Advertisement was a proximate cause of plaintiff's accident (Complaint ¶¶ 66-73).

Plaintiff's Deposition

At her deposition,³ plaintiff testified that she was in Grand Central Station with her husband when she swiped her Metrocard and descended down the subject stairs. Realizing that her husband was not with her, she turned around on approximately the third stair from the bottom and proceeded to ascend the stairs to find her husband. Plaintiff testified:

"Q. After you turned around, what happened exactly?

A. So when I turned around and started moving up I saw the picture and got scared. It didn't even look like a picture. I thought it was a person.

Q. After you got scared, what happened?

A. I screamed

Q. After you screamed, what happened?

A. I fell. What should I do?

When I screamed I fell.

Q. Was there anything on the stairway itself that caused you to fall; a newspaper, a wet substance, something else?

A. It was clean. There was nothing on the steps.⁴

Q. Ma'am, are you claiming that your fall was caused by the scary picture?

A. Yes (Deposition tr at 49-50).

Q. What portion of the face [depicted in the photograph under the stairs] did you see immediately before your fall?

A. The eyes.

Q. What is about the photograph that scared you.

A. The photograph itself scared me.

Q. Something about the photograph, its characteristics that scared you?

A. The eyes.

Q. What characteristics from those eyes scared you and caused your fall?

A. Something scary. It is just scary (Deposition tr at 51-52).

Q. After you saw it, you testified that you fell; do you recall what portion of your body impacted the ground first?

A. I cannot recall which part of my body fell first. All I remember is that I fell. My feet started hurting (Deposition tr at 52).

Q. Ma'am, aside from the scary eyes, did you see any portion of the face before you fell?

A. Yes, the face. When I saw the eyes and got scared, I had my eyes wide open. And I saw the face. That was before I fell (Deposition at 53).

Q. My question is, ma'am: As you sit here today, do you claim that the sole reason for your fall was the scary eyes and face?⁵

A. Yes" (Deposition tr at 54).⁶

Defendants' Arguments

Defendants move pursuant to CPLR 3211(a)(7) on grounds that plaintiff has failed to state a cause of action. Defendants argue that plaintiff's reaction to an advertisement is an unforeseeable act which does not impose liability on any of the defendants herein given that an action based on fear induced by an advertisement is not cognizable in New York. Defendants maintain that plaintiff herself admitted that the subject stairway was free of defects and that her fall was not caused by inadequate maintenance of the stairway. Defendants argue they had no duty to protect plaintiff from the Dexter Advertisement and that plaintiff was responsible for her own fall. In addition, defendants contend they had no notice of a hazardous condition upon the stairway, and that defendants did not cause or create a defective or dangerous condition.

Moreover, defendants maintain that the MTA is not liable on the basis that the function of the MTA does not include the operation, maintenance, and control of a facility, and Showtime and CBS owed no duty to plaintiff to maintain the subject stairway. Defendants argue that Showtime cannot be held negligent for creating, designing, preparing or authorizing its advertisements or contracting with any of the defendants. Likewise, even assuming that CBS contracted with Showtime in order to advertise a television show, CBS is not liable for plaintiff's fall.

Plaintiff's opposition

Plaintiff alleges that "defendants induced her fall and that it was the [d]efendants' negligent actions, to wit the placement of the subject distracting and disturbing advertising under the subject stairs that created a trap and or falling hazard" (Plaintiff's Affirmation in Opposition, ¶ 10). Plaintiff avers that the Dexter Advertisement was a shockvertisement, and that the defendants deliberately and intentionally caused a "material alteration and "transformation" that introduced, for a foreseeable class of persons traversing [the subject stairs] an ocular trap and viewing hazard sufficient to induce a shock-related fall" (Plaintiff's Affirmation in Opposition, ¶ 20). Plaintiff concedes that there is no duty to protect or warn against an open and obvious condition, but that here, it is foreseeable that a person traversing the stairs with an ocular distraction, who then turns and swivels, would become shocked or frightened by a shockvertisement, causing a fall (Plaintiff's Affirmation in Opposition, ¶ 96).

Plaintiff further supports her negligence cause of action by alleging that

"it was the combined concatenation of interrelated elements of the defendants' deliberate actions, which standing alone, might not individually give rise to liability, but put together in the logical chain of events as they were, exposed [p]laintiff to a startling event in a sensitive and precarious location, a subway stairs, a well known and established situs for hazardous pedestrian and or user falls of various types, and thus defendants in their various interrelated capacities had a duty to avoid and or prevent such hazardous fall in fact and in law and by failing to do so were negligent" (Plaintiff's Affirmation in Opposition, ¶ 22).

Plaintiff makes reference to the Dexter Advertisement as "a large, deliberately oversize wraparound and dramatically distorted poster...