Stone v. Courtyard Management Corp.

• Decision Date: 22 December 2003
• Docket Number: Docket No. 03-7112.
• Parties: Rose STONE, Plaintiff-Appellant. v. COURTYARD MANAGEMENT CORP., s/h/a Courtyard by Marriott, Inc., JEM Architectural, Inc., Bovis Lend Lease LMD, NT Dor-O-Matic New York, Inc., 866 3rd Next Generation LLC and ASR Electrical Contractors, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

353 F.3d 155

Rose STONE, Plaintiff-Appellant. v. COURTYARD MANAGEMENT CORP., s/h/a Courtyard by Marriott, Inc., JEM Architectural, Inc., Bovis Lend Lease LMD, NT Dor-O-Matic New York, Inc., 866 3rd Next Generation LLC and ASR Electrical Contractors, Defendants-Appellees.

Docket No. 03-7112.

United States Court of Appeals, Second Circuit.

Argued: September 17, 2003.

Decided: December 22, 2003.

Robert M. Ginsberg, Ginsberg & Broome, P.C., New York, NY, for Plaintiff-Appellant Rose Stone.

Paul F. Clark, Wade Clark Mulcahy, New York, NY, for Defendant-Appellee Courtyard by Marriott, Inc. and 866 3rd Next Generation LLC (David F. Tavella, of counsel, on the brief).

James Keefe, Montfort, Healy, McGuire, & Salley, Garden City, NY, for Defendant-Appellee NT Dor-O-Matic New York, Inc.

Suzanne Halbardier, Barry, McTiernan & Moore, New York, NY, for Defendant-Appellee JEM and Bovis Lend Lease

LMD (Laurel A. Wedinger, of counsel, on the brief).

Before: SACK, LEVAL, Circuit Judges, and KORMAN, District Judge.^*

KORMAN, Chief Judge.

Rose Stone alleges that she was knocked down in the doorway of a Marriott Hotel, which was located at 866 Third Avenue in Manhattan, when the Hotel's interior automatic doors closed on her while she was entering the Hotel. She appeals from the judgment of the United States District Court for the Southern District of New York granting the motion of the defendants, particularly Courtyard Management Corp., s/h/a Courtyard By Marriot, Inc. (the manager of the Hotel), 866 3rd Next Generation LLC (the owner of the Hotel), and NT Dor-O-Matic New York, Inc. (the company that manufactured and installed the doors, and repaired them when needed), for summary judgment dismissing the negligence complaint she filed against them. She does not appeal from the judgment in favor of the defendants JEM, Bovis Lend Lease LMD, and ASR Electrical Contractors.

We pass over the procedural path that led to the grant of the motion for summary judgment. Instead, we focus on the basis for the district judge's ruling. Specifically, she held (1) that there was insufficient evidence to establish a prima facie case of negligence against the defendants without resort to the inference of negligence supplied by the doctrine of res ipsa loquitur, and (2) that the evidence was insufficient to establish the exclusive control necessary to invoke that inference.

In New York, a case may be committed to the jury on the theory of res ipsa loquitur only if the plaintiff demonstrates that (1) the event was of a kind which does not ordinarily occur in the absence of someone's negligence; (2) it was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it was not due to any voluntary action or contribution on the part of plaintiff. Corcoran v. Banner Super Market, Inc., 19 N.Y.2d 425, 430, 280 N.Y.S.2d 385, 227 N.E.2d 304 (1967).

In explaining the basis for her conclusion that the element of exclusive control had not been met against 866 3rd Next Generation Hotel, LLC, and Courtyard Management Corp., the district judge wrote: "Because Dor-O-Matic performed maintenance and repair service upon the doors from time to time [the owner and manager of Marriott] cannot be held to have had exclusive control of the doors." Moreover, she continued, plaintiff "proffered no evidence to exclude the possibility that the operation of the automatic doors could have been affected adversely by the many persons passing in and out of the entrance to the Hotel every day."

Under New York law, neither of the grounds relied upon by the district judge could justify the rejection of the inference of negligence permitted by the doctrine of res ipsa loquitur. Consequently, we reverse the order granting summary judgment to 866 3rd Next Generation Hotel, LLC, and Courtyard Management Corp. (hereafter collectively "Marriott"), and NT Dor-O-Matic New York, Inc. (hereafter "Dor-O-Matic"), the entity which manufactured, installed, and repaired the automatic doors (from time to time).

We turn first to the failure of plaintiff to proffer any "evidence to exclude the possibility that the operation of the automatic doors could have been affected adversely by the many persons passing in and out of the entrance of the Hotel every day." The district judge applied the wrong standard. It was not necessary for the plaintiff to altogether eliminate the possibility of other causes of the injury-causing malfunction, but "only that their likelihood must be so reduced that the greater probability lies at defendant's door." Dermatossian v. New York City Transit Auth., 67 N.Y.2d 219, 227, 501 N.Y.S.2d 784, 492 N.E.2d 1200 (1986) (quoting 2 Harper and James, Torts § 19.7, at 1086). Plaintiff claimed that the mechanisms that would have necessarily failed, if the accident occurred as alleged, were the control box, the motor that operated the door, the motion detector, or the presence sensor. The district judge appeared to accept for the purposes of her opinion that each of these mechanisms was inaccessible to members of the public. Our view of the record here persuades us that, as between Marriott and the many persons passing in and out of the entrance to the Hotel every day without access to these mechanisms, "the greater probability [of responsibility for the alleged malfunction] lies at defendant's door." Id. The reason is that, as the Appellate Division has observed, "[t]he appropriate target of inquiry is whether the broken component itself was generally handled by the public, not whether the public used the larger object to which the defective piece was attached." Pavon v. Rudin, 254 A.D.2d 143, 146, 679 N.Y.S.2d 27 (N.Y.App.Div. 1998).

This case is distinguishable from Dermatossian v. New York City Transit Authority, 67 N.Y.2d 219, 227, 501 N.Y.S.2d 784, 492 N.E.2d 1200 (1986), upon which the district judge relied. The plaintiff there was injured when he struck his head on a defective grab handle as he stood up to get off a bus operated by the defendant. "The grab handle, according to plaintiff, projected straight down from the ceiling of the bus instead of at the customary angle of about 45 degrees." 67 N.Y.2d at 221 n. 2, 501 N.Y.S.2d 784, 492 N.E.2d 1200. In holding that plaintiff had failed to establish the exclusive control of the grab handle by the defendant so as "to fairly rule out the chance that the defect in the handle was caused by some agency other than defendant's negligence," the Court of Appeals wrote that "[t]he proof did not adequately exclude the chance that the handle had been damaged by one or more of defendant's passengers who were invited to use it." Id. at 228, 501 N.Y.S.2d 784, 492 N.E.2d 1200 (emphases added). The "crucial fact" was that the handle was "continuously available for use by the defendant's passengers." Id. Unlike the grab handle, which the public was invited to use, the public did not "generally handle" the motor, micro-processor, sensors, or control box at issue in this case, each of which was either embedded in doorframes or otherwise out of the public's normal reach as they passed through the open doors. These circumstances fairly and adequately exclude the chance that a person passing through the entrance caused the damage so as to lay greater probability for the malfunction at Marriott's door.

At oral argument, Marriott claimed that the mechanism for one or both of the safety beams was in fact accessible to the public. It relied on a report by a Dor-O-Matic expert that described the doors as follows:

The automatic doors installed at Marriott Courtyard are a pair of Astro-Slide-bi-parting outside slide doors with a door opening of 6' wide by 8' high. The doors are operated by a D.C. torque motor controlled by a micro processor-type control. The sensing and safety devices consist of 2 two-way motion detectors one on each side of the header or transom bar containing the operating mechanism. They are microwave motion detectors. There are two safety beams consisting of two infrared transmitters and two infrared receivers mounted in the styles [sic] of the fixed panels at 22" high and 54" high. An active infrared presence sensor is mounted on the underside of the header projecting down covering the door opening on each side of the sliding door path and the full width of door opening on each side of the sliding door path and the full width of door opening. There is a time delay setting which is adjustable in the control box that allows the doors to stay open after a person has exited the detection zones. (emphasis added).

Marriott argued that the public could "jostle the doors" or "bang the doors," thereby causing a failure in one or both of the safety beams that are mounted in the stiles. A stile is "one of the vertical members in a frame or panel into which secondary members are fitted." Merriam-Webster's Collegiate Dictionary (10th ed.1996). We assume from the description above that the mechanism for the safety beams was fitted into the door frames. The evidence suggests no reasonable likelihood that the safety beams were damaged in the manner Marriott posits. Nor does this possibility affect our conclusion that, as between Marriott and the members of the public passing through the doors, Marriott was in exclusive control of them.

We turn next to the district judge's holding that, "[b]ecause Dor-O-Matic performed maintenance and repair service upon the doors from time to time [Marriott] cannot be held to have had exclusive control of the doors." Under New York law, "[i]t is not necessary for the application of the res ipsa loquitur doctrine that there be but a single person in control of that which caused the damage." Schroeder v. City and County Sav. Bank of Albany, 293 N.Y. 370, 374, 57 N.E.2d 57 (1944). This is because exclusive control is not a rigid concept; rather, it is "subordinated to its general purpose, that of indicating that it probably was the defendant's negligence...