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The Rogak Report: 01 Sept 2006 ** Slip & Fall - Constructive Notice **

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  • Lawrence Rogak
    Message 1 of 1 , Sep 1, 2006


      Supreme Court, Bronx County

      Taquana Jones and Willie Fuller, Plaintiffs,


      AMC Bay Plaza Cinema 13, AMC Entertainment Inc., American Multi- Cinema, Inc. and American Multi-Cinema Inc., d/b/a AMC Bay Plaza Cinema 13, Defendants.

      Index No. 6095/2004

      This suit arose out of injuries sustained by plaintiff on November 9, 2002 between 4:00 and 4:30 P.M. at defendants' movie theater, Bay Plaza Cinema, located at 2210 Bartow Avenue in Bronx County, when she slipped and fell on an alleged greasy substance and/or popcorn and candy while she was walking down an aisle close to the movie theater screen. Plaintiff walked into the theater to see "Eight Mile" while previews were in progress. She entered the theater with her daughter, a friend named Nicole Dixon, and Ms. Dixon's daughter, through the rear door of the theater. They proceeded down the ramp on the right hand side of the theater and when she reached the aisle in front of the theater, she turned to her left, walked across the front aisle of the theater and while she was making a left turn to the opposite side of the theater, she slipped and fell. Plaintiff's intention was to sit in the empty seats she observed in the fourth or fifth row of the theater. Her friend, friend's daughter, and her own daughter were walking ahead of her when she slipped and fell.

      Plaintiff testified at her deposition that she did not see what caused her to fall because she was looking "straight ahead."  She testified that she heard a security guard call for someone to mop the floor after she fell  and she heard one of the ambulance workers state that the floor was slippery in the area.

      Defendants contended that summary judgment should be granted in their favor because the plaintiff cannot establish that the defendant had actual or constructive notice of the condition which caused plaintiff to fall.

      The General Manager of defendants' theater testified that the ushers were responsible for cleaning the auditorium between shows. The ushers would sweep and mop "as time permits." He testified that there were four or five showings in that theater of the movie "Eight Mile" on the day of plaintiff's fall and that the showing plaintiff attended was a "sold out performance."  He also testified that he did not know how many ushers worked in the particular auditorium in which plaintiff fell on the day of the incident nor did he have any specific documentation indicating what ushers worked in the auditorium on that day.  He testified that the cleaning procedure was to pick up the dry debris and mark with "Booster Buddies, which are kids' seats" any areas that needed to be mopped.  He testified that the theater had been cleaned because the patrons are not permitted into the theater until the cleaning is completed.  He filled out an accident report after plaintiff's fall. He did not receive any complaints from anyone about slippery substances on the floor.

      The manager further testified at his deposition that there are lights in the ceiling of the movie theater and the standard procedure is that "...the lighting is in three levels. It goes down to the second level during previews; however, it is a sold-out performance, so we can assist in sitting, we leave the lights up full so it would be the same as you first walked into the theater."  Moreover, once the movie is playing, he states that there is "ambient lighting" and "aisle lighting." 

      Plaintiff opposed the motion and asserted that there were issues of fact as to whether the defendants had constructive notice of the slippery substance and/or popcorn and candy on the floor which caused plaintiff's fall and that there are issues of fact as to whether inadequate lighting in the theater was responsible for plaintiff's accident. Plaintiff cited to Kelsey v. Port Auth. of New York, 52 AD2d 801 (1st Dept. 1976), wherein the plaintiff had observed debris on a stairwell the first time she descended and on her second descent, some fifteen to twenty minutes later, she stepped on something that caused her to fall. The court there found that there was constructive notice to the defendant.

      In support of her motion, plaintiff submitted an affidavit wherein she asserted for the first time that when she entered the theater, "It took me approximately "ten to fifteen minutes, to get from the back of the theater, to the aisle in the front, where my accident occurred. There was a crowd of people in the aisle, who were moving slowly, in front of me as I walked from the back of the theater, to the front of the theater."  Plaintiff further contended in her affidavit that she does not know how long the greasy substance, and/or popcorn candy had been on the floor prior to her fall but "One can reasonably surmise that such substance had been on the floor, for at least ten to fifteen minutes prior to the time I fell."

      Moreover, in her affidavit attached to the motion papers, plaintiff asserted that the lighting in the theater was "dim" at the time of the occurrence and that the "lack of adequate lighting" prevented her from seeing anything on the floor as she walked from the back of the theater to the front of the theater. Plaintiff states in her affidavit that she did not mention during her deposition testimony that it took her ten to fifteen minutes to get from the back of the theater to the front of her theater because "defense counsel asked only a few questions concerning the amount of time that I had been in the theater before I fell, and I did not give responsive answers to those questions. And, defense counsel did not ask any follow up questions on that point."  Plaintiff further stated that she did not, during her deposition testimony, testify that the lighting in the theater was " so bad that I could not see any substances on the floor before I fell" because defense counsel never asked her if the "dim lighting" in the theater prevented her from seeing the floor. As such, plaintiff asserts that her statements concerning the lighting "in no way" contradict her deposition testimony.

      In reply, defendants argued that fifteen minutes is inadequate as a matter of law to establish constructive notice. Defendants cite to more recent Court of Appeals and appellate decisions which found that thirty minutes or even fifty minutes were inadequate to establish constructive notice. (Negri v. Stop & Shop, 65 NY2d 625 (1985); Jackson v. Board of Ed., 30 AD3d 57 (1st Dept. 2006). Moreover, defendants asserted that plaintiff's argument with respect to constructive notice is not supported by the facts in that plaintiff was asked at her deposition to indicate how long she was in the theater before her accident occurred. However, plaintiff never mentioned that it took her ten to fifteen minutes to get from the door in the back of the theater to the front of the theater.

      Furthermore, with respect to the lighting, defendants, in reply, cited to Gilson v. Metropolitan Opera, 15 AD3d 55 (1st Dept. 2005) and state that a theater does not have an unlimited duty to provide lighting or assistance once the house lights have been lowered for purposes of the performance. Moreover, defendants assert that it is common knowledge that lights must be dimmed to show a movie and there is no proof that the condition of the lighting was a proximate cause of the plaintiff's accident. Plaintiff testified at her deposition that before the accident, the theater was "dim, because the previews were showing. It had light but not bright."  Defendants further contend that there is no proof that lighting played a role in the occurrence of the accident and no proof that plaintiff would have seen the slippery substance even if the theater was fully lit because the plaintiff testified at her deposition that she was looking straight ahead when she was walking and not down at the floor.

      Defendants' contention was that the two issues raised in plaintiff's affidavit were constructed for the purpose of opposing the summary judgment motion.

      "It is well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue," ruled the Court, citing Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). "To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor...and he must do so by tender of evidentiary proof in admissible form." Friends of Animals, Inc. v. Associated Fur Manuf., Inc., 46 NY2d 1065 (1979). Once the movant has made this showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v. Prospect Hospital, 68 NY2d 320 (1986).

      In a "slip and fall" case, "a plaintiff must establish that the defendant created the condition that caused the accident or had actual or constructive notice of the condition." See, Gordon v. American Museum of Natural History, 67 NY2d 836 (1986); see also, Mullin v. 100 Church LLC, 12 AD3d 263 (1st Dept. 2004). "In this case, this court finds that defendants have met their burden that they did not have notice of the slippery condition at the movie theater."

      "Defendants established, and plaintiff did not refute, that the theater was cleaned prior to the start of the movie that plaintiff went to see. Plaintiff's contention is that the condition existed for at least fifteen minutes, which was the time that it took her to get from the back of the theater to the front of the theater, and that time period is sufficient to establish constructive notice. However, plaintiff was asked at her deposition how long she was in the theater prior to her fall and plaintiff never mentioned that it took her ten to fifteen minutes because there was a crowd of people in the aisle. She testified that she walked in and went down the ramp to the front of the screen. She continued to recount the steps she took prior to her fall but at no point did she indicate that she stopped or waited or that it took her fifteen minutes to get to the front of the theater."

      "Moreover, plaintiff contends that lack of lighting also caused her to slip and fall. However, she never mentioned in her deposition testimony that the theater was too dark for her to see the floor. She testified in her deposition that there was light even though it was not bright and further that she never looked down on the floor, only straight ahead. Even more telling, as defendants point out, is the fact that plaintiff never raised the issue of lighting in her Bill of Particulars. These issues were raised for the first time in her affidavit in opposition to defendants' motion for summary judgment. The cases cited by plaintiff in support of her argument with respect to inadequate lighting (Schneider v. Associated Prudential Theatres, Inc., 302 NY 759 (1951) and Wilson v. Proctors Theater & Arts Center, 223 AD2d 826 (3rd Dept. 1996)) do not apply in the case at bar. Those cases involved inadequate lighting on steps which caused the plaintiffs to trip and fall. "

      "Viewing the evidence in the light most favorable to plaintiff, this court finds that there is no issue of fact which would require a trial for fact-finding resolution. Plaintiff failed to demonstrate that defendants had notice of the substance that caused her to slip and fall on the date of incident. Her deposition testimony demonstrates that none of the criteria necessary to sustain a cause of action against the defendants has been met. Her affidavit attached to the motion papers raises two issues that plaintiff did not mention in her deposition."

      "It is firmly established that a court's role is not one of resolving issues of credibility. Any inconsistencies that may exist between the deposition testimony of the plaintiff and her affidavit submitted in opposition to the summary judgment motion, generally present credibility issues for trial. See, Knepka v. Tallman, 278 AD2d 811 (4th Dept. 2000); Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999). However, it has also been established that where self-serving affidavits submitted by plaintiff in opposition clearly contradict plaintiff's own deposition testimony and can only be considered to have been tailored to avoid the consequences of her earlier testimony, they are insufficient to raise a triable issue of fact to defeat defendant's motion for summary judgment. Phillips v. Bronx Lebanon Hosp., 268 AD2d 318 (1st Dept. 2000). The court may not "weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned." Glick &Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439 (1968); see also, Weiss v. Gerard Owners Corp., 22 AD3d 406 (1st Dept. 2005). "

      "Plaintiff was asked at her deposition about the lighting conditions in the movie theater and about how long she was in the theater before her slip and fall. The issues that she raised in her affidavit submitted in opposition to defendant's motion, even though they were significant and even though the questions were asked, were never mentioned by the plaintiff in her deposition. Significantly, the issue of lighting was not even mentioned in plaintiff's Bill of Particulars. Thus, this court is left with the conclusion that the issues of lighting and her ten to fifteen minute wait, were not genuine but tailored to defeat defendants' summary judgment motion. "

      "Accordingly, defendants motion for summary judgment is granted and plaintiff's complaint is dismissed. "


      Larry Rogak

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