Jones v. Presbyterian Hospital

3 A.D.3d 225, 771 N.Y.S.2d 109, 2004 N.Y. App. Div. LEXIS 657

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 2004
• Status: Published

Opinions

OPINION OF THE COURT

Marlow, J.

In this personal injury action, plaintiff allegedly fell while descending two steps in an auditorium owned and operated by defendants. The two stairs led from the last row of seats, where plaintiff had been sitting, down to a central aisle. Plaintiff had been to the auditorium somewhere between 5 and 10 times prior to the accident. Although plaintiff testified that he cannot recall exactly where he sat in the auditorium on those prior occasions, it is undisputed that he ascended the two steps and sat down only a few minutes before he got back up to leave. No one left the row before plaintiff did, but he was conscious of the fact that his row was higher than the aisle and he remembered that he had to make a descent. Plaintiff’s sole claim is that he thought there was only one step, rather than two, because: (1) he forgot about the “middle” step; and (2) even though he was looking down, it appeared to him to be only one step, since the stairs were covered with the same carpeting as the seat platform and aisle.

We find, as a matter of law, that the stairs did not pose a reasonably foreseeable hazard, and thus the open and obvious doctrine, invoked by the IAS court, is irrelevant (see Schurr v Port Auth. of N.Y. & N.J., 307 AD2d 837 [2003]; Hyman v Queens County Bancorp, 307 AD2d 984 [2003]; see also Cupo v Karfunkel, 1 AD3d 48, 52 [2003] [“We do not suggest that a court is precluded from granting summary judgment to a landowner on the ground that the condition complained of by the plaintiff was both open and obvious and, as a matter of law, was not inherently dangerous” (emphasis omitted)]). There is no claim that the stairs were structurally unsafe, no claim that some debris on them caused plaintiff to fall, and no claim that the carpeting was tattered in a way that snagged his foot. Nor does plaintiff complain of the adequacy of the lighting in the auditorium. He does not even argue that he was unaware he had to step down from his row to the aisle.

* Rather, he effectively claims that he miscalculated the number of steps he had to descend. Thus, this case is legally indistinguishable from Schurr (supra), in which the plaintiff allegedly tripped and fell while descending the steps of a motionless escalator, which loss of footing she attributed to the uneven spacing of the stopped escalator’s risers. As we noted there, the plaintiff herself recognized that the decrease in riser height at the bottom of an escalator is a condition found on all escalators, moving and stationary, and the defendants “were under no duty to warn of or otherwise protect plaintiff from a condition that posed no reasonably foreseeable hazard” (id. at 838 [emphasis added]; see also Borra v Walden Books, 298 AD2d 542 [2002]; Fabian v Sunbury Footaction, 292 AD2d 340 [2002]). As with all owners of property with staircases, these defendants had no obligation to warn plaintiff of the precise number of steps separating the two levels.

Plaintiff argues that, even if there were no duty to warn, defendants still had a duty to maintain the premises in a reasonably safe condition. However, the “remedies” plaintiff posits are in reality warnings nonetheless, namely, placing illumination or other markings on the stairs or covering them with carpeting with a design different from the seat row and aisle. Such adjustments, of course, do not eliminate the stairs, the very fixture of which plaintiff admittedly was conscious and admittedly was watching when he says he fell. In any event, under these particular circumstances it would be sheer speculation for a jury to find that the proposed “remedies’Ywarnings would have prevented this plaintiff from falling (see Hyman, 307 AD2d at 986-987). According to plaintiff’s consulting engineer, some sort of distinguishing markings should have been placed on the stairs to advise patrons of the existence of the steps. However, plaintiff does not dispute that he was already aware of the existence of stairs. Indeed, even plaintiffs expert does not propose that each step be marked in a manner to differentiate it from every other. Thus, plaintiff has failed to demonstrate an issue of fact whether the lack of certain markings proximately caused his fall (see Manton v Summit, 288 AD2d 155 [2001]). In fact, just as in Hyman (supra), the record conclusively demonstrates it did not (see Gonzalez v Fastflex, Inc., 270 AD2d 229 [2000]).

To the extent plaintiffs expert opined that the “short flight” stairway should have been somehow removed, that opinion was based solely on the New York State Uniform Fire Prevention and Building Code (9 NYCRR 765.4 [a] [4], [10]), which is inapplicable since it pertains only to fire exit stairs. Moreover, the auditorium was constructed in 1961, well before the promulgation of the regulation, and is therefore not subject to its provisions. Finally, plaintiff cites no other formal, applicable standard which these stairs violated (see Hyman, 307 AD2d at 986-987).

Accordingly, the order of the Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 8, 2002, which, to the extent appealed from as limited by the briefs, granted defendant-respondent’s motion for summary judgment dismissing the complaint as against it, should be affirmed, without costs.

There is no evidence in the record that plaintiff suffered from a general condition of severe memory loss, and I decline to adopt the dissent’s per se rule that septuagenarians are subject to poor memory, a sentiment with which at least some members of this Court and others perhaps might take issue.