Caronna v Macy's E., Inc.
Annotate this CaseDecided on February 13, 2001
Supreme Court, New York County
KATHLEEN CARONNA, IGNAZIO MASSIMO CARONNA, Individually and as Father and Natural Guardian of Infant, ALESSANDRO CARONNA, Plaintiffs,
against
MACY'S EAST, INC., FEDERATED DEPARTMENT STORES, INC., MACY'S NEW YORK, INC., MACY'S NORTHEAST, INC., THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, THE NEW YORK CITY POLICE DEPARTMENT, WILLETS POINT CONTRACTING CORP., WELSBACH ELECTRIC CORP., PETROCELLI ELECTRIC CO., INC., VALMONT INDUSTRIES, INC., CRSS, INC., f/k/a C.R.S./SIRRINE, INC., and DOES 1 through 50 inclusive, Defendants.
107702/98
Joan A. Madden, J.
Motion sequence numbers 013, 014, 015, 016, 017 and 018 are consolidated herein for disposition.
Defendants the City of New York, the New York City Department of Transportation (the "DOT"), the New York City Police Department (collectively, the "City defendants"), Valmont Industries, Inc. ("Valmont"), Willets Point Contracting Corp. ("Willet Point"), Petrocelli Electric Co., Inc. ("Petrocelli") , CRSS, Inc., f/k/a C.R.S./Sirrine, Inc. ("CRSS") , and Welsbach Electric Corp.("Welsbach") move, and third-party defendant Graybar Electric Company, Inc. ("Graybar") , cross-moves, for summary judgment dismissing all claims asserted against them. The joint plaintiffs and all [*2]of the Macy's defendants oppose the motions and cross-motion, and the various movants, in the alternative, oppose certain of the motions and/or the cross-motion.
BACKGROUND
This action arises out of a tragic incident that occurred during the Macy's Thanksgiving Day Parade held on November 27, 1997, when high winds propelled the "Cat in the Hat" parade balloon into the luminaire arm of a lamppost located near the northeast corner of the intersection of West 72nd Street and Central Park West in Manhattan. It is alleged that the collision dislodged the luminaire arm, causing the arm to fall and strike some of the parade spectators, including plaintiff Kathleen Caronna, who suffered serious head injuries. Earlier in the parade, the winds also propelled a Peter Rabbit balloon into the upper portion of the lamppost.
In April 1997, seven months prior to the incident, the subject lamppost was damaged after it was struck by a sports utility vehicle. The lamppost was not replaced before the parade, and the record includes conflicting evidence as to the nature and extent of the damage to the lamppost and, specifically to the bolting mechanism of the luminaire arm, as a result of the April 1997 incident.
The lamppost had been designed and installed in connection with a public works project to renovate Central Park West and Eighth Avenue in midtown Manhattan (see, project primary contract No. THHM 508 BW-R). The City, though its DOT, designed the lamppost, modifying a Flatbush Avenue Steel design ("Flatbush design") which had been in use for some years. Modifications included the addition of decorative iron cast scrollwork underneath the upper arm of the lamppost. Pursuant to a written agreement, the City retained CRSS as the resident engineer on the project. In a separate written agreement, the City retained Willets Point as general contractor to perform certain roadway renovation and other work, including the installation and supply of lampposts on Central Park West. Willets Point subcontracted the street light portion of its contract, including the manufacturing and installation of the lamppost to Welsbach. By purchase order dated February 27, 1989, Welsbach subcontracted the development and fabrication of the lampposts to Graybar, an electrical supply house. Graybar supplied the electrical components and, in turn, retained Valmont to fabricate the lamppost using such electrical components. Welsbach installed the lampposts in July and August 1994. After the installation, the City retained Petrocelli to maintain the lampposts and lighting fixtures.
Following the incident, plaintiffs Kathleen, Ignazio and Alessandro Caronna commenced this action against the City defendants for negligence in the issuance of a parade permit and in monitoring the parade, and against defendants Macy's East, Inc., Federated Department Stores, Inc., Macy's New York, Inc., and Macy's Northeast, Inc., (collectively, "Macy's"), for negligently handling the Cat in the Hat balloon during the parade. Plaintiffs assert direct claims, and Macy's asserts cross-claims, against the City defendants and the defendant contractors for negligent design, manufacture, installation and maintenance of the lamppost, breach of express and implied warranties of fitness for [*3]intended purpose, and breach of contract and derivative claims for loss of services.
Plaintiffs Maria Clohessy, Janet Marie Keating, James Ackroyd, and Ayla Pluhar also commenced actions in this Court against the defendants based upon substantially similar factual allegations and legal theories. see, Clohessy v Macy's East, Inc., Index no.107702/98; Keating v Macy's East, Inc., Index no. 102107/99; Ackroyd v Federated Dept. Stores, Index no. 115516/98; Pluhar v Macy's East, Inc., Index no. 103755/99.[FN1] The moving defendants have also served and filed identical summary judgment motions in each of these actions. The plaintiffs in this action and in the Clohessy and Keating actions have prepared and served joint papers in opposition to the motions. Plaintiff in the Ackroyd action has adopted the joint plaintiffs' opposition.
CLAIMS AGAINST THE CITY DEFENDANTSNegligence Claims Relating to Parade
As to the joint plaintiffs' and Macy's [FN2] allegations that the Police Department negligently issued the permit for the parade and negligently allowed the parade to proceed with the parade balloons, despite reports of high winds, the City defendants argue that these claims are barred by the doctrine of governmental immunity.
At the outset, it should be noted that a municipality's issuance of a parade permit, and the monitoring of the parade itself, are rooted in the traditional governmental functions of "control over traffic regulation and public safety." See, New York County Board of the Ancient Order of Hibernians v Dinkins, 814 F Supp 358, 368 (SD NY 1993)(quoting, Shuttllesworth v Birmingham, 394 US 147, 152 (1969) ; see, also, Cox v State of New Hampshire, 312 US 569, 574 (1941)("[the] regulation of the use of streets for parades and processions is a traditional exercise of control by local government").
Regarding the City defendants' assertion of governmental immunity, where the claim is based on negligence in performing a governmental function, a municipality's previous shield of absolute immunity has been partially yielded, and, at present, a municipality may be entitled to qualified immunity depending upon the nature of the underlying act. " A distinction is drawn ... between 'discretionary' and 'ministerial' acts." Lauer v City of New York, 95 NY2d 95, 99 (2000). As the Court of Appeals recently explained:
A public employee's discretionary actsmeaning conduct involving the exercise of [*4]reasoned judgment may not result in the municipality's liability even when the conduct is negligent. By contrast, ministerial actsmeaning conduct requiring adherence to a governing rule with a compulsory result- may subject the municipal employer to liability for negligence (citation omitted).
Id.
Where a municipal employee makes a discretionary decision in connection with discharging a traditional governmental function, "a municipality may not be held liable for judgmental errors." Kenavan v City of New York, 70 NY2d 558, 569 (1987). As a corollary to this principle, it has been held that "[t]he decision whether to issue a permit is a discretionary determination and the actions of the government in such instances are immune from lawsuits." City of New York v 17 Vista Assocs., 84 NY2d 299, 307 (1994); Rottkamp v Young, 21 AD2d 373 (2d Dept 1964), affd 15 NY2d 831 (1965); Sposato v Village of Pelham, AD2d , 712 NYS2d 424 (2d Dept 2000). Thus, in this case, the discretionary decision by the Police Department to issue a parade permit does not provide a basis for the imposition of liability.
As to the decision by the Police Department official to permit the parade to proceed, a decision of this nature is based on the municipality's authority to supervise a parade, a quintessential governmental function "undertaken for the protection and safety of the public pursuant to the general police powers." Balsam v Delma Engineering Corp., 90 NY2d 966, 968 (1997). For the reasons below, this Court concludes that the decision to proceed with the parade, and to fly the balloons, despite high wind conditions, was discretionary and thus, does not provide a basis for the imposition of liability.
The record reflects that Chief James Tuller, the Police Department official responsible for determining whether the parade would proceed, conferred on the morning of the parade with other Police Department personnel and Jean McFaddin, the Macy's employee responsible for the parade, regarding safety issues, including what effect the high wind conditions would have on the parade balloons (see, Tuller, Jul. 27, 1999, dep. tr. at 11 ; Tuller, Oct. 28, 1999, dep. tr. at 337 ). During the meeting, Ms. McFaddin assured Chief Tuller that the Macy's employees were well able to handle the balloons in the high wind conditions then prevailing and had been handling balloons for many years (see, Tuller, Jul. 27, 1999, dep. tr. at 46; Tuller, Oct. 28, 1999, dep. tr. at 339). Based upon this discussion and his assessment of the situation, Chief Tuller in his discretion determined that it was safe for the parade to proceed.
Like the Fire Department in Kenavan, supra, which was held to be immune from liability for the alleged negligence of a firefighter in failing to follow certain procedures in putting out a fire, the Police Department in the instant action is not chargeable for any alleged failure of its employee "'to exercise perfect judgment in discharging the governmental function'" of using police powers vis-a-vis the parade. 70 NY2d, at 569 [*5]quoting, Harland Enters v Commander Oil Corp., 64 NY2d 708, 709 (1984). In other words, as in Kevavan, the conduct at issue here involves the "exercise of professional judgment" and does not provide a basis for liability even if, "in retrospect [such conduct] show[s] poor judgment, but judgment nonetheless." Id. This is not to suggest that the evidence establishes as a matter of law that the Police Department exercised poor judgment in permitting the parade to proceed, but only that the City is immunized when it exercises its professional judgment.
The joint plaintiffs and Macy's also argue that the City defendants are liable based on the Police Department's directing of foot traffic on the day of the parade. This argument is without merit as the City defendants did not owe plaintiffs a special duty. "[T]o sustain liability against a municipality, the duty breached must be more than a duty owing to the general public. There must exist a special relationship between the municipality and the plaintiff, resulting in the creation of a 'special duty to use due care for the benefit of particular persons or classes of persons.' " Florence v Goldberg, 44 NY2d 189, 195 (1978), quoting Motyka v City of Amsterdam, 15 NY2d 134, 139 (1965). A simple demand to stand in a certain location cannot be construed as a promise of safety. Maslowski v Kalikow & Co., 168 AD2d 265 (1st Dept 1990)(parade spectators injured while standing under bridge at defendant City's instructions); Labriola v City of New York, 129 AD2d 505 (1st Dept 1987) (fireworks spectator injured while standing on sidewalk at defendant City's instructions). Here, the joint plaintiffs and Macy's have failed to demonstrate the existence of any facts which could be interpreted as giving rise to a particular duty to protect the plaintiffs from injury, separate and apart from the City's general governmental duty to protect its citizens.[FN3]
For the foregoing reasons, the negligence claims against the City defendants related to the issuance of the permit, the decision to permit the parade to go forward, and the monitoring of the parade, must be dismissed.
Design of Lampposts
As previously indicated, the joint plaintiffs allege that strong winds drove the Cat in the Hat balloon into the luminaire arm, and that the force of the impact caused the bolts connecting the arm to the shaft to shear off and the arm to fall. The joint plaintiffs and Macy's allege that there was a design defect in the bolting mechanism which connects the luminaire arm to the shaft and in the 'screws' used in such mechanism. The defendants, [*6]other than Macy's, including the City defendants, Welsbach, and Valmont, move for summary judgment on the grounds that the bolting mechanism and the lamppost were properly designed as evidenced by the testing procedures performed to insure the lamppost was safe for its intended purpose, and that there was no causal connection between any alleged design defect and the incident. As to the screws, the defendants allege that the expert affidavits submitted in opposition to their motions fail to delineate any engineering principles to support their argument that the screws were defective, and that an examination of the bolts indicate no signs of fatigue, but only stress fractures caused by the balloon striking the arm. Additionally, the City defendants assert that as to the design, under the controlling principles of qualified immunity for government entities, that they are entitled to such immunity and, therefore, they are not liable as they used due care in adopting the design.
The joint plaintiffs and Macy's counter that the affidavits of their respective experts raise triable issues of fact as to whether the design of the lamppost was defective, including issues as to the design of the upper arm and bolting mechanism and as to whether the weight of scrollwork on the upper arm was too great. They also assert that the testing performed during the construction phase indicated that the modified lampposts did not meet the specified standards, that the failure to meet the testing criteria is evidence that the design was defective and that, based on this failure, the City defendants had, or should have had, notice that the design was defective.
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate, the absence of any material issues of fact." Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986). Once such a showing has been established, the burden shifts to the opposing parties to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which would require a trial" as to these issues. Alvarez, supra, at 324. For the reasons delineated below, the Court concludes that based on the deposition testimony, documentary evidence and expert affidavits, the City has provided evidence sufficient to demonstrate a prima facie entitlement to summary judgment as to claims of negligent design, and the joint plaintiffs and Macy's have failed to meet their burden of establishing that a triable issue of fact exists as to these claims.
It is well-settled that a municipality owes a non-delegable duty to keep its streets in a reasonable safe condition. Weiss v Fote, 7 NY2d 579, 584 (1960). However, where a claim arises out of the design of highways or their appurtenance, a municipality (or other governmental body) is entitled to qualified immunity. Under general negligence principles, a designer of an item, such as a lamppost, has a duty "to exercise a reasonable degree of care in [the] plan or design so as to avoid any unreasonable risk of harm to anyone likely to be exposed to danger when the product is used in the manner for which the product was intended." Micallef v Miehle, 39 NY2d 376, 385 (1976) (citations omitted); see also, Robinson v Reed-Prentice Div. Of Package Machinery Co., 49 NY2d [*7]471, 480 (1980). In contrast, in light of its entitlement to qualified immunity, the duty of a municipality in designing highways and their appurtenances, "is measured by the courts with consideration given to the proper limits on intrusion into the municipality's planning and decision-making functions." Friedman v State, 67 NY2d 271 (1986). Under this standard, recovery cannot be had against a municipality unless it can be shown that "due care was not exercised in the preparation of the design or no reasonable official could have adopted it." Weiss, supra, at 586.
The joint plaintiffs and Macy's assertions that the City defendants are not entitled to qualified immunity is unsupported by the record. The City defendants submit uncontroverted evidence that the lamppost was based on the Flatbush design with aesthetic modifications, including added decorative scrollwork.(see, Pierre E. Neptune, DOT deputy chief of design, division of street lighting dep. tr. at 28-29). Prior to being selected as the basic model for the lamppost, the Flatbush design lampposts had been used throughout the City of New York for at least five years, and had no history of safety problems (Affidavit of Peter Neptune, deputy chief of design, DOT, Division of Street Lighting, at 3). The DOT admittedly designed the Flatbush Avenue lamppost and its modified version, and retained approval over the final design (see, Affidavit, Peter Neptune, at 3; Neptune, dep. tr. at 25, 28). Moreover, the evidence, as outlined below, indicates that the lamppost was subjected to extensive testing prior to adoption of the final design, and that there were no reports of any significant problems with the modified version of the Flatbush lamppost until the incident at issue.
Based on the foregoing history of the design, from the planning stages to the incident, this case is easily distinguished from the precedents on which the joint plaintiffs and Macy's rely. Unlike the precedents cited in opposition, in the instant case, there is no proof that the City had actual or constructive notice of a dangerous condition resulting from a potential design defect prior to the incident at issue. See, e.g. Deringer v City of New York, 260 AD2d 305 (1st Dept 1999) (finding that there was an issue of fact regarding whether City had a longstanding plan to remove the traffic island involved in subject accident); Colegrove v County of Steuben, 216 AD2d 888 (4th Dept 1995)( jury properly held in favor of plaintiffs, who were injured in an accident resulting from the absence of guardrails, where there was evidence that the defendant County "delayed unreasonably in taking steps to correct a dangerous condition"); Flynn v Farias, 139 Misc 2d 699 (Sup Ct, NY County 1988)(evidence supported jury's finding that the City was negligent in approving bus shelter which collapsed and injured plaintiff, where such shelters had been demolished by cars at a rate of one per month during the 13 months prior to the incident involving plaintiff). In any event, as set forth below, whether measured by the ordinary negligence standard, or in the context of qualified immunity, the negligent design claims against the City defendants are legally insufficient.
In support of its prima facie case, the City defendants submit test results showing that the lamppost was tested and was found to be safe for its intended purpose. Shop [*8]drawings of the lamppost and the attachment mechanism show that bolts connect a steel plate welded to the arm with a steel plate welded to the shaft. Four bolts extend from the arm's plate through threaded bolt holes into the shaft's plate. The bolts used are four 1.00 inch long, 3/8 inch (375) diameter stainless steel "ss" caps with lock washers. In November 1990 and February 1991 "static load" tests were performed "to determine the deflection [FN4] characteristics of the pole and arm designs" of the lamppost (joint plaintiffs' Exh. Y). In these tests, different weight loads were applied to the pole and arm in vertical and horizontal directions to determine whether they could withstand certain levels of stress by measuring the amount of deflection resulting from the applied loads.
With regard to the adequacy of the testing, the City defendant rely on the expert opinion of Anthony Vecchio, a licensed professional engineer. Mr. Vecchio's affidavit is submitted by Welsbach which has been sued, inter alia, based on its role in manufacturing and installing the subject lamppost. As to the criteria used to test the lamppost, Mr. Vecchio states that:
Based upon my review of the shop drawings, the load testing and wind load calculations and the examination of the Lamppost, I ... state within a reasonable degree of engineering certainty that the design of the Lamppost was adequate and not obviously defective. The Lamppost was designed to withstand 100-mph wind. The wind load calculations show that the pole was able to withstand a 100- mph wind. The use of the 100-mph wind criterion is adequate, since this is the upper boundary of wind conditions in the New York City area. Additionally the load requirements for the shaft and the pole were also adequate. The use of a 250-pound in a vertical direction, and a 50-pound load in a horizontal direction, is well above the normally expected load to be exerted on the Lamppost [FN5]
(id, ¶ 19).
In addition, with respect to the design used to connect the luminaire arm to the pole shaft, Mr. Vecchio opines that:
[*9]
The design of the Arm Simplex (i.e. a steel plate used to bolt the luminaire arm to the pole shaft) is a common, often used design and is not obviously defective. The bolts were more than sufficient to hold the arm in place under normal, expected circumstances. ... If the Arm Simplex were not a proper design, then the Luminaire Arm would have failed well before the Cat-in-the-Hat accident
(Id., ¶ 21).
The City defendants also rely on the affidavit of Everett H. Killam, a professional engineer, who holds a PhD in engineering, who opines that the design of the lamppost is sound. He states that:
I can attest to a reasonable degree of engineering certainty that the lamppost involved in the accident at issue was sound in engineering and safe for the purpose for which it was intended. My conclusion is based on my review of the drawings, specifications, deposition testimony, discovery and other documents exchanged in this matter to date, as well as my inspections and non-destructive testing of the lamppost and its components parts, and the video footage of the accident at issue
(Killam Affidavit, ¶ 3).
With respect to the bolts used to affix the luminaire arm to the lamppost, Mr. Killam states that:
based on a reasonable degree of engineering certainty, the bolts utilized were sufficient for the purpose they were intended both in strength and design, and that they were properly designed for all foreseeable stresses to which the lamppost and luminaire arm would be expected to be exposed
(id., ¶ 6).
In addition, Mr. Killam opines that the design of lamppost, including that of the luminaire arm, was not a contributing factor in causing the accident. He states that:
The luminaire arm was struck with tremendous force, created by the mass of the huge Cat in the Hat balloon being applied to it by a gust of wind. Based upon my inspections and testing of the lamppost, the bolts remaining in the shaft, and the luminaire arm in their post-accident condition, I can attest that the luminaire arm was caused to break and fall to the ground due to the overwhelming, unanticipated force exerted by the balloon. This was evident from my unaided and microscopic examinations of the bolts and bolt hole threads. My non-destructive examination and testing of the subject lamppost and its component partes revealed that the bolts which secured the luminaire arm to the lamppost were fractured as a result of an extreme overload, not fatigue. Accordingly, I conclude with a reasonable degree of engineering certainty that there was no aspect of the design of [*10]the lamppost that contributed to the accident.
(id., ¶ 8).
Based on the foregoing evidence, the City defendants have made out a prima facie case, and the burden shifts to the joint plaintiffs and Macy's to produce competent proof that there are triable issues of fact as to the negligent design claims.
The joint plaintiffs and Macy's assert that the City defendants had notice of a defect in the luminaire arm based on a change in the deflection criteria for the lamppost, that modification adding the scrollwork rendered the lamppost defective, and that the negligent design of the lamppost was a substantial factor in causing the incident. However, as set forth below, they fail to submit probative evidence to support their theory of liability, so as to raise a triable issue of fact.
First, their argument that the testing procedure for the lamppost was flawed based on evidence that the lamppost was tested twice, and that the second time the City changed the testing criteria, is unavailing. A change in test criteria, standing alone, is not probative unless it can be established that the change is in some way related to an alleged design defect, for instance, if it was used to conceal such defect. In any event, the design defect would still need to be established. As indicated below, neither the joint plaintiffs nor Macy's provides any evidence of a design defect or evidence that the change in test criteria related to any alleged design defect.
Furthermore, the results of the November 1990 tests indicate that the luminaire arm met the testing criteria, and that after the November 1990 test, DOT requested a change in the criteria for the pole only. This is reflected in the deposition testimony of Carl Macchietto, a Senior Project engineer for Valmont, which manufactured, and participated in the testing of, the lampposts for the Central Park Project. Mr. Macchietto, on whose testimony the joint plaintiffs rely, testified that the change in the test criteria related to the lamppost pole only and not to the luminaire arm. (Macchietto dep. tr. at 50, 68).
The evidence also indicates that the original test criteria was for a shorter pole than that specified for the subject lamppost, and that the new criteria approved by DOT reflected that the load could be reduced to cause an equivalent stress in the specified taller pole.[FN6] (joint plaintiffs' Exh X, Machietto dep. tr., at 50-51). [*11]
In any event, there is no evidence that the change in the test criteria for the pole was inadequate or affected the integrity of the testing procedures regarding the strength and stability of the pole or the connecting mechanism of the luminaire arm. Furthermore, neither the joint plaintiffs' expert nor Macy's expert avers, as urged by their respective parties' counsel, that the testing procedures used were inadequate to insure the structural soundness of the subject lamppost, or the design of the bolting mechanism, or that the increased weight of the scrollwork provides a basis for their finding that the subject lamppost was deficiently designed. Notably, they fail to provide expert statements contradicting the opinion of Mr. Vecchio that the testing criteria was satisfied and that such criteria was adequate under the circumstances. Accordingly, neither the change in testing criteria nor the test results establish that the lamppost design was defective, or that the City defendants had notice of any defect.
Additionally, the joint plaintiffs' and Macy's hypothesis that the addition of scrollwork placed undue stress on the luminaire arm is unsupported by the record (Machietto, dep. tr. at 206; Edward Frisone, project manager for Welsbach; dep. tr. at 106-107 ), and is not addressed in their expert affidavits. Mr. Macchietto testified that data from the February 1991 test indicates that "the load on the arm [in the test] ... which is the one that has the arabesque scroll attached to it, has the 250 pound weight which matches closely to what the weight of the arabesque scroll is" (id., at 206).
Moreover, the shop drawings indicate that the scrollwork is under the luminaire arm and attached to the pole shaft as well as the arm. These drawings are consistent with Machietto's testimony that, "the arabesque scroll was attached to the arm and the pole. The weight is shared between the pole and the arm, the way it was attached. Also, the scroll itself acts as a brace to the arm" (id.). Neither the joint plaintiffs nor Macy's offer any probative evidence to refute this aspect of Macchietto's testimony. Thus, their argument that the scrollwork placed undue stress on the luminaire arm is unavailing.
The record does contain evidence that, during the construction phase of the project in the spring of 1993, there were various problems with the lamppost. (see, Sylvan Assocs. March 19, 1993 facsimile memorandum, plaintiffs' [joint plaintiffs' Exh AA]; March 26, 1993 DOT memorandum [FN7] [joint plaintiffs' Exh BB]; CRSS Inspector's Daily Report May 12, 1993 [joint plaintiffs' Exh FF]. The joint plaintiffs essentially argue that these memoranda, and the deposition testimony related thereto, demonstrate that these [*12]"problems," including "perceived" sagging of the luminaire arm, bowing of the pole (i.e. to have the appearance of bending), and lack of plumbness (i.e. the top of the pole did not look like it was over the base of the pole) are design defects.[FN8] Significantly, neither the expert for the joint plaintiffs or for Macy's states that the perceived sagging, bowing or lack of plumbness constitutes a design defect, or that such conditions were a substantial factor in causing the luminaire arm to fall.
Furthermore, examination of the unrefuted deposition testimony of individuals involved in the project establishes that the "problems" related to the lamppost's appearance and not its structural soundness, and particularly as to the alleged sagging of the arm, the evidence indicates that it was a question of perception (Machietto, dep. tr. at 248-249; James Coddington, project manager CRSS, dep. tr. at 27; Frisone, dep. tr. at 136-139). The evidence further demonstrates that this perceived sagging of the arm and bowing of the pole were corrected by "shimming"(i.e. placing material under the base of the pole [FN9]) and the lack of plumbness was corrected by raking (i.e. turning the base of the pole), and that these corrections were done solely to improve the appearance of the lampposts. (Machietto dep. tr. at 250; Coddington, dep. tr. at 27-28; 93-94, 143-145 ). Likewise, "deflection analysis" data indicating that the slope of the pole did not meet certain guidelines (joint plaintiffs' Exh. AA) does not relate to the structural soundness of the lampposts but only to aesthetics. (Machietto, dep. tr., at 248-249).[FN10] Indeed, the joint plaintiffs and Macy's do not argue, or provide any evidence, expert or otherwise, to the contrary.
The March 19, 1993 memorandum from Howard Bender, an employee of Sylvan Associates, to Valmont's national sales manager states that problems were apparent after the lamppost was set up in the construction yard, and that "revised calculations [should be made] due to the weight of the scroll." However, the joint plaintiffs provide no evidence to connect this statement, which was apparently made based on observations of the [*13]lamppost, with any structural problems. Furthermore, Mr. Bender's qualifications and competence to make this statement are not stated. Indeed, according to Mr. Macchietto, Mr. Bender was not an engineer, but a sales representative (Macchietto, dep. tr. at 143-144), a statement that is unrefuted. Accordingly, Mr. Bender's statement, without an expert opinion to substantiate it, is without probative value. Thus, it is clear that the evidence establishes that the problems with the lamppost during the construction phase relate to its appearance only, and do not raise a triable issue of fact regarding its design.
Likewise, the expert affidavits relied on by the joint plaintiffs and Macy's are insufficient to controvert the City defendants' prima facie showing of entitlement to summary judgment. "Under familiar rules 'one opposing a motion for summary judgment must produce evidentiary proof sufficient to require a trial of material questions of fact on which he rests his claim ... mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.'" Amatulli v. Delhi Construc. Corp., 77 NY2d 525, 533 (1991)(quoting Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). To survive summary judgment scrutiny, the expert affidavit must state an opinion, to a reasonable degree of certainty in the field at issue, that the failure to meet certain standards was a substantial factor in causing the relevant incident. See, Amatulli , supra, at 532. The expert must delineate the facts and principles underlying the opinion in a manner which permits the court to evaluate its legal sufficiency. See, generally, Tyron v Square D. Co., 275 AD2d 567, 570-571 (3d Dept 2000).
Here, for the reasons stated below, the expert opinions of Richard A. Hoffmann, submitted by the joint plaintiffs, and of Jeffrey L. Garrett, submitted by Macy's, do not meet these requirements. Mr. Hoffmann, a licensed professional engineer with a Masters of Science in Metallurgical Engineering, opines that:
upon review of the subject drawings, analyzed in conjunction with the location of the subject pole, it is apparent that the lamppost design, in its final form was inappropriate and was susceptible to failure. The use of a 90º angle upper luminaire arm that projected out over the roadway, without any additional support or ability to rotate, created an unreasonable risk of failure in the event of contact from an outside force. As such, the overall design of the lamppost deviated from accepted engineering practices. Finally, the plans and specifications with respect to the bolts used, failed to incorporate any type of locking mechanism or securing device, resulting in susceptibility to loosening over time.
(Hoffman Affidavit, ¶ ¶ 9, 10).
Mr. Hoffmann's opinion that the overall design was "inappropriate," and "susceptible to failure," and the "use of 90º angle upper luminaire arm" created "an unreasonable risk of failure in the event of contact from an outside force" is insufficient as he fails to point to competent proof, or engineering principles which support these conclusions. See, Sawyer v Dreis & Krump Manufacturing Co., 67 NY2d 328, 335 [*14](1986)(expert testimony not supported by the evidence should not be considered by the trier of fact);Amatulli , supra, at 533-534, n. 2. Furthermore, the statement that there was "an unreasonable risk of failure in the event of contact with an outside force" is offered without explanation as to the nature of the contact or outside force. One is left to speculate what an outside force means; for instance, would a kite, a baseball, or wind gusts of 50 mph qualify? As to Mr. Hoffmann's unsupported statement that the bolts lacked a locking mechanism, it is of no probative value, particularly in view of evidence to the contrary, including shop drawings showing that the bolts had steel 'ss' cap screws and lock washers.
Macy's expert, Mr. Garrett, a structural engineer, states that "to a reasonable degree of engineering certainty ... the connection between the horizontal luminaire arm and the vertical lamppost was underdesigned." (Garrett Affidavit, ¶ 2). In particular, Mr. Garrett states that:
There are two elements that primarily contributed to the lamppost being underdesigned. First, due to the geometry of the connection of the horizontal 8-foot arm to the vertical 30-foot mast that places the bolts at a 45-degree angle to the 8-foot arm, the loads are transferred to the bolts primarily through shear forces [FN11] as opposed to tensile forces [FN12]. These shear forces are considerably larger than would have existed in a design using a flat connection plate that aligned the bolts with the 8 foot arm. Second, the specified stainless steel bolts are relatively low shear and tensile strengths and should not have been used in this connection as designed
(Garrett Affidavit, ¶ 3).
Mr. Garrett further states that the bolts specified by the City "support[ ] only the weight of the 8-foot luminaire arm, the top connection screws were at 62% of ultimate capacity for shear strength. Steel industry standards would only allow the bolts to be at 41% of shear strength" (id.). Garrett then concludes that "the specified bolts were overstressed by approximately 150%" (id.).
Mr. Garrett fails to explain the probative value of his statement that "the loads transferred to the bolts primarily through shear forces as opposed to tensile forces." Nor does his opinion that "[t]hese shear forces are considerably larger than would have [*15]existed in a design using a flat connection plate," offer a meaningful explanation . His opinion, if accepted, that the shear forces are larger in the utilized design than they would have been had a flat design been used, standing alone, is meaningless. The issue is not whether shear forces are greater in the design used. The issue is whether the transfer of loads to the bolts primarily through shear forces renders the lamppost, and in particular the connection plate, unsafe for its intended use. Thus, as Mr. Garrett fails to address this issue, to the extent his opinion is based on the effect of the transfer of loads through shear forces, it is insufficient.
As to Garrett's opinion that the stainless steel bolts should not have been used, it is similarly insufficient. His opinion that the bolts did not meet industry standards fails to adequately inform the Court as to the standards upon which he relies, and thus his opinion is not probative. Amatulli , supra, at 533 (conclusory assertions in expert's affidavit as to "industry-wide knowledge" regarding the installation of swimming pools were insufficient to raise a triable issue of fact); see, also, Fallon v Clifford B. Hannay & Son, Inc., 153 AD2d 95 (3d Dept 1989). Mr. Garrett also fails to explain how he arrived at his calculations regarding the 62% capacity for shear strength or that the bolts were overstressed by 150%, nor does he indicate the weight loads he used to arrive at these calculations.
As the City defendants' expert, Mr. Killam, states:
Mr. Garrett fails to provide any engineering basis for why the bolts use were not safe and did not meet with any of the applicable standards. Although Mr. Garrett suggest that another bolt would be perhaps "better," he fails to indicate how or why. Garrett surmises that other bolts would be somehow better than the ones used, but fails to set forth any calculations to show why. As such, his affidavit is not supported by engineering principles
(Killam Affidavit, ¶ 5).
Significantly, as noted above, neither Mr. Garrett nor Mr. Hoffmann challenge the testing procedures or the sufficiency of the test criteria which establish that the lamppost, including the connecting plate of the luminaire arm, as designed was safe for its intended use. Absent a challenge to the testing procedures or criteria or other sufficient evidence establishing a design defect, the joint plaintiffs and Macy's have failed to raise a triable issue of fact.
Furthermore, both Mr. Garrett's and Mr. Hoffmann's affidavits, in addition to their insufficiency for failing to adequately delineate alleged design defects, are deficient as they are devoid of the crucial link between such defect and the incident at issue. "For there to be a recovery for injuries or damages occasioned by a defective product ... that defect must have been a substantial factor in bringing about the injury or damage... ." [*16]Amatulli, supra, at 532. While no magic words are needed to establish causation Matott v Ward, 48 NY2d 455 (1979), their expert affidavits provide no basis, other than speculation, on which it might be concluded that there is a causal relationship between any alleged design defect and the incident. Mr. Garrett's statement that "the design of the subject lamppost was defective, thereby contributing to the incident that occurred on November 27, 1998." (Garrett Affidavit, ¶ 4 ), is insufficient. Specifically absent from Mr. Garrett's affidavit is a statement that the overstressing, if such condition existed, and/or the geometry of the design, was a substantial factor in causing the arm to fall and, if so, the engineering principles underlying this conclusion. Mr. Hoffmann's statement that the lamppost's design "created an unreasonable risk of failure in the event of contact from an outside force" (Hoffmann Affidavit, ¶ 9), is patently deficient.
For the foregoing reasons, the joint plaintiffs and Macy's have failed to establish a triable question of fact as to whether the alleged design defects were a substantial factor in causing the incident. Atkinson v. County of Oneida, 59 NY2d 840 (1983 )(alleged failure of County to install warning signs and signals was not a proximate cause of a car accident); Tyron, supra, at 570-571 (unsubstantiated assertion by plaintiffs' expert that defect in circuit breaker was a substantial factor causing an explosion was insufficient to defeat defendants' summary judgment motion); Bolt v Barbosa, AD2d , 2000 WL 1878158, *2 (3d Dept 2000)(granting the defendant City summary judgment where there was no competent proof that the City's alleged failure to provide a "No Turn On Red" sign or to delineate an additional pedestrian cross walk was a substantial factor in causing the accident).
Analyzing the foregoing in the context of a municipality's entitlement to qualified immunity as to design issues, neither the joint plaintiffs nor Macy's establish that the City defendants failed to use due care in preparation of the design. Furthermore, Mr. Garrett's statements that the changes in the geometry of the design, or adding more bolts, or using a higher strength or larger diameter bolt merely proposes other design choices. Expert opinions that other design choices would have been preferable do not provide a basis for second-guessing the design choices of the City which, as in the instant case, were adopted after consideration and testing. See, Weiss, supra, at 588 ("something more than a mere choice between conflicting opinions of experts is required before the State or one of subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public"); Light v State of New York, 250 AD2d 988 (3d Dept), lv. denied, 92 NY2d 807 (1998); (testimony of claimants' expert engineers that a median barrier should have been installed at accident site insufficient to raise triable issue of fact); Monfiston v Ekelman, 248 AD2d 518 (2d Dept 1998)(opinion of expert regarding need for left-turn signal does not create a triable issue of fact).
Furthermore, under ordinary negligence standards, for the reasons stated above, even in the absence of the benefit of qualified immunity, the unsubstantiated opinions of the expert opinions submitted in opposition are insufficient to establish either that a [*17]design defect existed based on the bolting mechanism or the screws used, or that such defect, if it existed, was a substantial factor in causing the luminaire arm to fall. Accordingly, the claims against the City defendants based on the negligent design of the lamppost are without merit.
The claims for strict products liability and for breach of implied or express warranties against the City defendants in connection with its design of the lampposts are also unavailing. As the City defendants argue, they cannot be held liable in strict products liability for designing the modified Flatbush lampposts because the lampposts were not manufactured for commercial distribution, but to provide a service to the public. See, Van Iderstine v Lane Pipe Corp., 89 AD2d 459 (4th Dept 1982) appeal dismissed, 58 NY2d 610 (1983) (municipality performed a service when it designed, assembled, installed highway guardrail and thus cannot be held liable in strict liability); compare, Gielskie v State of New York, 9 NY2d 834 (1961) (state prepared, distributed antitoxin); Lindenauer v State of New York, 45 AD2d 73 (1974)(state bottled, distributed Saratoga Vichy water).
Here, the DOT designed the lampposts, then contracted to have them fabricated and installed, and then purchased the finished product. The City did not launch a marketing or advertising campaign to resell the lampposts, nor did they resell them to any member of the public. Instead, the City contracted to have the lampposts installed in City-owned sidewalks along City-owned streets. Likewise, the City defendants cannot be held liable based on the breach of any express or implied warranties because the lamppost were not sold by the City defendants. See, Van Iderstine v Lane Pipe Corp., supra, at 463. Accordingly, the claims against the City defendants for strict products liability and breach of express and implied warranties must be dismissed.
Negligent Maintenance of the Lamppost
The claims against the City defendants for negligent maintenance of the subject lamppost arise out of allegations that DOT, and its maintenance contractor, Petrocelli, failed to have the subject lamppost replaced after it was struck by the sports utility vehicle in April 1997, and failed to respond to reports that prior to the parade, bolts were missing and the luminaire arm was swaying. These claims against the City defendants are based on precedents holding that a governmental entity may be held liable for negligence, where it is made aware of a hazardous condition, and fails to correct it. See, Thompson v City of New York, 78 NY2d 682, 685 (1991); Meyer v State of New York, 51 AD2d 828 (3d Dept 1976)(holding State liable for negligent failure to maintain traffic control device).
The City defendants argue that they cannot be held liable under this theory because (i) there is no evidence that the subject lamppost was defective or hazardous as a result of improper maintenance, (ii) the City did not have notice of any such defect or hazard, and (iii) any damage to the lamppost was not a substantial factor in causing the incident, and that the force of the Cat in the Hat balloon striking the lamppost was an intervening cause that broke the chain of causation. These arguments are unavailing. [*18]
First, the evidence in the record is sufficient to raise a triable issue of fact regarding whether bolts were missing from the bolting mechanism, as stated in the testimony by non-party witnesses, or if the pole was otherwise damaged as a result of the impact of the sports utility vehicle in April 1997. It is undisputed that the lamppost was not replaced until after the incident, that is in January 1998, even though there is some evidence that the DOT and Petrocelli recognized, as early as April 30, 1997, that such replacement was needed.
Specifically, the record shows that employees of non-party Central Park Conservancy ("Park Conservancy"), a non-profit organization, which maintains Central Park pursuant to an agreement with the City, observed and reported such defects during the months leading up to the parade. (See, October 27, 1997 memorandum from a supervisor at Park Conservancy, to Vanessa James, an employee of Petrocelli, indicating that the there was damage to the top portion of the subject lamppost and requesting that it be repaired before Thanksgiving).
Norma Soto, an employee with the Park Conservancy, testified that she received three reports regarding problems with the subject lamppost during the three months before the parade. (Soto, dep. tr. at 21-26). According to Soto, the first two reports,[FN13] from Louis Johnson, a supervisor for the Park Conservancy, indicated that "the top [of the lamppost] was loose" and that "it seemed like one of the bolts was missing." (Id., at 27). The third report was from Neil Calvanese who, at the time, worked for the City's Department of Parks and was chief of operations for Central Park. Two days before the parade, Mr. Calvanese informed Ms. Soto that the pole of the subject lamppost was leaning. (Calvanese dep. tr. at 38-39; Soto dep. tr. at 131).[FN14].
As to whether the City defendants, through their agents, knew or should have known that the lamppost was in an allegedly hazardous condition prior to the parade, the record contains numerous memoranda, reports and work orders generated or received by the DOT which may be held by the trier of fact to demonstrate that the City defendants knew or should have known of the damaged sustained to the subject lamppost as the [*19]result of the sports utility vehicle collision. Moreover, the DOT retained the contractual authority to issue work orders to Petrocelli to correct defective conditions based on complaints or reports received from other City agencies, the public or "other interested parties" (DOT/Petrocelli street lighting maintenance (Manhattan) contract No. 84197MN024TR, detail specifications, general conditions, VI. work orders and repairs, [A] ).
In addition, there is evidence from which it can be inferred that employees of the City's Parks Department knew or should have known of the alleged problems with the upper part of the lamppost reported by the Park Conservancy in the months before the parade. Employees of the Park Conservancy and the Parks Department worked out of the same offices and worked together. (Calvanese, dep. tr. at 15; Soto dep. tr. at 149 ). As stated, Mr. Calvanese, of the Parks Department, reported that the lamppost was leaning two days before the parade, and urged that it be repaired. (Soto, dep. tr. at 129-131; Calvanese, dep. tr. at 15). Mr. Calvanese testified that he did not recall whether he observed, or was informed by anyone from the Parks Conservancy, that there were problems with loose bolts at the top of the lamppost. (Calvanese, dep. tr. at 36, 61). However, Ms. Soto testified that she believed that Mr Calvanese would have known about the reports submitted by Mr. Johnson that bolts were missing from the top of the pole. (Soto, dep. tr. at 148). Moreover, Kevin O'Donnell, the general foreman for street lighting maintenance at Petrocelli, testified that the City knew the pole was leaning prior to the parade, and that it needed to be replaced. (O'Donnell, dep. tr. at 163-164).
Furthermore, on the morning of the parade, some spectators testified that they observed that the luminaire arm was swaying in the wind and appeared to pose a danger to parade spectators. (Douglas Taylor, non-party witness, dep. tr. at 33-35; Kristen Ampela, non-party witness, dep. tr. at 13-17 ). This testimony raises factual issues regarding whether the allegedly hazardous nature of the subject lamppost, and the luminaire arm in particular, if such existed, should have been noticed by City employees either on the morning of, or during the period leading up to, the parade.
The City defendants' argument that defective condition resulting from the alleged failure to maintain the lamppost was not a substantial cause of the incident, as the striking of the lamppost by the Cat in the Hat balloon was, as a matter of law, an intervening event that broke the chain of causation, is without merit. For the reasons below, issues of fact exist as whether the allegedly hazardous condition of the lamppost was a substantial factor in causing the incident and plaintiffs' injuries.
Whether an event is a proximate, or legal, cause of the plaintiff's injury rests upon a variety of relevant factors unique to each case; therefore, the question is generally reserved for the trier of fact to resolve. Derdiarian v Felix Contr. Corp., 51 NY2d 308 (1980). To demonstrate a prima facie case, "the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury. . . . Plaintiff need not demonstrate, however, that the precise manner in which the accident [*20]happened, or the extent of the injuries, was foreseeable." Derdiarian v Felix Contr. Corp., supra, 51 NY2d, at 315 (citations omitted).
"In ascertaining whether the defendant's conduct constitutes a substantial factor in bringing about the harm of which the plaintiff complains, consideration should be given to (1) the aggregate number of factors involved which contribute towards the harm and the effect which each has in producing it, (2) whether the defendant has created a continuous force active up to the time of the harm, or whether the situation was acted upon by other forces for which the defendant is not responsible, and (3) the lapse of time." Mack v Altmans Stage Lighting Co., 98 AD2d 468, 470-71 (2d Dept 1984), citing Restatement [Second] of Torts § 433. Furthermore, an intervening act will be held to constitute a superseding cause serving to relieve the defendant of liability only "'when the act is of such an extraordinary nature or so attenuates defendant's [conduct] from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant.' " Mack v Altmans Stage Lighting Co., supra, 98 AD2d, at 471, quoting Kush v City of Buffalo, 59 NY2d 26, 33 (1983).
Here, there are triable issues of fact regarding whether the allegedly damaged condition of the lamppost was a substantial factor in causing the incident. In particular, the collision between the Cat in the Hat balloon and the lamppost cannot be said, as a matter of law, to be a superceding cause. The main danger associated with the negligent maintenance of a lamppost is an injury to a pedestrian. Moreover, as the lamppost was along the parade route, the balloon hitting the lamppost cannot be said, as a matter of law, to be an event "extraordinary in nature" so as to relieve the City defendants of liability. Indeed, the record suggests that the employees of the Conservancy and Mr. Calvanese sought to get the lamppost repaired before the parade in an effort to avoid an incident like the one at issue.
Accordingly, the negligent maintenance claim against the City defendants is viable.
Remaining Claims Against the City
The remaining claims against the City defendants are for negligent installation of the lamppost, and for breach of DOT's obligations under its contracts and purchase orders with the various contractors involved in the project for the provision of lampposts along Central Park West. The claim for negligent installation claim is without merit, as the undisputed record shows that the DOT was not involved in the actual installation of the subject lamppost, nor is there evidence of negligent installation. Additionally, as it is apparent that no tort duty to the public in general or to plaintiffs in particular arises out of the DOT's obligations under its contracts and purchase orders with its various contractors, the claims based on any breach of these agreements are unavailing.
CLAIMS AGAINST PETROCELLI Alleged Failure to Maintain Lamppost and Affirmative Acts of Negligence
Petrocelli seeks to dismiss the claims against it based on its alleged failure to [*21]properly maintain the lamppost in accordance with its obligations under its contract with the DOT, and on its alleged affirmative acts of negligence. The joint plaintiffs and Macy's counter that Petrocelli's contract with DOT gives rise to a tort duty of due care owed to plaintiffs who, they allege, are third-party beneficiaries of the contract, and that Petrocelli is liable for affirmative acts of negligence.
The undisputed record demonstrates that Petrocelli received notification of the sports utility vehicle collision with the lamppost soon after the collision occurred in April 1997 and, subsequently, determined that replacement of the lamppost was necessary (see, Petrocelli Apr. 30, 1997, repair report [Welsbach Exh. 29]; O'Donnell, dep. tr., at 66-67). On April 30, 1997, Petrocelli removed the traffic signals from the lamppost and installed a temporary pylon [FN15] next to the lamppost which held a steel pipe supporting temporary pedestrian and traffic control signal devices. However, the lamppost was not replaced until January 1998, several months after the incident.
While it is undisputed that Petrocelli did not replace (or repair) the lamppost before the incident, the reasons for the delay are in dispute. The record includes some evidence that Petrocelli did not request a replacement lamppost until four or five months later. Petrocelli claims that it was unable to complete repairs as no replacements were available at the time of its request. However, the City inventory records reveal that replacement pole shafts and other pieces were in stock in the end of May 1997 (see, DOT, division of street lighting inventory records, May 27, 1997, [Welsbach Exh. 27])
In general, "a contractual obligation standing alone, will impose a duty only in favor of the promisee and intended third-party beneficiaries and mere inaction, without more, establishes only an action for breach of contract." Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220, 226 (1990). Thus, it has been held that a municipal contractor is not subject to liability to the public generally. As the Court of Appeals has written, "[i]n a broad sense it is true that every [municipal] contract . . . is for the benefit of the public. More than this, however, must be shown to give a right of action to a member of the public not formally a party [to the contract]. . . . The field of obligation would be expanded beyond reasonable limits if less than this were to be demanded as a condition of liability." Moch Co. v Rensselaer Water Co., 247 NY 160, 164 (1928); see, also, Francois v City of New York, 161 AD2d 319 (1st Dept 1990)(defendant, which contracted with City to maintain traffic signals, owed no duty to non-contracting plaintiffs, who allegedly were injured as a result of malfunctioning traffic signal).
In certain situations, however, "parties outside of the contract are permitted to sue for tort damages arising out of negligently performed or omitted contractual duties." [*22]Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 586 (1994). "The definition of the existence and scope of an alleged tortfeasor's duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration." Id., at 587. Defining such situations is not a precise exercise, but rather requires "a balancing of various factors, including the reasonable expectations of the parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocations, and public policies affecting the expansion and limitation of new channels of liability." Id. Moreover,
[t]o limit an open-ended range of tort duty arising out of contractual breaches, injured noncontracting parties must show that the 'performance of contractual obligation [between others] has induced detrimental reliance [by them] on continued performance and inaction would result not merely in withholding a benefit, but positively or actively in working an injury,' . . . The nexus for a tort relationship between the defendant's contractual obligation and the injured noncontracting plaintiff's reliance and injury must be direct and demonstrable, not incidental or merely collateral.
Id., at 587, quoting Eaves Brooks Costume Co. v Y.B.H. Realty Corp., supra, 76 NY2d, at 226.
Courts have held that when a party who contracts "to inspect and repair and possesses the exclusive management and control of real or personal property which results in negligent infliction of injury, its assumed duty extends to noncontracting individuals reasonably within the zone and contemplation of the intended safety services." Palka , supra, at 589; see also, Mangieri v City of New York, 256 AD2d 153 (1st Dept 1998)(Corporation which, pursuant to a contract with the City was solely responsible for the repair and maintenance of golf course owed a duty of care to patron of golf course); Cossu v JWP Inc., 173 Misc 2d 277 (Sup Ct. NY Co. 1997)(defendant, which contracted with the City to maintain and repair streetlights, was potentially liable to plaintiffs injured by a falling street light based on its breach of its duties under the City contract).
Under the circumstances of this case, Petrocelli owes a duty to plaintiffs arising out of its contract with the City to repair and maintain the allegedly defective lamppost. The maintenance contract terms and the undisputed deposition testimony demonstrate that Petrocelli bore an exclusive duty to keep the lamppost in good repair. There is no dispute that Petrocelli was the sole contractor retained by the City defendants to maintain and repair the street lighting system, nor is there any dispute that the DOT street lighting division did not employ any maintenance or repair personnel on staff (see, DOT by Michael Hartnett, director, DOT street lighting division, dep. tr. at 30-32). The stated goal of the maintenance contract is "to provide prompt repairs based on the Contractor's patrol efforts and work orders received from the [DOT], Department of Parks and Recreations and Con Edison." (DOT/Petrocelli maintenance contract, detail specifications, general conditions, IV. goals [Welsbach Exh. 32]). The contract expressly [*23]requires Petrocelli to "[k]eep in good repair, the Street Lighting system inclusive of all City owned underground and/or overhead distribution," (DOT/Petrocelli maintenance contract, detail specifications, general conditions, I. scope and intent).
Petrocelli's repair responsibilities expressly "include but [are] not limited to the replacement or correction of defects [such as] . . . (a) Defective or missing lampposts . . . (b) Leaning lampposts . . . (d) defective or missing luminaires . . . (h) Dangerous conditions, such as but not limited to, . . . , hanging luminaires," (DOT/Petrocelli maintenance contract, detail specifications, general conditions, III. items of repairs). Significantly, the contract also requires Petrocelli to inspect each lighting unit at least once every 10 days and to perform normal maintenance (see, DOT/Petrocelli maintenance contract, detail specifications, general conditions, V. patrolling and patrol performance). One stated purpose of Petrocelli's inspections is "for noting any conditions requiring maintenance or repair," (DOT/Petrocelli maintenance contract, detail specifications, general conditions, V. patrolling and patrol performance). The DOT did not inspect the streetlights, unless requested by Petrocelli with regard to an item of repair falling outside the scope of the contract (see, Hartnett, dep. tr. at 59-60, 69-70).
The contract also provides that Petrocelli "shall, within four (4) hours of notice, correct any situation falling under [its] jurisdiction that is deemed by the Engineer . . . to be an emergency. This is to include knocked down lampposts, severely leaning lampposts, . . . hanging luminaires, . . . or situations that pose an immediate threat to public safety," (DOT/Petrocelli maintenance contract, detail specifications, general conditions, VI. work orders and repairs, [D] emergencies). Thus, Petrocelli had a duty to maintain the lampposts in a safe condition. Plaintiffs, standing as they were below or near the lamppost, came within the safety zone created by Petrocelli's contractual obligation. See, Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, supra. In addition, evidence in the record indicates that Petrocelli was aware that the subject lamppost would create a potential risk to a narrowly identified group of parade spectators, of which plaintiffs were a part.
The DOT's limited retention of authority to effect repairs itself is not dispositive in the circumstances presented here. The DOT's authority is expressly limited to specific situations in which Petrocelli has failed to timely complete repairs and failed to respond by computer to a DOT work order (see, DOT/Petrocelli maintenance contract, detail specifications, general conditions, XI. use of City forces or other contractors). Thus, the DOT's authority does not arise until after Petrocelli has breached a contractual obligation to timely repair or respond. In addition, although the maintenance contract permits the DOT to issue work orders to Petrocelli based on complaints received from other municipal agencies or the public (see, DOT/Petrocelli maintenance contract, detail specifications, general conditions, VI. work orders and repairs, [A] work orders), Petrocelli is the sole entity responsible for making such repairs.
Contrary to Petrocelli's contentions, the contract provision stating that "[t]he [*24]provisions of this Article shall not be deemed to create a right of action in third parties against the Contractor, or the City," (DOT/Petrocelli maintenance contract, the contract and definitions, Art. 8) is not dispositive in the circumstances presented here. Although similar provisions have been held enforceable, enforceability has only occurred where the injury sustained was purely to property. See, e.g., Nepco Forged Prods. v Consolidated Edison Co. of NY, 99 AD2d 508 (2d Dept 1984). Where, as here, the plaintiff has suffered personal injury, important public policy considerations, including risk and loss reparation, come into play which militate against the contracting away of the duty to use reasonable care to avoid injury to another. See, Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, supra.
For these reasons, Petrocelli's contractual obligation to repair and maintain the subject lamppost gives rise to a duty in tort toward plaintiffs. Petrocelli's contention that the breach of contract claim is fatally defective because the record conclusively demonstrates that Petrocelli did not, in fact, breach the maintenance contract is unavailing. Numerous triable issues exist regarding whether Petrocelli was obligated by the contract to repair the defective condition and, if so, whether the actions taken by Petrocelli were sufficient to fulfill that obligation. Specifically, Petrocelli incorrectly argues that it was only obligated under the maintenance contract to undertake repairs upon receiving notices or work orders from the DOT, and that it was therefore not required to respond to reports from employees of the Parks Conservancy that the upper portion of the lamppost was damaged.
As indicated above, Petrocelli was required under the maintenance contract to perform inspections to detect defects or other damage to the lampposts. After such inspection or patrol, the maintenance contract specifically provided that Petrocelli's patrol forces were to generate their own work orders. (see, DOT/Petrocelli maintenance contract, detail specifications, general conditions, VI. work orders and repairs, [A] work orders). Moreover, as set forth in connection with the negligent maintenance claims against the City defendants, there are factual issues regarding whether the alleged failure to properly maintain the subject lamppost was a substantial in causing plaintiffs' injuries.
Additionally, Petrocelli may be liable to plaintiffs for its affirmative acts of negligence in connection with maintenance of the lamppost. A contractor may be held liable to a noncontracting party for the contractor's "affirmative acts of negligence if those acts created or increased a hazard and were the proximate cause of plaintiff's injuries." Genen v Metro-North Commuter R.R., 261 AD2d 211, 212 (1st Dept 1999). Moreover, a defendant can be held liable where it assumes a duty to act and then fails to act reasonably. See, e.g., Nallan v Helmsley-Spear Inc., 50 NY2d 507, 522 (1980).
Under the circumstance here, triable issues of fact exist as to whether Petrocelli's alleged delay increased the likelihood that no other party would act, and whether due to the delay any defective condition of the lamppost was exacerbated. See, Genen v Metro-North Commuter R.R., 261 AD2d 211, supra, (whether snow removal contractor created [*25]or increased icy condition on which plaintiff fell by failing to properly complete sanding and plowing presents triable issue); Figueroa v Lazarus Burman Assocs., 269 AD2d 215 (1st Dept 2000)(same). There are also triable issues of fact regarding whether Petrocelli assumed a specific duty to repair the subject lamppost and, if so, whether it failed to act reasonably in fulfilling this duty based on evidence that in the months leading up to the parade, Petrocelli was notified several times the lamppost was leaning and needed to be replaced, and that Petrocelli responded that it would take care of the problem. (See, Soto, dep. tr. at pp. 20-34; Bill Brunning, dep. tr., at 33-34; O'Donnell, dep. tr. at 150-158).
Accordingly, Petrocelli's motion to dismiss the claims arising out of its alleged failure to fulfill its duties under the contract and for its affirmative acts of negligence is denied.
City's Cross-Claims for Indemnification
Petrocelli's request to dismiss the City defendants' cross-claims against it for contractual and common law indemnification is denied. The maintenance contract provides that:
The Contractor shall be solely responsible for all physical injuries or death of its agents, servants, or employees or to any other person or damage to, or loss of, any property sustained during its operations and work on the project under this agreement resulting from any act of omission or commission or error in judgment of any of its officers, trustees, employees, agents, servants, or independent contractors, and shall hold harmless and indemnify the City from liability upon any and all claims for damages on account of any injury, death to, or loss of, any persons or damages to, or loss of, property on account of any neglect, default of the Contractor, its officers trustees, employees, agents, servants, or independent contractors.
(see, DOT/Petrocelli maintenance contract, Chapter X, Article 74).
Here, there are triable issues of fact regarding whether Petrocelli's negligent performance of the contract or its omissions thereunder were a substantial factor in causing the injuries to plaintiffs. Accordingly, the indemnification provision may be applicable here. Additionally, it is premature to dismiss the claim for common law indemnification until the respective liability, if any, of Petrocelli and the City defendants is determined at trial.
Remaining Claims
The undisputed record demonstrates the Petrocelli did not design, manufacture, distribute or install the lampposts, but was retained solely to maintain the lampposts, after they were installed in 1994. Thus, Petrocelli's motion is granted to the extent it seeks to dismiss the claims against it for strict products liability, breach of warranty, and negligent design, manufacture and installation.
REMAINING CLAIMS AGAINST CONTRACTORS
Defective Design and Manufacture
[*26]
The joint plaintiffs and Macy's assert claims for strict liability, breach of express and implied warranties, and negligence against the various defendant contractors involved in the project to install and supply lampposts along Central Park West. Specifically, it is alleged that these defendants are liable because the lamppost was improperly and or negligently designed and manufactured, and installed
"In New York, a plaintiff injured by an allegedly defective product may seek recovery against the manufacturer on the basis of one or more of four theories ...[including] a cause of action in contract, express or implied, on the ground of negligence, or ... on a theory of strict liability." Voss v Black & Decker Manuf. Co., 59 NY2d 102, 106 (1983).
Here, only Valmont and Welsbach were involved in the manufacturing process. As set forth above, there is insufficient evidence to raise a triable issue of fact regarding whether the subject lamppost was negligently or otherwise defective designed or manufactured. In addition, even if it could be shown that the lamppost was defective, the compliance by Welsbach and Valmont with the design, manufacturing, and testing specifications of the DOT relieves them of liability.
To impose liability on a manufacturer, seller or distributor of a product under the theory of defective design or manufacture, a plaintiff must demonstrate that the design and manufacturing specifications which it followed were inherently dangerous, and that the defendant knew or should have known of the existence of the defect. See, Lonigro v TDC Elec., Inc., 215 AD2d 534 (2d Dept 1995). Thus, "[a] contractor may justifiably rely on the plans and specifications which [it] has contracted to follow[,] unless they are 'so apparently defective that an ordinary builder of ordinary prudence would be placed upon notice that the work was dangerous and likely to cause injury,' " Meseck v General Elec. Co., 195 AD2d 798, 799 (3d Dept 1993), quoting Knipe v R-19 Assocs., 177 AD2d 750, 752 (3d Dept 1991). Here, although the record shows that the there were problems with the lamppost's appearance, there is no evidence that Valmont or Welsbach knew or should have known that following DOT's specifications would render the lampposts inherently dangerous. Thus, the claims for negligence and strict liability against Welsbach and Valmont are unavailing.
A strict liability claim for a design defect applies not only to the manufacturer of the product, but to its vendors as well. Sucher, et al. v Kutscher's Country Club, 113 AD2d 928 (2d Dept 1985). However, even if Graybar, CRSS and Willets Point could be considered vendors, as opposed to contractors providing a service, as indicated herein, there no basis for finding a design defect giving rise to their liability.
Accordingly, the motions by Welsbach, Valmont, CRSS, Graybar, and Willets Point to dismiss the claims for strict products liability, negligent design, express and implied warranties are granted.
Negligent Installation Claims
The joint plaintiffs and Macy's assert claims against the various contractors based [*27]on the alleged negligent installation of the lamppost. These claims are without merit.
The record establishes that only Welsbach was involved in the actual installation of the lampposts in July or August 1994. In addition, the record shows that Welsbach installed the lampposts in accordance with the DOT's specifications, and that CRSS and the DOT inspected and approved of the installation of the lampposts. (Michael Harnett, Director of Street lighting for the City, dep. tr. at 319-320, 355-356; John McDermott, superintendent, Willets Point, dep. tr. at 120-121; Coddington, dep tr. at 92).
Furthermore, as indicated above, evidence that the lamppost was perceived to sag, and that Welsbach performed "shimming" to correct this perception is insufficient to create factual issues regarding whether Welsbach properly installed the lamppost, or whether such installation was a substantial factor in causing the incident. Likewise, evidence suggesting that there were problems with the installation of the photo electric cell, or P.E.C., fitter which is the luminaire itself, is irrelevant here, particularly as it is undisputed that the luminaire stayed attached after being hit by the Cat in the Hat balloon, and therefore had no role in plaintiffs' injuries.
Accordingly, the motions by Welsbach, Valmont, CRSS, Graybar, and Willets Point to dismiss the claimsfor negligent installation are granted.
Duties Arising out of Contracts
The claims asserted against the defendant contractors based on a duty arising under their obligations under various contracts and purchase orders are without merit.
As set forth above, there is no basis for finding that the contractors breached their obligations under various contracts. Furthermore, the contracts between the DOT and CRSS and the DOT and Willets Point do not impose any relevant obligations on the contracting parties with regard to lampposts. The contracts and purchase order agreements binding Welsbach, Graybar and Valmont, while relevant to the lamppost's design, manufacture and installation, do not expressly impose an exclusive obligation on these contractors. Further, the undisputed record conclusively demonstrates that, in practice, these contractors shared certain responsibilities, particularly with respect to the final design, with each other and the DOT. Significantly, the contractual obligation assumed by the contractor must be exclusively assumed. Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, supra; Uvaydova v Welsbach Elec. Corp., AD2d , 713 NYS2d 750 (2d Dept 2000)(DOT contract imposing comprehensive and exclusive responsibility to install temporary traffic light and to provide adequate protection for pedestrian traffic during roadway construction on defendant Yonkers Contracting Co. held to create tort duty flowing from Yonkers to injured pedestrian) and, in the absence of such exclusivity, no duty in tort can be held to exist.
Accordingly, the motions by Welsbach, Valmont, CRSS, Graybar, and Willets Point to dismiss the claims arising out of their alleged breach of various contracts is granted.
ADDITIONAL CLAIMS AGAINST WELSBACH
[*28]Negligence Claims Based on Contract With Macy's
Broadway Maintenance, a division of Welsbach, was retained by Macy's to remove and/or turn certain traffic signals, arms of lampposts, and lampposts from the parade route. (See, expense purchase order agreement dated 10/29/97 between Broadway Maintenance and Macy's, Welsbach Exh. 33). The joint plaintiffs and Macy's assert claims alleging that in the course of performing this contract, Welsbach was negligent in removing a yellow pylon adjacent to the lamppost on the morning of the parade, and that it breached its duties under its agreement with Macy's.
The claims against Welsbach based on its alleged negligent removal of a temporary pylon adjacent to the subject lamppost are without merit. The record indicates that the pylon was placed by Petrocelli after the subject lamppost was damaged by a sports utility vehicle in April 1997, and that Petrocelli removed the traffic signals from the lamppost, and installed temporary signals in the pylon. An employee of Petrocelli testified at his deposition that although he did not see them do so, two Welsbach employees told him that they had removed the pylon on the morning of the parade. (Michael Ambrosino, dep. tr. at 59-61 ).
However, according to the affidavit of George Onorato, an employee of Welsbach who was working on the day of the parade, the Welsbach's employees did not remove the pylon but, instead, moved the traffic signal devices, and the equipment holding them, at the instruction of New York City police officers. Indeed, photographs of the scene on the day of the parade show that the pylon, without the traffic signals and equipment, was adjacent to the subject lamppost during the parade. In any event, even if it had been removed, the absence of the pylon would not have been a substantial factor in causing plaintiffs' injuries.
Macy's also argues that Welsbach breached its contractual obligations to it because (i) Ira Lipkins, the Vice President of Welsbach, inspected the parade route in October 1997 with Mark Schoenberg, Macy's director of operations, and did not locate the defective lamppost, and (ii) Edward Frisone, a project manager for Welsbach, knew that the lamppost was damaged prior to the parade and failed to notify Macy's. These arguments are without merit.
Although Mr. Lipkins inspected the parade route with Mr. Schoenberg, nothing in Welsbach's contract with Macy's imposed a duty on Welsbach to find the defective lampposts, or to advise Macy if any should be moved or removed. In fact, the inspection of the parade route did not include the area along Central Park West where the subject lamppost was located, and the contract between Macy's and Welsbach did not otherwise relate to the subject lamppost. (Schoenberg, dep. tr. at 259, 379). Moreover, the record shows that Macy's, and not Broadway Maintenance and/or Welsbach, was responsible for compiling the list of traffic signals, lamppost arms, and lampposts to be removed or moved, and sending that list to DOT for approval. (Id. at 175-178). In addition, Mr. Schoenberg testified that Welsbach and Broadway Maintenance fulfilled their obligations [*29]under the agreement with Macy's. (Id. at 379).
As to the claims based on Mr. Frisone's alleged knowledge of the condition of the subject lamppost, the record shows that while Mr. Frisone observed that the lamppost was bent sometime after the sports utility vehicle hit it in April 1997, he was not working in connection with the Macy's contract at the time. (Frisone, dep. tr. at 95-98). In addition, once it installed the lampposts, Welsbach had no duty to maintain them. (Neptune, dep. tr. at 255, 267). In any event, according to Mr. Frisone, at the time he saw the lamppost, it appeared that it was already in the process of being repaired by the responsible parties . Thus, when asked why he did not report the defect to the City, Frisone testified that "[t]he park employee had said that they reported it to the City, and when I got there, there was a pylon there with traffic signals on it already, which means the City was aware of it, or [the maintenance] contractor was aware of it"( Id., at 98).
Accordingly, there is no evidence supporting any claims that Welsbach was negligent either in performing its contract with Macy's, or breaching any obligation thereunder, and thus these claims must be dismissed.
CONCLUSION
In view of the above, the motions for summary judgment by Welsbach, Valmont, CRSS, Graybar and Willets Point are granted in their entirety, and all claims, cross-claims and third-party claims variously asserted against these parties are dismissed. The motions for summary judgment by the City defendants and Petrocelli are granted in part, and denied in part in accordance with the foregoing.
Settle order on notice.
Dated: February ,2001
J.S.C.
Footnotes
Footnote 1:By order in the Pluhar action (supra) dated February 24, 2000, this Court granted the motion by Pluhar's attorneys to be relieved as counsel and subsequently severed the action and marked it off the calendar. To date, no new attorneys have been substituted.
Footnote 2:While the joint plaintiffs and Macy's have slightly different arguments and perspectives, with few exceptions, for the purposes of this decision, their arguments will be considered together as such differences do not affect, in a material way, this Court's analysis or result.
Footnote 3:At oral argument, the Court raised questions as to dicta in Levy v the City, 262 AD2d 230 (1st Dept 1999) which seems to suggest that governmental immunity might not apply where a governmental entity assumes duties regarding the planning and management of an event. A review of Levy, supra, which involved claims that the City's Police Department did not provide adequate security at a privately-run event, indicates that it is not applicable here.
Footnote 4:Deflection is defined as "[t]he act of deflecting or the condition of being deflected." Deflect is defined as "to turn aside or cause to turn aside, bend or deviate."
American Heritage College Dictionary, (3d ed. 1997), at 364.
Footnote 5:Mr. Vecchio states, after reviewing the test results, that "[t]he deflection testing showed that the Lamppost met [the] design criteria. The shaft deflection under the 375-pound load was 16.44 inches, well below the allowable 17 inches. The deflection of the luminaire arm under the 250-pound vertical load was .875 inches, well below the allowable 4.5-inch deflection. When the 50-pound load was applied horizontally, the deflection of the luminaire arm was only 0.5 inches, well below the 21/2 inch deflection permitted."
Footnote 6:The documentary proof reflects that Valmont recommended that the test load for the pole be decreased from 500 pounds to 335 pounds so as to meet the deflection limit of 15 inches. DOT agreed that a change was needed but did not adopt Valmont's recommendation for the new test criteria. Instead, DOT changed the test load to 375 pounds, and increased the deflection limit to 17 inches (Plaintiffs' Exh X; Machietto, dep. tr., at 50-51).
Footnote 7:In addition to the problems pointed to by the joint plaintiffs, the March 26, 1993 DOT memorandum also indicates, inter alia, that (i) bolt covers needed to be assembled more carefully to avoid gaps, and (ii) there were gaps in the fluting on the shaft. These two issues are unrelated to the design of the luminaire arm. The first refers to gaps at the base of the pole, and fluting refers to ornamental pieces of metal attached to the shaft of the pole. (Coddington, dep. tr. at 96-98).
Footnote 8:The joint plaintiffs also point to alleged problems with the attachment to the so-called P.E.C. (i.e. photo electric cell) fitter. However, as the joint plaintiffs acknowledge, this problem was not directly related to the structural integrity of the upper arm since the P.E.C. fitter attached the luminaire itself. Moreover, the luminaire did not fall as a result of the impact of the Cat in the Hat balloon.
Footnote 9:A shim is "[a] thin, often tapered piece of material, such as wood, stone, or metal, used to fill gaps, make something level, or adjust something to fit properly."American Heritage College Dictionary, at 1257. Shimming is "[t]o fill in, level, or adjust with a shim." Id.
Footnote 10:Machietto explained that the deflection analysis data "is a set of calculation to ... show what the pole looks like after installation, and there is a kind of guideline for aesthetic purposes only. It has nothing to do structurally at all." (Machietto, dep, tr., at 248).
Footnote 11:Shear is defined as "an applied force or system of forces that tends to produce a shearing strain." A shearing strain is "[a] deformation of an elastic body caused by forces that produce an opposite but parallel sliding motion of the body's planes." American Heritage College Dictionary, at 1254.
Footnote 12:Tensile is defined as "capable of being stretched or extended." Tensile strength is defined as "[t]he maximum tension a material can withstand without tearing." American Heritage College Dictionary, at 1398.
Footnote 13:Soto did not recall whether the reports were written or oral.
Footnote 14:Although the City defendants' expert, Mr. Killam and Welsbach's expert, Mr. Vecchio, both opine that the bolts attaching the luminaire arms were in place and secure at the time of the accident (Killam Affidavit, ¶ 8)(Vecchio Affidavit, ¶ 15, 18), these opinions are insufficient to resolve the issue as a matter of law. As stated above, employees of the City and non-party witnesses testified that bolts were missing and the pole was leaning. In addition, Dr. Timothy R. Smith, an expert for Macy's, and Mr. Hoffmann, on behalf of the joint plaintiffs, variously opine that bolts were loosened and that the luminaire arm and pole were damaged prior to the accident (Smith Affidavit, ¶ ¶ 5-7); (Hoffmann Affidavit, ¶ ¶ 4-7).
Footnote 15:In his affidavit, George Onorato, a Welsbach employee who saw the pylon described it as a "wooden ... four-sided, four (4) foot (approximate) high truncated yellow pyramid, with a square base and a square top platform." (Onorato Affidavit, ¶ 3).
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