Hoffman v Perry
Annotate this CaseDecided on February 27, 2009
Supreme Court, Ulster County
Carol Hoffman, Plaintiff,
against
Paris Perry, D.D.S. and Wilma R. Snyder, Defendants.
08-0197
Basch & Keegan, LLP
Attorneys For Plaintiff
Derek J. Spada, Esq., of counsel
307 Clinton Avenue
P.O. Box 4235
Kingston, New York 12402
Bailey, Kelleher & Johnson, P.C.
Attorneys For Defendant Wilma R. Snyder
Vincent J. DeLeonardis, Esq., of counsel
Pine West Plaza 5, Suite 507
Washington Avenue Extension
Albany, New York 12205
Law Offices of Michael M. Emminger
Attorneys for Defendant Paris Perry, D.D.S.
Jacinda H. Conboy, Esq., of counsel
P.O. Box 12699
Albany, New York 12212-2699
Henry F. Zwack, J.
In this personal injury action, defendants have each separately moved for summary judgment. Plaintiff opposes the motions and defendant Paris Perry, D.D.S.(Dr. Perry) opposes defendant Wilma R. Snyder (Snyder)'s motion.
On January 22, 2007 plaintiff and Snyder, who are sisters, were on their way to Dr. Perry's office, located at the bottom of an interior set of stairs in a building located at 2821 Route 209 in Kingston, when both plaintiff and Snyder fell.
Plaintiff then commenced the present proceeding, asserting that her injuries were due to the negligence of defendants.
Snyder now moves for summary judgment, asserting that plaintiff's claim against her is based upon the "danger invites rescue" doctrine and that the doctrine does not apply as a matter of law. Snyder argues that by using the stairway in question, she did not place herself in danger and therefore the doctrine does not apply.
Dr. Perry now also moves for summary judgment, asserting that any alleged building code violation relating to the lack of a right side handrail on the stairway in question was not a proximate cause of plaintiff's injury as a matter of law. Dr. Perry relies upon deposition testimony of plaintiff in which she averred that she did not know what caused her own fall, or her sister's fall, down the stairs.
Dr. Perry opposes Snyder's motion for summary judgment, arguing that it has not been established by Snyder that she was not negligent. Dr. Perry also argues that if his motion is denied, then necessarily Snyder's motion must also be denied on the basis of questions of fact as to whether Snyder's negligence and/or a code violation caused plaintiff's injuries.
Plaintiff opposes both defendants' motions. Regarding Snyder's motion, plaintiff argues that plaintiff believed Snyder was at risk of injury when she observed her begin to fall and that therefore the "danger invites rescue" doctrine is applicable. Plaintiff relies upon her own deposition testimony and has also submitted an affidavit to oppose the motion. Plaintiff testified and averred that she believed her sister was in danger and therefore attempted to stop her fall, but in the process ended up losing her balance and falling herself.
Regarding Dr. Perry's motion, plaintiff submits an affidavit of a professional engineer who concludes that the applicable State Building Code required the stairway in question to have two handrails, one on the left and one on the right. The stairway in question lacked a handrail on the right side and plaintiff's engineer avers that this is a violation of the building code. Plaintiff also submits an affidavit in which she avers that a handrail on the right hand side of the staircase may have prevented her fall and possibly her sister's fall. Her sister was undisputedly reaching with her right hand for the left side [*2]handrail just prior to her fall. Plaintiff avers that if her sister had not fallen, she would not have fallen trying to help her. Plaintiff fell down the right hand side of the staircase and therefore also avers that a handrail on that side may have also prevented her fall.
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The focus should be on issue identification rather than issue determination (Sternbach v Cornell University, 162 AD2d 922, 923 [3d Dept 1990]). "[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 Hosp., 68 NY2d 320, 324 [1986]; see also Ayotte v Gervasio, 81 NY2d 1062 [1993]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Once the movant has established a right to judgment as a matter of law, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez, supra; Zuckerman, supra). The evidence must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, in order to determine whether there is any triable issue of fact outstanding (see Suffolk Co. Dept. of Soc. Servs. v James M., 83 NY2d 178, 182 [1994]; Boyce v Vazquez, 249 AD2d 724, 725 [3d Dept 1998]).
Regarding Snyder's motion for summary judgment, counsel disputes the law applicable to the doctrine of "danger invites rescue." Snyder argues that the act of plaintiff of descending the staircase was not a dangerous activity and therefore the doctrine is not applicable as a matter of law. Plaintiff argues that plaintiff in fact believed that Snyder's life was in danger when she started to fall, and therefore the doctrine should apply. Snyder asserts that this is not sufficient under the circumstances, when the sisters were approximately three steps from the bottom of the staircase.
The "danger invites rescue" doctrine, when initially created, involved an emergency situation where party one was negligent and put party two in peril, to which party three attempted rescue (Provenzo v Sam, 23 NY2d 256 [1968]; Wagner v International Ry. Co., 232 NY 176 [1921]). In this situation, the doctrine holds that party one is liable not just to party two but also to party three, if the rescuer acted reasonably under the circumstances (see id.). The doctrine was later expanded to include an emergency situation that involves only two parties, but the requirement of negligence remains (Provenzo, 23 NY2d at 260; Worth v Snyder, 204 AD2d 1045 [4th Dept 1994]; Rucker v Andress, 38 AD2d 684 [4th Dept 1971]). In a two party application, party one puts themselves in peril due to their own negligence and then party two comes to the rescue (see id.). In that situation, party two may recover from party one to the extent that party two acted reasonably under the circumstances (see id.).
Plaintiff's bill of particulars alleges that Snyder was negligent in following ways: "failing to step down from one step to the other", "[i]n misplacing her foot by not placing it on the tread of the stair", "[s]he might also have failed to hold the rail tightly", and "[i]n [*3]failing to keep her balance." Snyder argues that she did not act with the requisite culpability and did not place herself in a perilous situation by descending the set of stairs, which she had descended before without incident. Plaintiff argues that a finding that Snyder was not negligent compels a finding that Dr. Perry is fully liable for the accident. Plaintiff argues that Snyder was negligent by reaching for the left hand rail with her right hand, instead of with her left hand. Snyder points out that her testimony is clear that in fact she was holding the left railing with her left hand, but then attempted to also grab hold with her right hand when she began to slip.
The Court finds that no culpable conduct has been established on the part of Snyder. The only proof before this Court is that she descended a staircase she had descended in the past without problem, and held onto the left handrail, which was the only handrail available. There is no evidence that she was descending the staircase in an unsafe manner or otherwise was acting in a manner to place herself in a perilous position. There is therefore no proof as a matter of law that Snyder had the requisite culpability for the doctrine of "danger invites rescue" to apply (Provenzo, 23 NY2d at 260; Worth, 204 AD2d at 1045). In light of this finding, the Court does not reach the parties' other arguments regarding whether or not Snyder was reasonably thought to be in peril by plaintiff. Snyder established prima facie entitlement to judgment as a matter of law and plaintiff has failed to establish that a triable issue of fact precludes summary judgment. Snyder's motion for summary judgment is granted.
The Court notes plaintiff's argument that if Snyder's motion was granted, then it compelled a finding that Dr. Perry was one hundred percent liable for plaintiff's injuries. The Court notes that it does not agree with this statement and Dr. Perry's negligence is yet to be determined.
Dr. Perry's motion for summary judgment is denied. Dr. Perry did not affirmatively establish that a building code violation did not exist in his moving papers. Rather, his argument was that the absence of a hand rail on the right hand side of the staircase was not a proximate cause of plaintiff's injury as a matter of law. The Court does not find that this is supported by the deposition testimony of plaintiff and Snyder. Snyder testified that when she felt herself slip, she attempted to grab the left handrail, since it was the only handrail, with her right hand. She testified that she already had her left hand on the left handrail and was attempting to steady herself by grabbing the handrail with her right hand also. Plaintiff saw her sister turn and attempt to grab the left handrail with her right hand. Plaintiff thought her sister was going to fall at that point and wanted to try to help her. Plaintiff was moving to the right of her sister when they both fell and landed at the bottom of the stairs. Plaintiff had been holding the left handrail while descending the stairs and let go of it at the time when she attempted to move around her sister. Dr. Perry is correct that plaintiff and Snyder testified that they are not sure what initially caused each of them to slip on the stairs. However, it has not been established as a matter of law that the absence of a handrail was not a proximate cause of [*4]plaintiff's fall (see, e.g., Scala v Scala, 31 AD3d 423 [2d Dept 2006]). Even if plaintiff initially slipped for an unknown reason, it is well established that there can be more than one proximate cause of an accident (see id.). Based upon the testimony, a reasonable person could conclude that the presence of a handrail on the right hand side of the stairway may have prevented Snyder's ultimate fall down the stairs and also may have prevented plaintiff's fall down the stairs.
Even assuming Dr. Perry had established prima facie entitlement to judgment as a matter of law on this issue, plaintiff's affidavit submitted in opposition to the motion raises a triable question of fact on the issues of whether the presence of a right handrail would have prevented at the least plaintiff's fall, and potentially Snyder's fall, which could be viewed as at least a partial cause of plaintiff's fall. Plaintiff submits an affidavit from a professional engineer attesting that the absence of a right handrail was a code violation. Plaintiff, who was holding the left handrail initially, and then moved to the right to attempt to help her sister, avers that a handrail on the right hand side of the staircase could have prevented her from falling, and may also have prevented her sister from falling under the circumstances, as detailed above. Based upon the foregoing, Dr. Perry's motion must be denied.
Accordingly, it is
ORDERED, that the motion for summary judgment by defendant Wilma
R. Snyder is granted and the caption shall be amended accordingly; and it is further
ORDERED, that the motion for summary judgment by defendant Paris
Perry, D.D.S. is denied.
This constitutes the Decision and Order of the Court. All papers including this Decision and
Order are returned to the attorneys for Wilma R. Snyder. The signing of this Decision and Order
shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable
provisions of this rule with regard to filing, entry and Notice of Entry.
Dated:February, 2009
Troy, New York
________________________________________
Henry F. Zwack
Acting Supreme Court Justice
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