Mayerman v Perkins Eastman Architects, P.C.

[*1] Mayerman v Perkins Eastman Architects, P.C. 2012 NY Slip Op 50267(U) Decided on January 13, 2012 Supreme Court, New York County Feinman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 13, 2012
Supreme Court, New York County

Geraldine Mayerman, Plaintiff,

against

Perkins Eastman Architects, P.C., D.H.I. CONSTRUCTION SERVICES, INC., CARNELL ENGINEERING, P.A., SAND DOLLAR POOLS, LLC and R.G. ROESCH ARCHITECTURE & LANDSCAPE ARCHITECTURE, Defendants.



112855/2007 E



For plaintiff:

Campson & Campson.

By: Paul Campson, Esq.

11 Martine Ave. - P House

White Plains, NY 10606

For defendants Perkins Eastman Architects, P.C.,

R.G. Roesch Architecture & Landscape Architecture

Gogick, Byrne & O'Neill, LLP

By: Bryan R. Weber, Esq.

11 Broadway, ste. 1560

New York, NY 10004

For defendant DHI Construction Services, Inc.

Furey, Kerley, Walsh, Matera & Cinquemani, P.C.

By: Brett Milgrim, Esq.

2174 Jackson Ave.

Seaford, NY 11783

For defendant Carnell Engineering, P.A.

Canter Law Firm

By: Nelson E. Canter, Esq.

John D. Megerian, Esq. (at oral argument)

123 Main St., 9th fl.

White Plains, NY 10601

For defendant Sand Dollar Pools, Inc.

Cohen, Kuhn & Associates

By: Ira Goldman, Esq.

Robert D. Wilkins, Esq. (at oral argument)

Two Park Ave., 6th fl.

New York, NY 10016

Paul G. Feinman, J.

This is a personal injury action arising out of a lifeguard's slip and fall on newly installed tile coping around a pool as she was descending from a life guard stand. Plaintiff is barred from suing the country club which owned the premises because of the Worker's Compensation Law's prohibition against lawsuits against one's employers. She has sued various contractors involved in the design, selection of tile, and installation of the tile, around the pool. [FN1] These contractors, defendants Carnell (sequence number 007), DHI Construction Services, Inc. (sequence number 008), Sand Dollar Pools, LLC (sequence number 009), and Perkins Eastman Architetcs, P.C. and R.G. Roesch Architecture & Landscape Architecture, P.C. (sequence number 010) each now move for summary judgment pursuant to CPLR 3212. The principal issue to be decided in all of [*2]these motions is whether these design and construction contractors owed a duty of care to plaintiff who, of course, was not in privity with them. Plaintiff opposes all four motions. For the reasons set forth below, with the exception of the motion by Sand Dollar Pool, defendants' motions for summary judgment are denied. Sand Dollar Pool's motion for summary judgment is granted and the complaint and any cross claims are dismissed as against it.

Facts

Plaintiff Mayerman alleges that on August 3, 2006, while working as a lifeguard at the Quaker Ridge Golf Club, in Scarsdale, New York, she slipped on the tile coping band that edged the Club's swimming pool and was caused to fall into the pool, sustaining injuries. The pool and surrounding area had recently been redesigned and reconstructed and had only reopened to members and guests over the 2006 Memorial Day weekend.

According to the evidence, in particular the deposition testimony of the various parties, the firm of Perkins Eastman Architects, P.C. (PEA), was hired by the Club to design the interior areas of the Club, including the pool area. PEA served as the architect for the entire construction project, overseeing the project and making sure it was done in accordance with the approved drawings (Doc. 66-7, Mot. ex. C [Wright EBT 12-14, 17]). PEA hired R.G. Roesch Architecture & Landscape Architecture (RGR) as the landscape architect to design, among other things, the paved deck for the pool area, the coping, and all walkways (Doc. 67-8, Mot. ex H [Moran EBT 10-12]). The Club contracted with DHI Construction to be the general contractor for the project, and coordinator of the subcontractors (Doc. 63-10, Opp. Ex. K, Guaranteed Maximum Price Contract; Doc. 59 at 19-22, Mot. ex. N [Dym EBT 16]). DHI subcontracted with Sand Dollar Pools to provide all labor and materials necessary for the pool installation, including the pool tile coping (Doc. 58 at 56, Mot. ex. I, Purchase Order 925K, of 9/22/05). PEA also retained Carnell Engineering, P.A. to address both the technical aspects of the pool, such as the depth, filter, pumps, and other mechanical things, and also to submit the construction drawings to the Westchester County Department of Health for approval (Doc. 66-7, Mot. ex. C [Wright EBT 11-13]). In addition, the Club formed a "construction committee" consisting of its manager and certain members to oversee the construction and participate in the decision-making process; according to RGR's witness, PEA was a part of the committee meetings (Doc. 66-7, Mot. ex. C [Wright EBT pp. 12-14]; Doc. 67-8, Mot. H [Moran EBT 14]).

Carnell designed the shape of the pool and the gutters, but not the tile coping or the pavers (Doc. 67-8, Mot. ex. H [Moran EBT 33-34]). Because Carnell was designing the gutter and filtering system, it had discussions with RGI about the amount of room there would be for installation of a mortar bed, or tile, or coping, based on requirements concerning the maximum distance allowed from the water level to the top of the pool deck (Doc. 67-8, Mot. ex. H [Moran EBT 39-40]). There was no discussion with Carnell about the type of tile to be used on the walking surface (Doc. 67-8 Mot. ex. H [Moran EBT 40]). The evidence shows that RGR drafted the specifications for the tile to be used, which included that it have a slip resistant finish (Doc. 67-4, Mot. ex. E [specifications at § 2.01]; Doc. 67-8, Mot. ex. H [Moran EBT 17]). RGR's Tanya Moran, an architect, contacted National Pool Tile about ordering the proper tiles and from their discussions, she ordered about nine or ten samples to be presented to the construction committee (Doc. 67-8, Mot. ex. H [Moran EBT 41-42]). Moran testified that the tiles chosen met the standards set by ANSI (American National Standards Institute) (Doc. 67-8, Mot. ex. H [*3][Moran EBT 44]).[FN2] She was at the meeting with the construction committee to discuss the tile choices (Doc. 67-8, Mot. ex. H [Moran EBT 36-37, 42]). After the Club approved the tile, it was ordered and installed by the general contractor, DHI and its subcontractor Sand Dollar Pools.

The minutes of the April 4, 2006, construction committee meeting, attended by representatives from the Club, PEA, DHI, and a non-party Turnbrry Plannning, Inc., show that DHI "reported that the new pool coping tile appears to be very smooth and is slippery when wet." (Doc. 66-10, Opp. ex. F [Minutes ¶ 5]). However, according to the same minutes, "Brian [Scheuzger, of PEA] said that the tile has the proper coefficiency of friction and is fine" (Doc. 66-10, Opp. ex. F [Minutes ¶ 5]).

The final construction was approved by the Westchester County Department of Health (DOH) by letter dated May 31, 2006 (Doc. 67-7, Mot. ex. G). The DOH approval occurred following the inspection by the DOH Bureau of Environmental Quality which had initially approved the plans and then gave final approval to the pool as built, followed by an inspection and approval by the DOH Operations Department which checked on the water quality and safety aspects of the pool (Doc. 66-9, Opp. ex. E [Carnicelli EBT 41-42]). The inspection by Operations involved flooding the pool deck to make sure the drainage system worked, and walking the deck as part of the safety inspection (Doc. 66-9, Opp. ex [Carnicelli EBT 42]). According to the affidavit by RGR's Moran submitted as part of its motion papers, the tile selected had a ".6" slip resistance ratio "which is well within the requirements of ANSI" (Doc. 67-3, Mot. ex C [Barth (Moran) Aff. ¶ 15]). The specifications given by RGR for the pool tile, called "tile pavers," were noted as "slip resistant" (Doc. 67-3, Mot. ex. C [Barth (Moran) Aff. ¶ 17]).

The pool opened around the Memorial Day weekend in 2006. On about June 14, 2006, after the pool opened, Sand Dollar's principal sent letters to Carnell, DHI, and the Club, in which he stated that he "did not and does not approve of the tile chosen and installed as the finished coping for the main pool," as per the "numerous" conversations he had with Jim at Carnell Engineering, and Bennett at DHI Engineering, and that he "believes said tile to be too slippery when wet" (Doc. 59, Mot. ex. K [letters from Sand Dollar]).

With the opening of the pool, plaintiff resumed her employment at the Club as a Pool Director and aquatics professional at the pool, working about six days a week throughout the summer (Doc. 66-2, Opp. ex. B [Pl. EBT 24, 29, 134]). On August 3, 2006, at around 6:30 p.m., she was sitting as a lifeguard, for which she was certified (Doc. 66-2, Opp. ex. B [Pl. EBT 41-42]). The lifeguard chair had been generally located in the same position all summer (Doc. 66-2, Opp. ex. B [Pl. EBT 41]). She testified that as she was stepping down off the chair and her left foot stepped onto the tiled floor, it slipped out from under her, causing her to fall into the pool and injure her right shoulder (Doc. 66-2, Opp. ex. B [Pl. EBT 44-45, 47]).

Plaintiff testified that prior to her accident, she had complained to the clubhouse manager that the pool tile was too smooth and slippery when wet, and that she would place towels at various parts of the pool edge to prevent others from slipping (Doc. 66-2, Opp. ex. B [Pl. EBT 39-40, 130]). She did not believe any of her complaints were in writing, but she spoke with at least one of the workers onsite during construction, and she complained several times to the [*4]clubhouse manager (Doc. 66-2, Opp. ex. B [Pl. EBT 113, 114, 126-127, 134]).

Plaintiff commenced her personal injury action in 2007. She alleges that she was lawfully at the premises which had been designed, built, and installed by the various defendants, and because of the decision to use and install a coping tile around the pool that became very slippery when wet, she was caused to slip and fall and to suffer injury that was solely attributable to defendants' negligence. She further alleges that defendants had actual notice of the problem, in that there were discussions among the various parties including her, in the Spring of 2006, prior to the completion of the pool, that the tile seemed to be quite slippery, perhaps too slippery, but until her accident on August 3, 2006, none of the defendants attempted to rectify the problem or warn people using the pool area of the condition.[FN3]

Analysis

Summary judgment is only appropriate when there is no genuine issue as to any material fact and the disposition of the causes of action may be decided as a matter of law (Security Pacific Bus. Credit, Inc. v Peat Marwick Main & Co., 79 NY2d 695 [1992], rearg denied 80 NY2d 918 [1992]). Issue finding rather than issue determination is its function (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The evidence will be construed in the light most favorable to the one moved against (Corvino v Mount Pleasant Centr. Sch. Dist., 305 AD2d 364, 364 [2d Dept 2003]; Bielat v Montrose, 272 AD2d 251, 251 [1st Dept. 2000]). Where there is any doubt as to the existence of a triable issue of fact, summary judgment should be denied. (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 [1st Dept. 2002]).

To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in its favor (GTF Mtkg, Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 967 [1985]). Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial (Kosson v Algaze, 84 NY2d 1019 [1995]).

When the action sounds in tort, the plaintiff must demonstrate prima facie (1) that defendant owed her a duty of reasonable care, (2) a breach of that duty, and (3) a resulting injury proximately caused by the breach (see Boltax v Joy Day Camp, 67 NY2d 617 [1986]). The threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party (Espinal v Melville Snow Contractors, Inc., 98 NY2d 136, 138[2002]). It is the court's responsibility to determine whether there is a duty, and "involves a very delicate balancing of such considerations as logic, common sense, science, and public policy" (Blye v Manhattan & Bronx Surface Transit Oper. Auth., 124 AD2d 106, 108 [1st Dept. 1987], aff'd 72 NY2d 888 [1988], citing Bovsun v Sanperi, 61 NY2d 219, 228 [1984]; De Angelis v Lutheran Med. Center, 58 NY2d 1053, 1055 [1983]). The scope of any such duty of care varies with the foreseeability of the possible harm (Tagle v Jakob, 97 NY2d 165, 168 [2001]). Although foreseeability has been called "a critical factor" in defining an alleged tortfeasor's duty, it will not create a duty which does not otherwise exist (Blye v Manhattan & Bronx Surface Transit Oper. [*5]Auth., 124 AD2d at 108, citing Pulka v Edelman, 40 NY2d 781, 785-786 [1976]).

Defendants in general appear to argue that as the tile chosen met the ANSI standard for slip resistance, this in itself establishes a lack of negligence. They further point out that plaintiff has submitted no evidence that the tile chosen has been determined by an expert to be a hazard when used at a swimming pool. They also rely on the well-settled line of cases that hold that simply because a floor is slippery due to its smoothness or polish, a defendant will not be found negligent unless the plaintiff shows some other proof of negligence beyond the inherent smoothness of the floor, such as for instance a negligent application of wax or polish (see, Kruimer v National Cleaning Contrs., 256 AD2d 1 [1st Dept 1998] ["absent proof of the reasons for plaintiff's fall other than the inherently slippery' condition of the floor, no cause of action for negligence can properly be maintained"]; Aguilar v Transworld Maintenance Servs., 267 AD2d 85, 86 [1st Dept 1999], lv denied 94 NY2d 762 [2000] [mere statement that plaintiff "felt" wax was insufficient to establish that defendant was negligent]; Katz v New York Hosp., 170 AD2d 345 [1st Dept 1991] [defendant established that smooth marble flooring was not waxed]).

These cases are not on point. Plaintiff is not alleging that defendants did anything negligent to the tile after it was installed. Rather, she contends, in essence, that the choice of tile was a design flaw and that it was negligence to install this tile at all given that questions were raised about its smoothness both duirng and after its installation. Given that defendants knew or should have known of the problems presented by this tile, plaintiff contends defendants had a duty to substitute the tile or treat it in a manner to reduce its slipperiness (see Fuller v Powers Funeral Home, 214 AD2d 1045, 1046 [4th Dept 1995]). She alleges that no one remedied the dangerous condition even after having actual notice of the condition. Plaintiff's allegations are more similar to those in Azzaro v Super 8 Motels, Inc., 62 AD3d 525, 526 (1st Dept 2009), where the plaintiff fell when getting out of the shower and alleged that both the tile floor of the bathroom and the cotton floor mat supplied by the motel were unreasonably dangerous because they lacked a nonskid surface. In Azzaro, the court deciding the motion for summary judgment held that the defendants had made a prima facie showing that the accident was not attributable to a defect in the floor or the bath mat, and that plaintiff failed to present competent evidence of a defect in either the floor or the mat, and her expert's affidavit referred to industry standards not applicable to bathrooms. Of course, in Azzaro, plaintiff brought suit against the motel. In the instant matter, plaintiff brings suit against contractors with whom she has no inherent privity.

In general, a contractor does not owe a duty of care to a noncontracting third party (Church v Callanan Indus., 99 NY2d 104 [2002]). A duty of care may, however, arise out of a contractual obligation or the performance of the contact in three situations, in which case the contractor will be subject to tort liability for failing to exercise due care in the execution of the contract (Timmins v Tishman Constr. Corp., 9 AD3d 62, 66 [1st Dept. 2004], rearg denied 4 NY3d 739 [2004], lv denied 4 NY3d 795 [2005]; Espinal v Melville Snow Contrs. 98 NY2d at 139-141 [2002]; Church v Callanan, supra). Thus, a plaintiff must demonstrate that the contractor either created an unreasonable risk of harm or increased the risk, or the plaintiff reasonably relied upon the contractor's continuing performance arising out of a contractual obligation, or the contractor had entirely displaced another party's duty to maintain the premises safely (Timmins v Tishman Constr. Corp., 9 AD3d 62 at 66).

Plaintiff contends that the evidence shows that all the defendants were aware, before the [*6]pool opened for use, that there were concerns about the tile, that both DHI and Sand Dollar Pools questioned the fitness of the tile, and that plaintiff herself also expressed her concerns to both the Club and to workers on the pool. She thus argues that defendants should be held liable because they had notice and were made aware of the slippery condition of the tile that caused plaintiff's accident, but did nothing, citing West v Great Atlantic and Pacific Tea Co., Inc., 259 AD2d 485 (2d Dept 1999). She contends that defendants had a duty either to remedy the defect, such as by removing the coping tiles around the pool, or, at a minimum, clearly warn people of the condition. At oral argument, plaintiff's counsel also suggested that defendants owed her a duty based on her employment at the Club as an aquatics professional, in which she could be expected to use the pool.

As already explained above, it is the court's responsibility to determine whether there is a duty, and here, after conducting the requisite "delicate balancing of such considerations as logic, common sense, science, and public policy" (Blye v Manhattan & Bronx Surface Transit Oper. Auth., supra), the court concludes that defendants owed plaintiff a duty of care. Their decision to rely exclusively on the tile's compliance with the ANSI standard and have the tile installed, despite the comments and questions at the construction committee as to whether the tile was overly slippery when used around the pool, "launched an instrument of harm," one of the three situations described by Espinal (98 NY2d at 140; see also Genen v Metro-North Commuter R.R., 261 AD2d 211 [1st Dept 1999] [summary judgment not appropriate where snow removal contractor left dangerous icy patches after completing its work, an affirmative act that may had led to the injury of plaintiff who slipped and fell on the railroad platform]). Of course, plaintiff ultimately bears the burden of showing at trial that defendants breached their duty by establishing that the tile is, in fact, dangerously slippery and should not have been used at the Club's swimming pool.

Based on the above analysis, the motion for summary judgment by PEA and RGR is denied. The evidence shows that RGR was responsible for selecting and presenting the tile for approval to the construction committee. PEA, as overall architect of the plan, was involved in the presentation and ultimate approval of the tile chosen. Both entities were aware of the concern by DHI as to the tile's fitness. Accordingly, summary judgment is not appropriate as to these two defendants. Similarly, the motion by DHI is denied, based on its role as the contractor, as is the motion by Carnell, the designer of the pool, in particular as the evidence is conflicting or unclear as to how much responsibility Carnell had in the design of the pool walkways, whether it was aware of the alleged slipperiness of the tile and if so, whether it failed to take steps to address the problem.

The motion by Sand Dollar Pools is granted. There is no allegation that the installation of the tiles was done improperly or negligently, or that the pool itself was installed in a manner to create a hazardous condition. There is no evidence that Sand Dollar, hired by DHI to install the pool, had any say in the choice of materials used in the installation. Its June 14, 2006 letter, written after the pool was opened to the public, Sand Dollar Pools' principal expresses his opinion concerning the tiles, and buttresses plaintiffs argument that defendant contractors knew or should have known that the choice of tile was a design flaw.

Accordingly, it is

ORDERED that defendant Carnell Engineering, P.A's motion for summary judgment [*7](sequence number 007) is denied; and it is further

ORDERED that defendant DHI Construction Services, Inc.'s motion for summary judgment (sequence number 008) is denied; and it is further

ORDERED that defendant Sand Dollar Pools, LLC 's motion for summary judgment (sequence number 009) is granted and the complaint, and any cross claims, are dismissed with costs and disbursements to this defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that the action is severed and continues as against the other defendants; and it is further

ORDERED that defendants Perkins Eastman Architects, P.C. and R.G. Roesch Architecture & Landscape Architecture, P.C.' motion for summary judgment (sequence number 010) is denied; and it is further

ORDERED that the remaining parties shall appear for their previously scheduled mediation in Mediation-I on February 29, 2012.

This constitutes the decision and order of the court.

Dated: January 13, 2012____________________________________

New York, New YorkJ.S.C. Footnotes

Footnote 1: By order to show cause, plaintiff moved to vacate the default judgment and restore her case to the active calendar (Mot. Seq. 006). By decision and order dated December 20, 2010 (Doc. 43), another justice of this court granted plaintiff's motion and restored this action to the active calendar and, as well, vacated the orders dismissing the complaint as against each of the defendants (motion sequence numbers 002, 003, 004, and 005). Upon recusal of the previously assigned justice, the case and these motions were reassigned to this court. Inasmuch as it was unclear whether the files received were complete, and given some confusion in what papers had been accepted by the Motion Support Office for filing, by interim decision and order dated April 21, 2011, the court returned these motions, along with motion sequence number 006, to the Motion Submission Part in order for defendants to recreate and resubmit their motion files anew for decision (Doc. 44). Defendants have efiled their motions now bearing sequence numbers 007, 008, 009, and 010. However, motion sequence number 006 should be deemed decided by the December 20, 2010 decision and order (Doc. 43) and need not be further addressed.

Footnote 2:According to the printed copy of the online page from National Tile Pool, all tiles sold by it meet both ANSI and ACTMS (American Society of Testing and Materials) slip resistant standards (Doc. 67-4, Mot. ex. D).

Footnote 3:While post-accident remedial measures are generally not admissible to prove negligence, the court notes that after the accident, PEA informed the Club of a product that can be applied to tile edges to make them more slip resistant, and this product was applied (Doc. 66-7, Opp. ex. C [Wright EBT 55]).