Pemberton v Health
Annotate this CaseDecided on August 3, 2012
Supreme Court, Erie County
Roy T. Pemberton and LYNETTE PEMBERTON, Plaintiffs,
against
Kaleida Health, Defendant.
2011-458
Counsel for Plaintiff:
Allan M. Lewis, Esq.
Lewis & Lewis, P.C.
800 Cathedral Park Tower
37 Franklin Street
Buffalo, New York 14202
Counsel for Defendant:
Victor A. Oliveri, Esq.
Gibson, McAskill & Crosby, LLP
69 Delaware Avenue, Suite 900
Buffalo, New York 14202
Timothy J. Walker, J.
Defendant has moved for summary judgment pursuant to CPLR §3212 and relevant case law. This is an action for negligence in which the Plaintiffs allege that Defendant provided Plaintiff - a non-employee delivery man - with a defective and unsafe freight elevator (the "Freight Elevator").
Plaintiffs allege that as a result of Defendant's negligence, Plaintiff, Roy T. Pemberton, injured his left hand in the Freight Elevator located at Women & Children's Hospital of Buffalo ("WCH") on November 5, 2009 (the "Incident").
The record establishes that on the day of the Incident, Mr. Pemberton was employed as a truck driver and delivery man for Teal's Express. On that date, he was delivering medical [*2]supplies to WCH as part of his regular employment. At the time of the Incident, the Freight Elevator was located in an area adjacent to WCH's freight entrance. Posted outside of the Freight Elevator were an in-house telephone and a listing of several telephone numbers for, inter alia, the shipping and receiving department, which is located in WCH's basement. If a delivery person dialed the shipping and receiving department in order to make a delivery, and received no response, there was also an extension listing for the security department.
Mr. Pemberton delivered supplies to WCH on at least two occasions prior to the date of the Incident [Transcript of Deposition of Roy G. Pemberton, taken on May 10, 2011, a copy of which is annexed as Exhibit "H" to the Affirmation of Katherine E. Wild, Esq., sworn to on March 26, 2012, at p. 20]. He described the "procedure" he followed for delivering freight to WCH as follows:
We'd go into the shipping and receiving area, back in, grab my bill, grab my freight out of truck ... and go in, and dial the number on the wall. ... That number said shipping and receiving and it had an extension number. Just a few numbers you'd just hit. And I'd usually call and they'd answer. And I just said, "I have some freight up here." And they [WCH employees] would come up [in the Freight Elevator] and sign for it and that would be it [Id, at 21] [emphasis added].
On one delivery prior to the date of the Incident, Mr. Pemberton was a passenger in the Freight Elevator, while another driver operated it [Id, at 22-23]. On that occasion, Mr. Pemberton chose not to wait for a WCH employee to come from the basement and take the package from him at the loading dock (contrary to the aforementioned delivery procedure) because it was "quicker" [Id, at 25].
On the date of the Incident, Mr. Pemberton first followed the delivery procedure and called the shipping and receiving department using the in-house telephone. However, when "[t]hey didn't answer the phone [after he] called a couple times ... [he decided to] just take [the boxes] down to [the shipping and receiving department]" and attempted to operate the Freight Elevator himself [Id, at 28-30].
The record reflects that the Freight Elevator is composed of a set of exterior, vertical bi-parting doors that close between the floor and the ceiling (the "Exterior Doors") (which Mr. Pemberton described as "two halves and they were blue and they met together") (Id, at pp.
30-31), and an internal metal gate, which closes from the ceiling to the floor.
On the day of the Incident, and after "looking at the [locking latch] trying to figure out how to open the [Exterior Doors]", Mr. Pemberton "turned the [locking latch ... to unlock the [Exterior Doors]," and proceeded to open the Exterior Doors by pushing up on the upper portion of the doors, at which time the bottom portion of the doors lowered by way of counterweights - of which Mr. Pemberton was aware [Id, at pp. 31-36]. After opening the Exterior Doors and interior gate, Mr. Pemberton stepped inside of the Freight Elevator. Attached to the top portion of the Exterior Doors was a nylon strap, which Mr. Pemberton utilized to pull down and close the upper portion of the Exterior Doors. He reached for the nylon strap with his right hand and, without paying attention to his left hand, pulled the top half of the Exterior Doors down [Id, at 33-39].
In the course of this process:
[*3]
[t]he bottom [portion of the Exterior Doors] caught [his] hand as it was coming up [due to] the counterweights kick[ing] in ... [and] the two doors met and my hand was in the middle [Id, at 38].
In support of the motion, Defendant submitted the Affidavit of George Armele, Manager for Plant Operations for WCH. Mr. Armele stated that it would have been standard procedure for the security department to report the claimed incident to him, and that it would have been standard procedure for him to inspect the Freight Elevator after receiving a report of an incident. In particular, he recalled:
...performing such an inspection. Had I found any mechanical or other problems, I would have promptly reported them to Otis, a corporation with whom [Defendant] maintains an exclusive contract to perform all routine maintenance and repairs. As I found the Freight Elevator to be properly functioning, I made no such report.
The relevant repair and maintenance records for the Freight Elevator establish that there were no complaints about the Exterior Doors in the two and one-half months prior to the date of the Incident, and the Freight Elevator passed all 2009 required government inspections during that time frame.
APPLICABLE LAW
A property owner has a nondelegable duty to maintain its elevators in a reasonably safe manner, and may be responsible for elevator malfunctions or defects causing injury about which it had constructive or actual notice or, where, despite having an exclusive maintenance contract with an elevator company, failed to notify the elevator company of a known defect [see, Isaac v. 1515 Macombs LLC, 84 AD3d 457, 458 (1st Dep't 2011)].
Here, Defendant has demonstrated entitlement to summary judgment by establishing that it had neither constructive, nor actual notice of a defect in the Freight Elevator [see, Santoni v. Bertelsmann Property, Inc., 21 AD3d 712, 713 (1st Dep't 2005)]. In opposition, Plaintiffs failed to produce evidence of a prior defect with the Freight Elevator that would have provided the requisite notice to Defendant [Id] [emphasis added].
While Plaintiffs submitted the Affidavit of Patrick McPartland, an Elevator Project Manager/Modernization Manager for Schindler Elevator, Mr. McPartland offered only a conclusory opinion that the Freight Elevator's Exterior Doors "did not provide for a gap of at least three-quarters of an inch when closed, a violation of the American Society of Mechanical Engineers' Safety Code for elevators and escalators existing at the time of the [Incident]". However, this opinion was completely speculative and conclusory, in that it failed to set forth foundational facts, and failed to recite the manner in which Mr. McPartland reached his conclusions [see, Ciccarelli v. Cotira, Inc., 24 AD3d 1276, 1277 (4th Dep't 2005)].
In addition, by making the conscious decision to operate the Freight Elevator, Mr. Pemberton's own conduct constituted the sole proximate cause of the injuries he sustained to his left hand on the date of the Incident [see, Gusek v. Compass Transp. Corp., 266 AD2d 923 (4th Dep't 1999)].
Accordingly, Defendant's motion for summary judgment is granted and the complaint is hereby dismissed.
This constitutes the Decision and Order of this Court and shall be filed as such. The [*4]mailing of a copy of this Decision and order by the Court shall not constitute notice of entry.
Dated:August 3, 2012
Buffalo, New York ________________________________________
Hon. Timothy J. Walker, J.C.C.
Acting Supreme Court Justice
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