Absey v Penguin Supermarket, Inc.

[*1] Absey v Penguin Supermarket, Inc. 2008 NY Slip Op 50438(U) [18 Misc 3d 1144(A)] Decided on March 6, 2008 Supreme Court, Kings County Kramer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 6, 2008
Supreme Court, Kings County

Yvonne Absey and Albert Absey, Plaintiffs,

against

Penguin Supermarket, Inc., Defendant.



16151/06



Plaintiff was represented by Becker & Russo, 111 John St., NY, NY 10038.

Defendant was represented by Hammill, O'Brien, Croutier, Dempsey & Pender, PC, 6851 Jericho Turnpike, Syosset, NY 11791.

Herbert Kramer, J.

Plaintiff was injured as she was attempting to leave the defendant's supermarket through an automatic entrance door. Plaintiff, who walked with a cane, testified that she had rung for someone to unlock the gate that prevented customers from taking shopping carts into the lot and when no one came to help her went into the store to complain. After lodging her complaint she tried to get back outside to where she had left her groceries through the entrance door and that is when the accident occurred. Her strategy was not unique. The surveillance film submitted by defendant on its motion showed a number of individuals who like the plaintiff went "out the in doorway." The store manager testified that employees would use that door to go out particularly when they brought the wagons out.

Defendant moves for summary judgment claiming lack of notice and arguing that in any event the plaintiff was the sole proximate cause of her injury. Plaintiffs oppose this motion arguing that the defendant failed to establish the absence of notice as a matter of law in that it did not demonstrate when the door was last inspected, but rather relied upon the testimony of the assistant store manager who indicated that he never inspected the door and that there was no preventive maintenance care.

Ordinarily this might well have disposed of the defendant's motion in light of the significant burden ordinarily imposed upon movants in these circumstances. See e.g.. Santoni v. Bertelsmann Property Inc., 21 AD3d 712(lst Dept 2005). In Santoni the alleged cause of the accident was malfunctioning elevator doors. The Santoni defendants met their burden on summary judgment by demonstrating inter alia that the building elevators were thoroughly [*2]inspected weekly and that 11 days prior to the incident a mandatory New York City Inspection was done and an "annual supervisor's" survey was performed 17 days prior to the incident. The defendants therein had an expert who opined that the accident as described by the plaintiff could not have occurred as she indicated based upon the function of the mechanisms involved. Thus it was held that the defendants " tendered evidentiary proof in admissible form' that they had no notice of nor did they create any defective condition." Id. In the instant matter the evidence falls far short of this standard.

However, the defendant submits the case of Zona v. Jeld Wen, 34 AD3d 1189 (4th Dept. 2006) affd. 8 NY3d 911(2007) which also involved an automatic door. In Zona, the moving defendants were deemed to have met their burden of going forward and establishing that they did not create the dangerous condition and lacked actual or constructive notice of it and it was the plaintiff whose expert's testimony was deemed insufficient to raise an issue of fact. The dissenters however pointed out that the store manager testified that the door worked on the day in question as it had been designed to do in that it closed whether or not a person was standing in the doorway, and that there were no warning signs located at or near the door. Under these facts, the dissenters opined that the defendants did not meet their burden since they failed to establish that "maintaining the premises with such a door and no warning signs was reasonably safe in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk. For example, [the dissenters point out] defendant did not establish that the door as designed was consistent with industry standards or that it was not feasible to install a door that would not automatically close when a person was in its path." Id. Under these circumstances, the dissenters opined, the burden never shifted to the plaintiff and any deficiencies in the expert's opinion are irrelevant.

Here, however, the evidence including the surveillance films submitted on this motion tended to show that the door did in fact work on the day in question in that it was responsive to traffic entering the store and did remain open for a period of time to allow ingress. Thus under Zona, supra, this Court is constrained to hold that the defendant met its burden.

That having been said, the burden now shifts to plaintiff to demonstrate the existence of a triable issue of fact upon the question of whether the defendant "exercised reasonable care under the circumstances to remedy the condition and to make the property safe, based on such factors as the likelihood of injury to those entering the property and the burden of avoiding the risk." DiVietro v. Gould Palisades Corp., 4 AD3d 424(2d Dept. 2004).

This, the plaintiff accomplished through the affidavit of her expert, a certified door consultant with over forty years of experience involving doors and door safety. Unlike the plaintiff's expert in Zona, supra, whose report the majority characterized as being "[w]ithout even the semblance of a foundation based upon facts in the record or personal knowledge," id. at 1189,[FN1] the report submitted by the plaintiff's expert herein had the "necessary probative force to [*3]constitute prima facie evidence that the [automatic door] was not reasonably safe for its intended use." Id.

The plaintiff's expert visited the site approximately two months after the accident. He examined the door and the sensory system. He reviewed the deposition testimony of the plaintiff and the witness produced on behalf of the defendant. He reviewed the CD of the actual happening of the plaintiff's event which was provided by the defendant's store security system and noted that the "plaintiff was struck by the closing door as she attempted to exit the store after numerous individuals and store employees (including employees pushing shopping carts out the in door) had done the exact same thing." He notes that the small six inch sign on the door indicating that it was not an exit was not observable when the door was in the open position, which is the position it was in at the time of the plaintiff's accident.

The expert set forth the ANSI standards applicable to the circumstances. [FN2] The expert stated that "a forty-two inch door width such as the one in this case should have had an extended zone [of safety] of forty -seven inches. Clearly by reviewing the CD this was not present on the date of the event. The door should not have been able to close once Mrs. Absey was in the safety zone'[FN3] as she clearly was from reviewing the CD." He noted that the overhead sensor was still not properly working when he visited the site more than two months after the plaintiff's event.

In this regard, he opined that "every automated door should be checked daily to make sure that safety sensors are in place and operating. In fact there was a decal on the door indicating that there should be daily inspections." Yet he found in his review of the testimony of the store manager that there was no preventive maintenance and that no one checked the door even after the happening of the accident.

Thus the plaintiff through her expert, who offered foundational facts and industry standards to support his opinion, demonstrated that a question of fact exists as to the negligence of the defendant in failing to properly maintain this door so as to provide for the safety of its patrons. It is for the trier of fact to determine to what extent, if any, the plaintiff's conduct contributed to the happening of the accident. Although a jury may eventually find that the [*4]plaintiff's conduct was unwise, it cannot be said as a matter of law that her conduct was such as to be the sole proximate cause of the injury. Nor could it be said that her conduct was unforeseeable in light of the fact that a jury could well find that the defendant was aware that patrons and store employees used the door in the same fashion as did the plaintiff.

Accordingly, the defendant's motion for summary judgment is denied.

This constitutes the decision and order of the Court.

J.S.C. Footnotes

Footnote 1:According to the appellate brief submitted in Zona, the plaintiff's expert had inspected the door four years after the incident when the door in question was broken and was not in the same condition as it was when the incident occurred. Moreover plaintiff's expert did not provide any information to demonstrate that he had any experience or expertise in the operation or design of motion sensor doors. He merely stated that he was an architect. He concluded that the door was defectively designed because he went to two other local stores and compared their doors to the defendant's door.

Footnote 2: The standards required that " [A] safety zone shall be provided on the swing side of all power operated swinging doors.' " ANSI A 156-10 Para 8.12." The safety zone shall extend five inches minimum beyond the leading edge of the door in the open position when measured at the center of the door opening.' " Para. 8.13. According to the expert, "the door, according to ANSI standards (par 2.31) should be equipped with a stay' which would stop the moving door when, or if, a person unknowingly approaches that side of the opening cycle of its outward movement.(ANSI A 156-10 para 2.10 and 2.20)."

Footnote 3:The expert explained that "the door assembly in a single operation needs sensors to protect and operate an automated door. Each sensor serves to create a safety zone.' This safety zone protects an area where the door operator shall not operate in the safety zone if occupied by persons or objects moving or stationary."