Linekin v Global Experience Specialists, Inc.
Annotate this CaseDecided on December 16, 2016
Supreme Court, Queens County
Patricia Linekin, Plaintiff,
against
Global Experience Specialists, Inc. and VISUAL MARKETING RESOURCES, INC., Defendants.
GLOBAL EXPERIENCE SPECIALISTS, INC., Third-Party Plaintiff,
against
VISUAL MARKETING RESOURCES, INC., Third-Party Defendant.
13656/2014
Robert J. McDonald, J.
The following papers numbered 1 to 11 read on this motion by defendant/third-party plaintiff, GLOBAL EXPERIENCE SPECIALISTS, INC. (Global), for an order pursuant to CPLR 3212, granting Global summary judgment, dismissing plaintiff's complaint and granting summary judgment as to its third-party complaint against VISUAL MARKETING RESOURCES, INC. (Visual):
Papers/Numbered
Notice of Motion-Affirmation-Exhibits...................1 - 4
Plaintiff's Affirmation in Opposition-Exhibits..........5 - 7
Visual's Affirmation in Opposition......................8 - 9
Reply Affirmation......................................10 - 11
This is an action for damages for personal injuries sustained by plaintiff, Patricia Linekin, as a result of a trip and fall on August 7, 2013. The complaint alleges that she was injured while walking in an exhibit hall within the Philadelphia Convention Center during the annual meeting of the American Association of Diabetes Educators. Visual was contracted to build the exhibit booth, including a hardwood floor, for Kibow Biotech, an exhibitor at the convention. Global was retained by American Association of Diabetes Educators to be the preferred service contractor for the Convention. However, exhibitors could elect to use an Exhibitor Appointed Contractor rather than Global to construct their booths for the convention.
Plaintiff commenced an action against defendant Global by filing a summons and complaint on September 15, 2014. Issue was joined by defendant Global serving a verified answer dated October 6, 2014. On December 22, 2014, Global filed a third-party summons and complaint against defendant/third-party defendant Visual. Visual served a verified answer to the third-party complaint on March 11, 2015. On March 24, 2015, plaintiff filed an amended complaint against both defendants. By Short Form Order dated October 25, 2016, this Court denied Visual's motion for summary judgment. Global now moves for summary judgment.
Plaintiff testified at an examination before trial taken on September 15, 2015 that she tripped and fell on the wooden floor located at the Kibow Biotech exhibit booth. At the time the incident occurred, she was looking at the ceiling to see the number of the booth that she wanted to go to. Her foot hit the elevated wooden rim of the booth and she tripped. The elevated floor was at least two to three inches. Surrounding the booth was wrinkled carpet. She did not see the elevated wooden surface prior to the accident.
Global produced Pamela Douglas, Senior Operations Coordinator and Safety Lead, for an examination before trial on March 15, 2016. Global was the preferred service contractor for the Convention. However, exhibitors were free to contract with their own contractors for the construction of their booths. An exhibitor chosen contractor is called an Exhibitor Appointed Contractor (EAC). Visual was an EAC for the booth where plaintiff's incident occurred. Once Global was notified that Kibow was using Visual as an EAC to construct their booth, Global [*2]relinquished all responsibility for the booth. Global did not inspect the booth at any time prior to, during, or after the construction. Global did not make any notes regarding the booth's assembly. Global's sole responsibility once an exhibitor announced their intention to use a specific EAC was to make sure that the EAC being used had insurance so that an EAC's workers would be sufficiently protected when constructing the booth. Ms. Douglas testified that she was responsible for ensuring that the facility was in a safe condition for the workers setting up the booths. She did not inspect the subject booth prior to plaintiff's incident. She responded to a call from her safety manager who told her about someone falling at the Kibow Biotech exhibit booth. When she arrived at the booth, plaintiff told her that she tripped on the subject wooden floor. Global was not aware of any prior accidents or complaints regarding the subject wooden floor prior to plaintiff's incident.
Visual produced Alan Mullavey, Shop Foreman, for an examination before trial on March 15, 2016. Mr. Mullavey testified that the wooden floor is plywood with a finished veneered surface. The floor is about an inch and a half off the carpet but moldings around the entire floor provided a three-inch wide transition which is sloped from 3/8 inches to the full one and a half inches. The entire floor is tapered. The floors come from the manufacturer with the tapered edges designed and created by the manufacturer. He personally inspected the floor after the workers installed it. He did not notice any problems with the floor. It laid flat. The floors were assembled according to Kibow Biotech's floor plans.
In support of the motion, Global also submits a copy of the contract between Global and Visual. Specifically the contract states that "aisles and public spaces are not part of the Exhibitor's booth", and therefore, all activities must be confined to the exhibit space of the exhibitor. It further states that Visual agreed to "indemnify, defend, and hold [Global] harmless from and against any and all claims, lawsuits, demands, liability, costs and expenses . . .arising out of [Visual's] operations." Additionally, Global obtained a Notice of Intent which provides that Global "will have no liability to any party for damage or injuries caused by Exhibitor or its third-party agents."
Based on the submitted documents and testimony, Global contends that it did not owe a duty of care to plaintiff, it did not launch a force or an instrument of harm, and plaintiff failed to identify a defective and/or dangerous condition that caused her harm. Additionally, Global contends that there are no issues [*3]of fact regarding its claims for indemnification as to Visual.
Plaintiff opposes the motion contending that Global owed a duty of care to plaintiff based on Ms. Douglas' testimony that prior to the date of the incident, her duties and responsibilities included inspecting the facility to make sure that there was nothing dangerous. Based on such testimony, plaintiff concludes that Global had control and occupancy of the subject premises. Therefore, Global owed a duty of care to plaintiff which was breached by Global's failure to inspect or make safe the area where plaintiff tripped and fell.
Visual opposes the motion contending that issues of fact exist as to Global's own negligence, including, inter alia, Global's placement of the signs hanging from the ceiling. Additionally, Visual contends that there are issues regarding the indemnification agreement.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Before a defendant may be held liable for negligence, it must be shown that the defendant owes a duty to the plaintiff Kallem v Mandracchia, 111 AD3d 893 [2d Dept. 2013]; Safa v Bay Ridge Auto, 84 AD3d 1344 [2d Dept. 2011]). A party who enters into a contract to render services, as here, may be said to have assumed a duty of care and could potentially be liable to third persons: "(1) where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party's duties and (3) where the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal v Melville Snow Contractors, Inc., 98 NY2d 136 [2002][internal quotation marks omitted]).
Here, plaintiff was not a party to the contract between Global and American Association of Diabetes Educators. Accordingly, any duty from Global, an independent contractor, to plaintiff must be established through one of the three delineated exceptions set forth in Espinal. Ms. Douglas testified that Global played no part in the design, construction, supervision, maintenance, control, or inspection of the subject booth, [*4]including the wooden floor. Based on such, this Court finds that Global did not launch a force or instrument of harm as Gloabl played no part in the installation or inspection of the subject booth or the wooden floor. Additionally, Ms. Douglas' testimony that Global's responsibility was to inspect the premises for the safety of Global workers did not entirely displace Visual's duty to maintain the subject booth safely for visitors like plaintiff. Accordingly, this Court finds that the opposing parties failed to raise an issue of fact as to whether Global owed a duty to plaintiff.
Moreover, Global lacked actual notice of the alleged condition prior to plaintiff's incident as Ms. Douglas testified that she had no knowledge of any accidents or complaints involving the raised wooden floor prior to plaintiff's incident. Ms. Douglas also testified that Global did not participate or supervise in the installation or construction of the booth or wooden floor, and that Global was under no duty to and did not perform an inspection of the subject booth or wooden floor after Visual installed it. Thus, Global lacked any constructive notice of the alleged condition.
Lastly, as to Visual's argument that Global caused or contributed to the incident by hanging signs identifying the booths, this Court dismisses such argument. Plaintiff's Amended Complaint only mentions exhibit booths and the raised wooden floor and plaintiff's Bill of Particulars only mentions acts and/or omissions of negligence regarding the wooden floor. Plaintiff also specifically testified, and this Court previously found in its Order dated October 25, 2016, that the elevated rim of the booth was the cause of the incident.
As this Court finds that Global is entitled to summary judgment, it is unnecessary to determine that branch of its motion seeking indemnification.
Accordingly, for the reasons set forth above, it is hereby,
ORDERED, that the motion by defendant/third-party plaintiff, GLOBAL EXPERIENCE SPECIALISTS, INC. is granted, plaintiff's complaint is dismissed as against defendant/third-party plaintiff, GLOBAL EXPERIENCE SPECIALISTS, INC., only, and the Clerk of the Court shall enter judgment accordingly.
Dated: December 16, 2016
Long Island City, NY
____________________
[*5]ROBERT J. MCDONALD
J.S.C
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