A New York state appeals court has declined to issue severe sanctions upon a school district that replaced the railings of its bleachers, which was a key piece of evidence in a plaintiff’s premises liability action against the school district.
The plaintiff, Betty L. Merrill, sued the district after she fell while climbing the retractable bleachers in the district’s gymnasium on Feb. 7, 2006. She testified that as she held the railing for support, while turning into a row, it swayed, causing her to fall. The railings for these bleachers were removable, and they were assembled and installed only when the bleachers were fully extended. When the bleachers were retracted against the gym wall, the railings were removed, disassembled and stored.
Months after the accident, the plaintiff sued. During an examination before trial held on April 29, 2008, the defendant’s witness revealed that the removable railing system used at the time of the accident had been replaced by fixed, permanent railings in the fall of 2007. Nevertheless, the plaintiff filed a note of issue in August 2008, certifying that all discovery was complete. When the defendant moved for summary judgment, the plaintiff opposed the motion in part on the ground that the bleacher’s railing system had been replaced during the pendency of the action. The trial court, after holding the motion in abeyance and inviting a request for spoliation sanctions, precluded the defendant from contesting the plaintiff’s description of the amount of sway in the railing and from offering proof of the condition of the railing system at the time of the accident. The court also denied the defendant’s motion for summary judgment. The district appealed.
In reviewing the case, the appeals court wrote that the defendant “established its prima facie entitlement to summary judgment by demonstrating that its bleachers and railings were regularly inspected, there was a minimal amount of sway in the railings that could not be completely eliminated and there had not been any complaints or prior accidents with respect to the railings.”
The burden then shifted to the plaintiff to raise issues of fact requiring a trial. In addition to the plaintiff’s testimony as to how the accident occurred, Carol Sullivan, an employee of the defendant, “testified that the railings always had a sway to them of three to four inches and that it was important to ensure that they were assembled properly each time they were installed to eliminate as much sway as possible. Viewing the evidence in a light most favorable to plaintiff, there is an issue of fact as to whether the defendant created a dangerous condition in its assembly of the railing on the date in question.”
Turning to the sanction for spoliation, the appeals court agreed with “the defendant’s contention that the plaintiff failed to establish that she is prejudiced by the replacement of the railings so as to warrant the sanction of preclusion,” which is the most severe sanction.
“Courts should consider the prejudice caused by the spoliation ‘in determining what type of sanction, if any, is warranted as a matter of fundamental fairness’ (Scarano v Bribitzer, 56 AD3d 750, 751, 868 N.Y.S.2d 147 [2008].
“As these railings were removed and stored when the bleachers were retracted after the accident, there was no possibility of inspecting them as they had been installed at the time of the accident. Nor did plaintiff come forward with any evidence that she sought to either preserve or inspect the railings, that she is prejudiced by having an expert witness without access to the railings, or that the defendant acted in bad faith, willfully or contumaciously (see Koehler v Midtown Athletic Club, LLP, 55 AD3d 1444, 1445, 864 N.Y.S.2d 823 [2008]; Denoyelles v Gallagher, 40 AD3d 1027, 1027, 834 N.Y.S.2d 868 [2007]). The plaintiff is able to rely on her own description of the accident and there are photographs of the railing system available. Based on these circumstances, an adverse inference charge at trial … is appropriate.”
Betty L. Merrill v. Elmira Heights Central School District; Supreme Court of New York, Appellate Division, Third Department; 509599, 2010 NY Slip Op 7466; 2010 N.Y. App. Div. LEXIS 7529; 10/21/10
Attorneys of Record: (for appellant) Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Gregory A. Cascino of counsel). (for respondent) Ziff Law Firm, L.L.P., Elmira (Adam M. Gee of counsel).
