A New York state court judge has granted summary judgment to Madison Square Garden (MSG) in a case in which the owner of the facility was sued by a patron, who slipped and fell after attending a basketball game.
In so ruling, the court found that the plaintiffs (the injured man and his spouse) offered “no testimony or other evidence as to the presence of spilled liquids or any other foreign material on the escalator steps” that could have caused the fall.
The plaintiff in the case was Gary Barnaba. He was allegedly injured on November 21, 2007 when he fell on a stationary escalator in MSG, which is owned and operated by MSG LP, a division of Cablevision. Barnaba, 66, was leaving the premises at the conclusion of a basketball game. He sued on February 13, 2008, claiming negligence and loss of consortium.
Specifically, he alleged that “the failure of the defendants in permitting the overcrowding on the non-working escalators and/or in not supervising and limiting such overcrowding created an unusually dangerous condition which was the sole and substantial proximate cause” of Barnaba’s injuries and that “the defendants had actual and/or constructive notice thereof.”
The plaintiff also claimed that the “dangerous condition” arose from “failing to adhere to safe and reasonable standards of crowd management,” and “in permitting and allowing plaintiff and other spectators to utilize an unsafe and uneven staircase.”
In addition, he alleged that the defendants failed “to adequately maintain safe, dry, and/or the escalator free from spilled alcohol, soda, and/or water.”
MSG countered that it “did not create the dangerous or defective condition which allegedly resulted in Barnaba’s injuries,” and that the plaintiff has not established that a dangerous crowd condition existed.
During discovery, it was revealed Barnaba weighed about 300 pounds and stood 5’9″ tall. He was wearing his bifocal eyeglasses at the time. He had had his right hip replaced several years prior to the incident. He had “been to MSG for collegiate basketball games” many times before.
Barnaba estimated that MSG was about three-quarters filled during the second of two games on the program, the one he came to watch. He recalled that most people stayed until the end of the game. He got up shortly after the game ended, and proceeded to the escalator. He did not see any staircases or elevators on the way to the escalator, but he acknowledged not looking for them. The crowd got “heavier” as he approached the escalator, with people also descending from higher floors, according to the plaintiff. No one touched him, or bumped into him as neared the escalator. Barnaba said that he saw no MSG personnel, ushers or security, in the space between the doorway and the escalator, although he had seen uniformed MSG personnel throughout the evening.
He did not remember whether there was any debris, litter or spilled liquids in the hallway or on the steps of the escalator. The escalator was stationary when he got there. He stepped onto the escalator, with his wife immediately in front of him. He said that he started walking down the center of the escalator holding onto the handrail on each side of him. When he was about halfway down the escalator, ten steps or so, he “felt something hit my right shoulder with some force. And it pitched me forward.” Before that, nothing, or no one, bumped or jostled him. He did not know what hit him, but he was told by others, strangers to him, not appearing to be MSG employees, that “someone tried to get by me in a rush.” He landed at the bottom of the escalator and was briefly unconscious. Barnaba had no recollection of his fall after being hit. He was removed from MSG by ambulance, and taken to the emergency room at Bellevue Hospital.
Barnaba further claimed there was a witness to the incident — the mother of a Syracuse University athlete — who said the plaintiff was pushed.
The court noted that the plaintiff failed to establish a prima facie case of negligence, which would have required that he “prove actual or constructive notice of the dangerous or defective condition and a reasonable time within which to correct or warn about its existence.” Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249, 472 N.Y.S.2d 368 (1st Dept), affd 64 NY2d 670, 474 N.E.2d 612, 485 N.Y.S.2d 252 (1984).
Furthermore, the plaintiff failed to show the defendant had done anything to contribute to the fall. “Barnaba was walking down the escalator unimpeded and unbothered by the crowd leaving the premises,” wrote the court. “Nothing about the circumstances differed from his many prior visits to MSG. He experienced no difficulties until something (presumably someone) hit him from behind. This event was not related to defendants’ conduct in providing egress to the plaintiff or the other patrons.”
The court continued, noting that the plaintiff “never asserted any actual flaw or defect in the escalator, or in its use as a staircase as the cause of Barnaba’s injuries. … Accepting for the sake of argument the truthfulness of the comments from the unidentified witnesses, the condition of the escalator is further removed as a causal factor in the incident.
“Finally, the plaintiffs offered no testimony or other evidence as to the presence of spilled liquids or any other foreign material on the escalator steps, or even argue that any foreign material caused Barnaba’s fall.
“The plaintiffs offer no factual allegations that would permit a factfinder to attribute liability to the defendants, either because of the creation, exacerbation or tolerance of a hazardous condition. Whoever or whatever knocked Barnaba down was not in any legally sufficient way connected to the defendants.”
Gary Barnaba and Sheila Barnaba v. Madison Square Garden, L.P., and Cablevision Systems Corporation; S. Ct. N.Y., N.Y. Co.; INDEX NO. 102461/2008, 2013 N.Y. Misc. LEXIS 2521; 2013 NY Slip Op 31270(U)/ 6/18/13
