The Supreme Court, Suffolk County, has granted summary judgment to the Long Island Ducks Professional Baseball Club, LLC, which was sued by a patron, who suffered an injury when she tripped and fell on a turnstile located at an entrance to the stadium.
In so ruling, the court noted the overwhelming evidence in support of the defendant’s motion in comparison to a paucity of evidence for the plaintiff.
On the day of the accident, June 30, 2009, 81-year-old plaintiff Edna Mawhinney went to the game with her minister, according to the court. She had been to the stadium twice previously and both times entered through a turnstile at the same gate where she had her accident. She did not have any difficulty entering the stadium on those occasions. Mawhinney never observed any accidents at the stadium nor had she ever complained about the stadium, prior to the date of her accident.
“On the day of the accident, there was only one turnstile to enter the stadium and one person taking tickets,” wrote the court. “There was a rubber mat on the grating of the turnstile with a half inch to one-quarter inch crinkle in it across the entire mat. The plaintiff did not request assistance as she entered the stadium. The ticket taker was to her left as she approached the turnstile. She was holding her ticket in her right hand and entered the turnstile leading with the right side of her body after handing her ticket to the ticket taker. Her pocketbook was draped over her right shoulder. She was holding her cane in her right hand at chest level and above the turnstile bar, although she could not remember whether or not she was using the cane that day. One bar of the turnstile pushed her and another held her back and she just tripped over the mat. She further stated that as she pushed the turnstile forward it spun around and made contact with her left side. She was not sure, but believed that it was her left foot which tripped. She fell forward through the turnstile onto her right side and her right hip was the first part of her body which contacted the ground.”
The court noted that Mawhinney did not complain about the mat “before or after her fall, but testified that she heard a member of her group say there was a crinkle in it after she fell.” Further, she “never asked anyone if they could open the gate so that she would not have to go through the turnstile. The plaintiff testified that she had fallen on a number of occasions prior to her accident. The plaintiff also suffers from post polio syndrome, which causes a weakness of the muscles.”
The court went on to cite the testimony of one of the plaintiff’s friends, who “felt that plaintiff’s fatigue and her gait and balance issues caused the accident.” Others, mostly Ducks employees, corroborated that perspective.
The court concluded that the Ducks “established its entitlement to summary judgment, showing through testimony and documentary evidence, as well as the affidavit of its expert, that it did not create and had neither actual or constructive notice of any alleged defect in the turnstile in question.”
The plaintiff’s allegations that the turnstile at the Duck’s stadium was too narrow and was otherwise defective in violation of the Americans With Disabilities Act (“ADA”) was also rejected by the court.
As a procedural matter, the ADA claims were not properly pled and were raised for the first time in opposition to the Duck’s motion for summary judgment. In addition, the plaintiff’s expert’s affidavit in support of the ADA claims was fatally flawed and it was not considered by the court. Specifically, the court noted that Raymond Schwartzberg, P.E. set forth incorrect measurements of the turnstile. The Ducks provided a design schematic for the turnstile that proved his claims were erroneous. The turnstile was two and a half inches wider than his measurements reflected, for example. His opinions were conclusory and unsupported. Likewise, his contention that the Duck’s failed to comply with requirements for handicapped access to facilities was defeated by the ADA Accessibility Guidelines of 1991. The Guidelines address the issues of turnstiles at 4.13.2 and state that revolving doors and turnstiles must not be the only means of passage at an accessible entrance or along an accessible route. An accessible gate or door must be provided adjacent to the turnstile or revolving door and shall be so designed to facilitate the same use pattern. The Ducks adduced testimony and photographs that the configuration at the Duck’s stadium turnstiles complied the ADA requirements. Consequently, the record lacked any facts which would support a claim by plaintiff under the ADA.
The court further noted that plaintiff’s expert failed to address one other fact in the record: approximately 30,000 attendees (including plaintiff) had gone through the turnstile during the season prior to plaintiff’s accident without incident. In fact, there were no prior accidents since 2002, so the conclusion that the turnstile was somehow unsafe was defeated by facts in the record.
Carla Varriale, one of the attorneys representing the Ducks said “this was a complete win for the Ducks. This decision shows that a case-whether based on negligence claims or ADA claims- can turn on gathering proper evidence and expert testimony. The Ducks were able to document how each of plaintiff’s claims were either erroneous or lacked either a legal or factual foundation. There was no issue with this turnstile being defective or dangerous.”
Edna Mawhinney v. Long Island Ducks Professional Baseball Club, LLC; Sup. Ct. N.Y., Suffolk Co.; INDEX No. 10-28456, 2014 N.Y. Misc. LEXIS 4066; 2014 NY Slip Op 32384(U); 9/4/14
Attorneys of Record: (for plaintiff) BONGIORNO LAW FIRM, PLLC, Mineola, New York. (for defendant) HAVKINS ROSENFELD RITZERT & VARRIALE, LLP, New York, New York.
