This was originally published on the SGR Blog.
Would Court Decide Who of Many Actors Was Responsible for the Accident?
Rose Wettreich was injured when the automatic sliding doors in the vestibule of Shoprite of Commack, LLC closed on her as she was exiting the supermarket using a walker. Wettreich was knocked down and sustained a fractured hip that required surgical repair. Litigation ensued and the parties in interest remaining in the matter were Shoprite, Stanley Security Solutions, Inc., Stanley Access Technologies, LLC, and Mackenzie Automatic Doors, Inc.
Wettreich’s claims appeared to rest upon the theory of failure to properly maintain, control, and inspect the operation of the sliding glass doors.
All of the defendants moved for summary judgment dismissal of all claims and cross-claims. Shoprite was the only co-defendant opposing the Stanley defendants’ motion. Shoprite and Wettreich opposed Mackenzie’s motion, and Wettreich opposed Shoprite’s motion.
Consideration of the motions required a basic understanding of the components of the automatic sliding door and how they were designed to work. The components of the doors, their nomenclature, the functioning of their various parts as designed, plus the methods of testing the doors as set forth in particular manuals referred to by the witnesses, were undisputed.
Accordingly, it was the Court’s understanding that the automatic doors involved in the accident were sliding, glass exit doors. Those doors opened onto the outdoors from the vestibule areas of the Shoprite store.
Aside from the door panels themselves, the automatic door system was comprised of a number of different types of sensors. Stanley’s witness, safety assurance manager David Sitter, testified that SAT manufactured and sold the door to Melito in 2010, more than nine and one-half years prior to the date of the accident. Sitter testified that he was able to identify the particular doors involved in the accident and that the doors were installed along with a sensor package that was also installed, both by Mackenzie.
According to Sitter, the doors were equipped with two motion sensors, a presence sensor called a Stan-Guard, and two holding beams. The two motion sensors were attached to the header above the door, with one on the inside of the door and the other on the outside of the door. The holding beams were located in the side panels of the door, with one at a height of approximately two feet and the other at a height of approximately four feet. The Stan-Guard was mounted underneath the header of the door so it looked down into the threshold area. SAT did not manufacture any of the sensors; rather, it purchased them from other companies and were included with the door sent to Mackenzie for installation.
The motion sensors detected motion coming to or going away from the door, from about four to five feet away from the door. If the door was closed, those sensors would cause the door to open, and if the door was already open, the sensors would keep the door open.
The holding beams were described by Sitter “like an electronic eye on a garage door.” If anything crossed the beam, it was classified as a “detect,” and that “detect” signaled the controller to either open the door or keep it open.
The Stan-Guard, as described by Sitter, “looks for objects or persons in the threshold area within its coverage. If it detects presence, it will keep the door open for a minimum standard of thirty seconds.” When no one or nothing is in the threshold area, the red light on the Stan-Guard remains lit, but when there is something in the threshold area, the light goes out. The threshold area was generally agreed upon by all of the defense witnesses as consisting of an area approximately ten inches from the door panels, with a minimum of five inches from the door panels, across the whole opening.
Monitoring all of those types of sensors was what was called the controller. According to Sitter, “[t]he controller is always looking for detects. It’s not distinguishing between one type or another, it’s just looking for detects. [The controller] can only allow a closure of a door after a hold up period and an expiration of all of the sensor detects[,] which is motion sensors, the presence sensor Stan-Guard and then the holding beams.” The controller was a single unit that “takes detects or signals from any of the sensors and then logic dictates signals to the motor whether to close or open the door.”
Sitter also explained that any detects from the Stan-Guard presence sensor were not triggered until motion was first detected. In essence, the motion sensor triggered the presence sensor: “At any time after the motion sensor detects something, if there is something, the presence sensor detect, then that will he sent to the controller.” According to Sitter, “[i]t makes sense because you can’t get into the presence zone without going through the activation zone first.”
Shoprite contended that it was entitled to summary judgment dismissal of the complaint and all cross-claims because it did not create any defective condition; did not have actual or constructive notice of any such condition; and did not have control over the doors and sensors that were installed in 2010. And that Shoprite itself could not service those doors/sensors; contracted with Mackenzie for periodic maintenance of the doors; and the video of the incident showed that the doors were operating properly. Shoprite further asserted that the testimony of Mackenzie’s witness demonstrated that Wettreich walked so slowly toward the doors that she did not activate any sensors triggering the doors to remain open.
Summary judgment is a drastic remedy and should only be granted in the limited circumstances–where the Court finds as a matter of law that there is no genuine issue as to any material fact. The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party. Supreme Court’s function on a motion for summary judgment was issue finding, not issue determination.
A property owner is charged with the duty to maintain the premises in a reasonably safe condition. But a property owner may be held liable for damages resulting from a hazardous condition on its premises if it created the hazardous condition or had either actual or constructive notice of the condition in sufficient time to remediate. To constitute constructive notice, the defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit defendant to discover and remedy.
To be entitled to summary judgment, a defendant is required to show, prima facie, that it maintained the premises in a reasonably safe condition and that it did not have notice of or create a dangerous condition that posed a foreseeable risk of injury to persons expected to be on the premises. Specifically, with respect to constructive notice, a defendant must tender some evidence establishing when the area where the accident occurred was last cleaned or inspected prior to the plaintiff’s fall. Reference to general cleaning or inspection practices is insufficient to establish a lack of constructive notice in the absence of evidence concerning specific cleaning or inspection of the area.
Shoprite’s ability to make a prima facie showing was defeated by the proof submitted upon its own motion papers. The deposition testimony of David Sitter not only described the components of the sliding glass, but he specified the testing procedure for each of the different types of sensors on the doors.
Donald Mattson, Mackenzie’s vice president of outside sales and a fifty-year employee of Mackenzie, also testified as to the three types of sensors on the doors: a motion sensor, the active presence sensor (the Stan-Guard), and the holding beams. Like Sitter, Mattson testified as to the same steps to he performed as part of the daily safety check of the doors and the sensors. Moreover, Mattson testified to the same dimensions of the “threshold zone” for the Stan-Guard/presence sensor and that, if there was someone or something in that zone, the red light on the Stan-Guard would turn off “when the control sensor senses you.”
Mattson also testified about the terms of the service contract between Mackenzie and the store stating that it was Shoprite’s responsibility to inspect the automatic door equipment daily, document the check and notify Mackenzie if the equipment was malfunctioning. In fact, according to Mattson, the daily safety check documents were included with the service contract packets sent to Shoprite every year since on or about 2013. Further, in case of an incident, the service contract provided that the door must be turned off and Mackenzie notified.
It was evident from the testimony of Shoprite’s manager, John Budd, that none of that safety testing described by Sitter and Mattson was done by Shoprite on any basis, let alone on a daily basis. Budd testified that he did not even know that there was a “Daily Safety Check” document, and he did not know what types of sensors were on the doors or the different functions of the three types of sensors. According to Budd, the daily check of the doors consisted of himself and all of the employees walking through the door as they exited and entered the store, but no records of even this activity were made/kept.
Sitter testified that simply walking through the doors was an insufficient safety check and that, with respect to the Stan-Guard sensor, someone had to stand in the threshold area, as part of the daily safety check. But there was no evidence that Shoprite performed any of the daily safety check steps on any of the sensors as testified to by Sitter and Mattson.
Accordingly, and despite the video of the incident, Shoprite could not establish prima facie that it did not have constructive notice of the alleged defective condition that caused the doors to close on Wettreich, knocking her down.
Also fatal to Shoprite’s ability to demonstrate its prima facie entitlement to summary judgment was the fact that Mackenzie’s witness/ Mattson and Stanley’s witness/ Sitter had differing opinions as to why the doors closed on Wettreich. Based upon their demonstrated familiarity with the door model, plus their background, education and experience, Mattson and Sitter were the closest approximations of expert testimony offered by Shoprite, although the Court recognized that Shoprite had not submitted any evidence from an independent expert. It was beyond cavil that counsel’s opinion that the video showed that the doors were working properly on the date of the was unavailing.
Sitter testified that, after reviewing the video of the incident, it was his opinion that Wettreich was within five inches of the panels, and he stated that he “kn[ew] that Stan-Guard is perfectly capable of picking her up and getting a detect where she is located,” but the Stan-Guard “did not get a detect off of her. It should have. At this point I would say that it most likely was an adjustment issue with the Stan-Guard.” Sitter explained that the sensor did not appear to fail outright, but that “[o]ver time the sensitivity sometimes will need to be increased in order to maintain detection per the standard,” which was “to be able to detect an individual of minimal height of twenty-eight inches within five inches of the panels.” According to Sitter, a change in sensitivity of the Stan-Guard would be detected by performing daily safety checks.
Mattson, on the other hand, testified that because Wettreich was not moving at more than four inches or six inches per second in order to activate the door, the Stan-Guard did not sense that there was anything there. In addition, the holding beams did not activate to stop the doors from closing because the video showed that the legs of the walker were beyond the holding beams, but her legs had not yet reached the holding beams. In other words, although Wettreich was holding onto the walker, the walker was across the threshold while she was still in the vestibule, thereby forming a bridge over the holding beams rather than obstructing them, which would have kept the doors open.
Mattson explained that the holding beams were a momentary sensor– so in case there was something in the way of the doors, the doors would stay open. The timing on the holding beams was different than the timing on the motion sensor, which would open the doors to a full open position upon detecting motion within four or five feet of the door. Further according to Matson, “[i]f you stop short of the safety sensing area and you stand there, and you don’t move faster than six inches, there is no sensor that is picking you up.”
With respect to Wettreich depicted in the video, she was “not moving four inches per second. The holding beam reactivates the door; however, it does not go to a full open position. Therefore, the Stan-Guard does not come on because the Stan-Guard is only on when the door is in a full open position. Then the woman stops at that point again not activating the door or any of the sensors.” When asked if that was a flaw in the system, Mattson answered that. “the code says that someone has to be moving six inches per second…[i]f it’s a flaw, it’s a flaw in the code.”
Sitter was of the opinion that Wettreich’s presence should have been detected by the Stan-Guard because she was in the threshold area. But Mattson, in effect, blamed Wettreich and perhaps the “code” setting a standard of movement as four or six inches per second. Accordingly, there existed a “battle of the experts” that required denial of the motion.
So Shoprite’s motion for summary judgment was denied based upon its failure to sustain its prima facie burden.
Mackenzie sought summary judgment dismissal on the basis that it had no duty to Wettreich due to the limited contract for services with Shoprite and because Mackenzie was not on notice of any alleged defective condition.
Mackenzie installed the doors and entered into a service contract with Shoprite on or about 2013/2014, which, as Mattson testified, included the yearly service contract and the daily safety check documents that were part of the contract package, all of which was sent to Shoprite every year. The last time that Mackenzie was present at Shoprite prior to the accident was in August 2018 when it performed a service call due to a problem with the door’s bottom track assembly. Mackenzie did not return to Shoprite until April 2019. Mattson testified that the reason for the service call in August 2018 was because the door’s track assembly was problematic; the bottom track was “in bad shape and had to be replaced.” Although that issue would not affect the functioning of the sensors or Shoprite’s ability to inspect the various sensors as recommended, the track assembly was responsible for the smooth opening and closing of the doors. In August 2018 Mackenzie provided Shoprite a quotation to fix the track assembly but, according to Mattson, Shoprite never responded or otherwise approved that the work be done.
The yearly service contract submitted by Mackenzie dated August 5, 2018 and executed by Mattson on behalf of Mackenzie and by Stephen Simonetti on behalf of ShopRite, specified that it was Shoprite’s “responsibility to inspect the automatic door equipment daily documenting the check…”. Included with the contract, and authenticated by Mattson, was the document entitled “Daily Safety Check For Your Customers’ Safety and Your Own Protection.” As outlined by Mattson in his testimony, the steps to check each of the separate sensors was stated in plain language, and the steps to check systems with overhead threshold safety systems (Stan-Guards) appeared on that document. Diagrams appeared alongside the written instructions. The effective term of the service contract was August 16, 2018 to August 15, 2019, thereby covering the date of Wettreich’s accident with the door. The Court agreed with Mackenzie’s contention that the contract called for Shoprite “to act as its ‘eyes and ears’ to detect if the door was not operating properly or in a manner that could injure someone.”
The mere fact that Shoprite’s store manager, John Budd, never before saw the daily inspection documents was unavailing. Mackenzie had established that those documents were sent to Shoprite. What Shoprite did with those documents for this particular store (referenced in the contract as “Shoprite 806”), or failed to do. was of no moment to Mackenzie’s position upon the motion.
There was overwhelming proof that Shoprite utterly failed to conduct any safety checks of the doors aside from walking through them on a daily basis, which as Sitter testified, did not constitute a safety check at all.
Mackenzie contended that it was entitled to summary judgment because it did not owe a duty to Wettreich. As a general rule, a limited contractual obligation to provide services does not render the contractor liable in tort for the personal injuries of third parties. Except for three situations where a party who enters into a contract to render services may be said to have assumed a duty of care and thus be potentially liable in tort to third persons where: (1) the contracting party, in failing to exercise reasonable care in the performance of its duties, launches an instrument of harm or created or exacerbated a hazardous condition; (2) the plaintiff detrimentally relied on the continued performance of the contracting party’s duties; and (3) the contracting party had entirely displaced the other party’s duty to maintain the premises safely.
There was no evidence in the record tending to demonstrate that Mackenzie launched a force or instrument of harm, thereby creating a hazardous condition. Mackenzie was at the premises five months earlier, for a service call regarding the bottom track of the door. Likewise, there was no evidence that Wettreich detrimentally relied upon Mackenzie’s continued performance of its contractual obligations or that she even knew that an agreement existed between Mackenzie and Shoprite. Furthermore, the submitted record demonstrated that Mackenzie did not entirely displaced Shoprite’s duty to maintain the premises safely. Instead, the evidence showed that Shoprite entirely abdicated its duty to maintain the premises safely when it came to the doors by failing to conduct the daily safety checks. Thus, none of the three exceptions applied.
Accordingly, Mackenzie established its prima facie entitlement to summary judgment dismissal of the complaint and all cross-claims as a matter of law. In opposition, Shoprite offered no evidence to contradict its failure to perform the daily safety checks. The testimony by the store manager that he never saw the daily safety check documents was unavailing since those documents were not sent to him personally. Shoprite also offered no evidence that raised any question of fact as to whether Mackenzie created a dangerous condition. In fact, Shoprite conceded that the August 2018 service call “had nothing to do with the sensors.” Accordingly, Mackenzie could not have created any condition with respect to the sensors on that date.
Shoprite’s opposition was likewise unavailing with respect to the issues raised by Mackenzie’s motion. There was no evidence that Mackenzie launched an instrument of harm, or that Wettreich even knew of Mackenzie’s contract with Shoprite, or that Mackenzie entirely displaced Shoprite’s duty to maintain safe premises for its customers.
Wettreich’s expert, Thomas Pienciak, submitted an affidavit opining that the Stan-Guard sensor was not functioning properly and “either Shoprite and/or Mackenzie would have realized that…had the doors been inspected and maintained properly.” Although the lion’s share of the affidavit consisted of lengthy quotations of the various witnesses’ deposition testimony, the expert failed to address the alternate theory advanced by Mattson as to why the door closed on Wettreich (which is that she was moving less than four or six inches per second), which was not necessarily germane to Mackenzie’s issues, but indicated that the expert either did not consider all of the available evidence or chose to ignore it, thereby rendering his opinion unpersuasive.
As to the Mackenzie’s duty to inspect the doors, Wettreich’s expert was outside his area of expertise since the duty to inspect was dictated by the terms of the contract between Mackenzie and Shoprite that covered the date of the accident. Interpretation of the service contract was reserved to the Court based upon a plain reading. The terms of the contract provided that. “Mackenzie will perform inspections to adjust, repair or replace worn components on equipment covered under this agreement on each service call, and will perform special service call inspections when no service has been required for a period of six months.” Accordingly, when measured either from the date that Mackenzie was last at Shoprite on August 7, 2018. or from the effective date of the contract, which was August 16, 2018. Mackenzie had no duty to inspect the doors, sua sponte, until February 2019, unless Shoprite contacted Mackenzie prior to that time requesting a service call, which Shoprite did not do. Thus, Pienciak’s statement that Mackenzie had a duty to inspect the doors by January 7, 2019 was a miscalculation, it being only five months after August 7, 2018, not to mention that it was the effective date of the contract that controlled the periodic inspections, not a date prior to the commencement of that contract.
The terms of the service contract placed responsibility upon Shoprite to inspect the automatic door equipment daily and document the check, which duty was found in paragraph 4 entitled “Owner Responsibility,” and which was underlined in its entirety. The Daily Safety Check documents setting forth the steps to be followed by Shoprite were designated as being “For Your Customers’ Safety and Your Own Protection.” Thus, the terms of the service contract were eminently clear that it was Shoprite’s duty to inspect the doors on a daily basis and if a problem were detected by an actual inspection, rather than merely walking through the doors, then Shoprite was to contact Mackenzie for a service call, thereby triggering Mackenzie’s duty to respond to the premises. Outside of the six-month inspections, Mackenzie could not know if Shoprite was experiencing an issue with the doors unless Shoprite notified Mackenzie. The duty spelled out in the service contract thereby rendered Wettreich’s expert’s opinion that Mackenzie failed to properly inspect the doors unpersuasive and insufficient to raise a triable issue of fact as to Mackenzie’s motion.
Pienciak did not opine as to when he believed the Stan-Guard sensor malfunctioned, which theoretically would have resulted in a call from Shoprite to Mackenzie, thereby triggering Mackenzie’s duty to respond to the premises and address the problem.
Wettreich’s additionally claimed that Mackenzie failed to meet its burden of proof as to actual and/or constructive notice regarding the door and its safety sensors because the Mackenzie technician who serviced the bottom track of the door on August 7, 2018 did not specifically note on the service record that the Stan-Guard was tested. But that claim was inapposite since the reason that the technician was there had nothing to do with the sensors, and because the only duties that Mackenzie had with respect to the doors was governed by the contract whose term ran from August 16, 2018 to August 15, 2019.
The submissions opposing Mackenzie’s summary judgment motion e failed to raise a triable issue of fact. Mackenzie’s motion was granted. And the complaint and all cross-claims were dismissed as to Mackenzie.
Wetrtreich did not oppose the motion for summary judgment dismissal of her claims against Stanley. Only Shoprite opposed that motion.
The claims against Stanley sounded in common law negligence, without any causes of action sounding in products liability. The submitted evidence, including the deposition testimony of David Sitter established, without contradiction, that Stanley Security Solutions provided security system for doors but had nothing to do with the design or installation of the doors. Accordingly, Wettreich’s claims and all cross-claims were dismissed as against SSS.
According to Sitter, Stanley Access Technologies designed the doors and did not manufacture the sensors, but purchased them from their original manufacturers and then included those sensors with the doors that it sold to Melito as per the specifications requested by Mackenzie. Mackenzie then installed the doors and sensors in 2010 at the Shoprite store where the accident took place in 2019. There was no evidence that SAT entered into any contract with any entity involved in the matter, other than the sale to Melito, requiring SAT to service, inspect, or maintain the doors. Essentially, SAT had no involvement with the doors for nine years before Wettreich’s accident aside from the one-year warranty regarding operation of the door. And the service agreement concerning the doors was executed between Shoprite and Mackenzie.
Generally, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property. Before a defendant may be held liable for negligence, it must be shown that the defendant owed a duty to plaintiff. Whether a defendant owed a duty to a plaintiff was a question of law to be determined by the Court. Here, since there was no service contract or contract of any kind obligating SAT to maintain the doors, there was no duty of care owed either to Wettreich or to any other party, including Shoprite. Accordingly, SAT stablished its prima facie entitlement to summary judgment as a matter of law.
In opposition, Shoprite’s response to SAT’s statement of material facts affirmed all of the statements made therein to be true and accurate, including that the doors were manufactured by SAT and sold to Melito; Mackenzie installed the doors on October 10, 2010; neither SSS nor SAT installed the doors or performed any inspection, maintenance, repair or any other service on the doors; the door package provided by SAT included presence and motion sensors; none of the sensors were designed or manufactured by SSS or by SAT; and that all sensors were installed and tuned by Mackenzie.
Shoprite’s claim in opposition that there were no end user serviceable parts that Shoprite could adjust was spurious. —because, as established without controversy, Shoprite was not required to adjust or service any parts at all; rather, they were required to inspect the doors and determine if there was a problem, and if a problem was detected, Shoprite was to call Mackenzie to make any necessary adjustments.
Shoprite’s attempt to relieve itself of liability by claiming that a material issue of fact existed with respect to the allegations set forth in the motion filed by Stanley—that if a defective condition existed, it was solely within the design, manufacture and implementation of sensors that were provided by Stanley– was inapposite because there were no product liability claims asserted by Wettreich.
The remainder of Shoprite’s opposition– that the contract between it and Mackenzie controlled the duty of inspection and service of the doors missed the mark because that had absolutely nothing to do with either SAT or SSS. Furthermore, Shoprite’s continued argument that it was not aware of the instructions pertaining to the daily safety checks was belied by the service contract–and again, had nothing to do with SAT or SSS. Whether or not the previously-dismissed Melito could recall receiving materials from Stanley to pass on to Shoprite nine years before Wettreich’s accident was irrelevant in light of the relevant service contract between Shoprite and Mackenzie.
Shoprite failed to raise a triable issue of fact sufficient to defeat Stanley’s summary judgment motion. Accordingly, Stanley’s motion was granted and all claims and cross-claims alleged against SSS and SAT were dismissed.