This was originally published on the SGR Blog.
Was Resulting Injury Caused by Tavern’s Negligence?
Reisa Forster suffered injuries when the door of the bar and grill known as Flatiron Hall, owned by 38 W. 26th St. Restaurant Corp., allegedly slammed on her right ring finger. The bill of particulars alleged that Flatiron failed to maintain the door, which was heavy, causing it to slam back on Forster’s hand.
Flatiron Hall moved for summary judgment dismissing the complaint, arguing that the door was not defective. Further arguing that there was no notice of any alleged defective condition and that Forster’s conduct was the sole proximate cause of her injuries. In support of the motion, Flatiron Hall submitted copies of the pleadings, transcripts of the parties’ deposition testimony, an affidavit of Brian Golding, manager of Flatiron Hall, and an expert affidavit of Steven McEvoy, an engineer.
Forster opposed the motion, arguing that triable issues of fact existed as to whether Flatiron Hall maintained the bar and grill in a safe condition and breached the duty to take adequate crowd control measures. Forster argued that negligence could be inferred under a theory of res ipsa loquitur. And submitted her own affidavit and deposition testimony and an expert affidavit of Robert Fuchs, an engineer.
At her examination before trial, Forster testified that she met up with some friends on St. Patrick’s Day and went to Flatiron Hall. She had been there twice in the past, several years prior to the accident, but did not have to open the door. She testified that someone who was exiting Flatiron Hall “threw the door open,” and she went to grab the door to hold it open. Forster explained that she grabbed the side of the door and that it “slammed closed faster than [she] could blink.” She testified that the door was made of metal, and three to four inches thick. And that the tip of her right index finger was severed when the door slammed on it.
Forster stated in her affidavit that the door opens out and is made of metal or heavy material. There were a lot of people entering and exiting the building at the time of the accident. And the bouncer was inside the building and not monitoring the people entering and leaving the premises.
Golding stated in his affidavit that he was the manager at Flatiron Hall at the time of the accident and that neither he nor his staff was notified of the accident. He stated that the front entrance door was comprised of metal and glass with hinges on the top and bottom, which kept the door from closing quickly; the door opened and closed “evenly” and “slowly”; and that there was no “wind tunneling” effect. The door had never been altered since the business opened in 2014; there never had been complaints that it closed abruptly; and no one had been injured by the door prior to the accident. Golding’s testimony was the same as his affidavit.
Steven McEvoy, a licensed professional engineer, conducted an inspection of the front door to Flatiron Hall. He stated that the door was outward opening and was a “steel entrance door measuring 3′-6″ wide by 8’0″ high,” approximately 250 pounds; there was a high double-glazed glass panel in the upper half of the door; the door was hinged to the steel framed door jamb; and the door jamb had an integrated steel door stop on each of the two vertical sides and along the horizontal top jamb. According to McEvoy, the hinges were self-closing and the motion restricting hardware was in good working order. He conducted several opening and closing combinations to create a vacuum effect on the front entrance door operation, but that there was no change in the function of the door. McEvoy concluded, with a reasonable degree of engineering certainty, that the door closing mechanism functioned properly and did not violate any applicable building code requirements.
On behalf of Forster, Robert Fuchs, a licensed professional engineer, who was unable to independently inspect the door, based his opinions after a review of the McEvoy affidavit, testimony of the parties and photographs of the door. Fuchs stated that the self-closing hinges on the door did not provide sufficient resistance when closing, and, as a result, the doors were prone to slamming shut. He stated that the American National Standard for Self Closing Hinges & Pivot prescribed a maximum test door weight of 160 pounds for single acting spring hinges, and the bar door was 250 pounds, exceeding the maximum conventional spring hinge size prescribed by that standard. Fuchs asserted that the affidavit of Flatiron Hall’s’ expert did not indicate whether a commercial kitchen ventilation system was operating at the time of the inspection. He explained that such ventilation systems could place the interior of the restaurant space under negative pressure, creating a vacuum effect that caused exterior doors to slam shut after being opened. Flatiron Hall’s expert did not include any measurements of the door closing speed or closing force and did not cite relevant and applicable industry standards. Fuchs concluded that the reported circumstances of the accident were consistent with the presence of an unsafe door that closed with excessive speed and force.
With regard to Flatiron Hall’s motion for summary judgment: the bar established prima facie entitlement to summary judgment as a matter of law that the door was not defective. Golding, the manager of Flatiron Hall, stated in his affidavit and testimony that the door closed “evenly” and “slowly,” and that there were no complaints or incidents relating to the door closing abruptly prior to the accident. And Flatiron Hall’s expert stated in his affidavit that the door closing mechanism functioned properly and did not violate any applicable building code requirements. As such, Flatiron Hall established, prima facie, that the door was not defective, and that, if a defect existed, there was no actual or constructive notice of the defect.
In opposition, Forster failed to raise a triable issue of fact. It could not be inferred that the door was defective or improperly maintained merely because it could close fast enough, or hard enough, to cause injuries to Forster. And her contention that the doctrine of res ipsa loquitur applied in this case was rejected. Res ipsa loquitur allowed for an inference of negligence to be drawn regarding a defendant’s actions based upon the happening of an event where the plaintiff can establish that the event was of a type which would not ordinarily happen in the absence of someone’s negligence; was caused by an agent or instrumentality exclusively within the defendant’s control; and was not due to any voluntary action or contribution on the plaintiff’s behalf. Here, it could not be said that, under the circumstances, the door slamming was an event that would not ordinarily happen in the absence of someone’s negligence.
Forster also contended that Flatiron Hall was negligent in controlling the crowd, causing her to have no option but to grab the side of the partially opened door, which slammed on her finger. But Forster never alleged that the bar was negligent in controlling the crowd in the pleadings and, thus, such an argument could not be considered. In any event, the evidence did not support the contention that the entrance was so crowded at the time of the accident as to place an “undue restriction” upon Forster’s freedom of movement. Forster testified in her deposition and stated in her affidavit that there were a lot of people entering and exiting the building at the time of the accident. But there was no evidence that such conditions were a proximate cause of the accident. Furthermore, the affidavit of her expert, who never inspected the door, failed to raise a triable issue of fact.
Flatiron Hall’s motion for summary judgment dismissing Forster’s complaint was granted.