This was originally published on the SGR Blog.
Was Operator Liable for “Excessive Swivel” Injury?
Jeanine Monticello brought an action for injuries sustained on May 22, 2018, from an alleged trip and fall on a swivel chair on the main floor of the casino owned by Monticello Raceway Management, Inc. located at Route 17B, Monticello. Jeanine died on July 16, 2019, and her husband, Charles Cimorelli, Jr., was appointed administrator of her estate. The estate sued Monticello and alleged that the swivel chairs were not properly secured to the floor and that the chair had “excess swivel.” Monticello moved for summary judgment in that the alleged defective condition was open and obvious and not inherently dangerous.
A New York landowner owes people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition. However, in order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence.
There is no duty to protect or warn against an open and obvious condition which, as a matter of law, was not inherently dangerous. While the issue of whether a hazard is latent or open and obvious is generally fact-specific, and thus usually a jury question, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclusion, and may do so on the basis of clear and undisputed evidence. Whether a dangerous or defective condition existed on the property of another so as to create liability depends on the peculiar facts and circumstances of each case.
Monticello argued that Jeanine had been to the casino once to twice per month for over ten years prior to the incident, had used the chair involved on many occasions, and both Jeanine and Charles testified that the accident occurred near her favorite machine and chair. In addition, Monticello argued that Jeanine failed to reasonably utilize use her senses, which was the direct and proximate cause of her fall. Monticello attached surveillance footage and photographs pertaining to the incident.
Monticello also provided an affidavit of David A. Guido, P.E., CSP, a licensed professional engineer in which he stated that:
“There are no known applicable codes or mandatory standards requiring the Casino to bolt down the swivel chair or to place warnings in the area of the swivel chairs. Further, there is no known applicable code or mandatory standard that limited the amount of swivel in a chair at a casino. Further, the deposition testimony establishes that the slot machines at the Casino were accessible to handicapped individuals as the record reveals that upon request any handicapped individual who wished to use the machines could easily have a staff member remove the chair.”
The estate averred that Monticello had actual notice and constructive notice of the swivel stool that caused her to fall, and had adequate opportunity to remedy the condition. The estate further claimed that it was not open and obvious that the stools were not affixed to the ground and argued that, on the date of the accident and on prior occasions, Jeanine had searched for handicap accessible gaming machines. However, the Casino had no designated handicap accessible machines available.
The estate submitted a report by Stanley H. Fein, P.E. who stated that: “The chairs were not bolted to the floor…The chair had a swivel of 180 degrees to 200 degrees. This was far in excess of the safe amount of swivel.”
Scott Gavin, former security supervisor for the Casino, was deposed and stated that “[p]eople have fallen out of those chairs. We’ve had people just completely miss the chairs, you know. They’ve fallen getting into them…” He later indicated that “I’ve seen people lose their balance, attempt to use the chair to avoid falling over and because the chair swivels they went down.”
The Court found that Jeanine was aware of the swivel chair, and that she could reasonably have been anticipated that she would fall as a result of her actions, relieving the Casino of any liability. In this regard, Jeanine testified that:
A: “I came in. I went over to where I usually play. I call it my favorite machine. I went over and that’s where I played. It was the machine next to the end of the row and I usually play there because I do pretty good.”
Q: “Did you make it to that machine without falling or did you fall?”
A: “Yes, I did. I fell when I got to the machine.”
Q: “What caused you to fall?”
A: “Well, I just went to take a hold of the chair to brace me so I could get in and the chair flew and I flew with the chair.”
Jeanine testified she would have used a handicap accessible machine had they been available at the Casino, but referred to the machine as her favorite. She later indicated that the cause of her fall was the swiveling of the stool that she grabbed. Tyrone Sanders, former security guard for the Casino, who had filled out the Incident Report, wrote that Jeanine said “she tripped and fell from one of the chairs.”
Charles testified that Jeanine mentioned that the man sitting next to her told her to be careful, that “these chairs swivel.” In reviewing the videotape of the incident, he further testified that it looked as if his wife put her purse onto one of the swivel chairs, then put her hand on the back of the chair and then fell. However, he also testified that he and his wife went to the Casino once a month for the ten years prior to this incident and that about a year before the accident the couple went to the Casino twice a month. He explained that Jeanine would play the slot machines and they would stay five hours. He stated she also had a favorite chair which happened to be the same chair involved in the incident.
The Court noted that there was no duty to protect or warn against an open and obvious condition which, as a matter of law, was not inherently dangerous. The Court found, based on the facts of the case, that there was no duty to inform or warn Jeanine of the open and obvious condition of a swivel chair not bolted to the ground that she herself has used for over a decade without incident to her. A swivel chair in itself was not inherently dangerous. She was well aware of what chairs the Casino had and the foreseeable risk of falling, when she leaned against the swivel chair. The evidence was clear and undisputed.
The Casino’s motion for summary judgment dismissing the complaint was granted.