Opinion
No. 113072/08.
2012-02-10
Adrian BAILEY, Plaintiffs, v. DISNEY WORLDWIDE SHARED SERVICES, George Tsypin, Showman Fabricators, Inc., and Niscon, Inc., Defendants.
Alan Shapey, Esq., Lipsig, Shapey, Manus & Moverman, P.C., Attorneys for Plaintiff. Steven M. Richman, Esq., Jonathan L. Swichar, Esq., Duane Morris LLP, Attorneys for defendant Niscon, Inc.
Alan Shapey, Esq., Lipsig, Shapey, Manus & Moverman, P.C., Attorneys for Plaintiff. Steven M. Richman, Esq., Jonathan L. Swichar, Esq., Duane Morris LLP, Attorneys for defendant Niscon, Inc.
Paul Carpenter, Esq., Murphy & Higgins, Attorneys for Defendant/Third Party Plaintiff Showman Fabricators.
Virginia Goodman Futterman, Esq., London Fischer LLP, Attorneys for Third Party Defendant Buena Vista and Disney entities.
ANIL C. SINGH, J.
In a case involving an actor who fell through a trap-door that was left open prior to a performance of a play, defendant/third-party plaintiff/second third-party plaintiff Showman Fabricators, Inc. (Showman) moves, pursuant to CPLR 3212, for summary judgment dismissing all claims, cross claims, and counterclaims as against it (motion seq. no. 006). In motion seq. no. 007, defendant/second third-party defendants Lunt Theatre Company (Lunt) and Lunt Nederlander Corporation (Lunt Nederlander), defendant/third-party defendant Nederlander Producing Company of America, Inc., (Nederlander) and second third-party defendant Stalhunt Associates LLC (Stahlunt) (collectively, the Nederlander entities) jointly move for summary judgment dismissing all claims and cross claims as against them. In motion seq. no. 008, defendant Niscon, Inc. (Niscon), moves for summary judgment dismissing all claims and cross claims as against it. Finally, defendants Disney Worldwide Shared Services (Disney) and George Tsypin (Tsypin) move for summary judgment dismissing all claims and cross claims as against them (motion seq. no. 009).
BACKGROUND
On May 20, 2008, plaintiff, Adrian Bailey, an actor performing in The Little Mermaid, a Broadway musical, walked out onto a bridge suspended 35–feet over the stage in order to get ready for his role in a matinee performance of the play. Trap doors on the bridge, known as the “Eric trap,” after a character in the play who descends through the trap doors, had been left open after a pre-show test. Plaintiff fell through the open trap doors and suffered serious injuries. A backstage automation operator controlled the trap doors. The automation operator failed to look at the display monitors showing that the trap doors had not been closed after the pre-show check, as he was playing a video game on his personal computer instead of checking the monitors (Deposition of Michael Shepp, at 118, 308–309).
Showman, pursuant to a purchasing agreement with Disney, built the bridge along with its trap doors. Niscon, which did not have a direct contractual relationship with Disney, provided the automation system, known as Raynok, that allowed the trap doors on the bridge to be remotely operated. Disney then sold the bridge to Buena Vista Theatrical Group, LTD (Buena Vista), another Disney entity which produced the Little Mermaid; Buena Vista was the employer of both plaintiff and the automation operator who failed to check his monitor. The Nederlander entities leased the theater used in The Little Mermaid and provided some union labor to the production, including a stage hand who was supposed to check the bridge before allowing actors on to it.
Plaintiff's allegations in the amended complaint and bill of particulars are made generally against all defendants. Plaintiff alleges that defendants are liable in negligence (first cause of action), as well as for breach of the warranties of fitness for a particular use (the second cause of action) and merchantability (the third cause of action); finally, plaintiff alleges that defendants are liable under a theory of strict products liability (fourth cause of action).
DISCUSSION
“Summary judgment must be granted if the proponent makes a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact,' and the opponent fails to rebut that showing” (Brandy B. v. Eden Cent. School Dist., 15 NY3d 297, 302 [2010], quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ).
I. Showman
Showman is not entitled to summary judgment dismissing all claims and cross claims as against it.
A. Strict Product Liability
“Manufacturers of defective products may be held strictly liable for injury caused by their products—meaning that they may be liable regardless of privity, foreseeability or reasonable care” (Sprung v. MTR Ravensburg, 99 N.Y.2d 468, 472 [2003] ). A claim of strict products liability can assert either a design defect, a manufacturing defect, or a failure to provide adequate warning (Doomes v. Best Tr. Corp., 17 NY3d 594, 608 [2011] ). Plaintiff alleges that Showman is liable under defective design and failure to warn theories.
Initially, Showman argues that it cannot be strictly liable, as it did not place the bridge into the stream of commerce. Showman, however, cannot escape liability simply because it custom fabricated the bridge for Disney. In Sprung v. MTR Ravensburg (99 N.Y.2d 468,supra ) the Court of Appeals rejected the argument that a defendant-fabricator should be exempt from strict products liability because it only engaged in a one-time fabrication of a retractable floor that later collapsed; the Court reasoned:
“when a custom fabricator builds a product to suit a customer's specific needs, there may well be less informational disparity between the producer and the user than in the mass production setting. Such disparity is, however, only one of the several policy reasons underpinning strict liability. Like other manufacturers, custom fabricators engaged in the regular course of their business hold themselves out as having expertise in manufacturing their custom products, have the opportunity and incentive to ensure safety in the process of making those products, and are better able to shoulder the costs of injuries caused by defective products than injured consumers or users”
(99 N.Y.2d at 474).
Therefore, Showman cannot escape liability by claiming to have custom made the trap door.
1. Design Defects
Generally, a defendant moving for summary judgment in a defective design case “must demonstrate that its product is reasonably safe for its intended use; that is, the utility of the product outweighs its inherent danger” (Yun Tung Chow v. Reckitt & Colman, Inc., 17 NY3d 29, 31 [2011] ).
However, when a product is made in accordance with plans and specifications provided by the purchaser, the manufacturer is not liable for design defects, “unless the specifications are so patently defective that a manufacturer of ordinary prudence would be placed on notice that the product is dangerous and likely to cause injury” ( Houlihan v. Morrison Knudsen Corp., 2 AD3d 493, 494 [2d Dept 2003] ).
At trial, this burden falls on the plaintiff, who must then show “that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner” (Doomes v. Best Tr. Corp., 17 NY3d 594, 608,supra [internal quotation marks and citation omitted] ).
This exemption from liability for adherence to specifications does not apply where the manufacturer is involved in the design and installation of the allegedly defective product ( see e.g. Sprung, 99 N.Y.2d at 475).
This defense, referred to by Showman as the “buyer's specification doctrine,” is similar, but distinct from “component part manufacturer doctrine” ( see Sexton v. Cincinnati Inc., 16 AD3d 1090, 1091 [4th Dept 2005] ) with which plaintiff conflates it, and which is inapplicable here.
Showman argues that it made the bridge in accordance with plans and specifications provided by Disney, and submits copies of scenery bid specifications, as well as the automation specifications.
In opposition, plaintiff submits numerous e-mails between Showman and Niscon employees which raise a question of fact as to whether Showman collaborated with the Disney entities, and Niscon, in order to design and install the bridge's trap door and automation features. For example, plaintiff submits a March 12, 2007 e-mail from Grigor Grigorov (Grigorov), Showman's assistant head of automation, to Niscon's Don Allen (Allen). The message, which is carbon copied to Ed Fisher, Showman's head of automation, describes in considerable detail the design of the trap door, as well as ways of integrating that design with Niscon's Raynok software system.
Plaintiff also submits, among other things, the deposition testimony of Grigorov, who discussed Showman's involvement:
Q: What involvement did [Showman] have in the bridge and the Eric trap?
A: We developed the fabrication of the bridge, the bridge's scenic structure as well as the machines to fly the bridge in and out, and then to open and close the Eric trap doors at the center of the bridge and the light and trap doors at the end of the bridge.
Q: Did [Showman] build the motors and controls that moved the bridge?
A: Yes.
Q: Did [Showman] select the motors and controls that open and close the Eric traps?
A: Yes.
Q: Did [Showman] select the actuators that were involved in opening and closing the Eric traps?
A: Yes.
Q: Did [Showman] select the linkage that was used in the opening and closing of the Eric traps?
A: Yes.
Q: Did [Showman] select the light curtain selected to be used in the Eric traps?
A: Yes.
(Grigorov Deposition, at 46–47).
Grigorov also testified that he helped support installation of the bridge in Denver, where the play opened before moving to New York ( id. at 36). These submissions raise a question of fact as to whether Showman was involved in the design and installation of the allegedly defective bridge/trap door.
Showman also claims that the bridge and trap door were not defective, but that plaintiff's accident was instead caused by the negligence of Buena Vista employees. In support, Showman submits expert affidavits from David Campbell (Campbell), Jeremiah Harris (Harris), and Stephen Wolf (Wolf). Campbell is a professional engineer with experience in the theater industry, while Harris is a technical supervisor/technical director for theatrical productions, and Wolf is a stunt and special effects coordinator. All three conclude that no conduct by Showman contributed to plaintiff's accident, which, in Wolf's words, was instead caused by Buena Vista's failure “to follow their own safety procedures for use of the scenic ship's bridge and trap” (Wolf, ¶ 28). Additionally, Campbell, Harris, and Wolf rebut the opinions expressed in plaintiff's expert disclosures.
Plaintiff submits expert affidavits from Eric Heiberg (Heiberg), a mechanical engineer, and Linda Volonino (Volonino), a computer forensics investigator. Heiberg opines that “Showman should have included a gate or movable railing system that moved into place and prevented access to the floor opening that was present when the trap door was open” (Heiberg Affidavit, ¶ 28).
Additionally, Heiberg opines that Showman failed to design an adequate means of alerting actors that the trap door was open, and that such was a design defect, as “[w]arning lights could have been provided that would have alerted the actors [ ] when the trap door was open” ( id., ¶¶ 32–33). Heiberg also opines that the bridge's design violated applicable Occupational Safety and Health Administration (OSHA) regulations, as well as applicable American National Standards Institute (ANSI) standards ( id., ¶¶ 37–49).
Heiberg's affidavit provides neither numbered paragraphs, nor numbered pages.
Volonino, on the other hand, opines on the way that Niscon's automation software, Raynok, was applied to operate the bridge and its trap doors. She concludes that the Raynok software should have been applied in a way that would have prevented the automation operator, Michael Shepp (Shepp), from accidentally leaving the Eric trap open:
“Showman and Niscon, as the companies that were substantially involved in the design, development, programming and integration of the automation control system with the Bridge, Eric trap doors, and other scenic elements, should have installed and/or recommended the use of appropriate constraints, auto-follows, and appropriate visual warnings that were visually striking and clearly discernable. Their failure to do so created a hazard and an unreasonably dangerous condition which was a substantial cause of this occurrence”
(Volonino Affidavit, at 11).
Plaintiff also argues that the court should disregard Showman's expert affidavits, as Showman did not provide expert notice pursuant to CPLR 3101(d). However, the court need not reach this argument, as plaintiff's submissions clearly raise an issue of fact as to whether Showman is liable for a defect in the bridge's design, and, thus, Showman's motion for summary judgment dismissing plaintiff's complaint must be denied regardless of whether the court considers Showman's expert affidavits ( see Mauro v. Rosedale Enters., 60 AD3d 401, 401–402 [1st Dept 2009] ).
2. Warning Defects
A plaintiff may recover under strict products liability where the product is defective because the manufacturer failed to provide adequate warnings about the risks and dangers associated with the use, or foreseeable misuse, of its product (Liriano v. Hobart Corp ., 92 N.Y.2d 232, 238 [1998] ). “[I]n cases where reasonable minds might disagree as to the extent of plaintiff's knowledge of the hazard, the question is one for the jury” (Passante v. Agway Consumer Prods., Inc., 12 NY3d 372, 382 [2009] [internal quotation marks and citation omitted] ). On the other hand, “there is no necessity to warn a customer already aware—through common knowledge or learning—of a specific hazard and, in the proper case, the court can decide as a matter of law that there is no duty to warn or that the duty has been discharged” (Travelers Ins. Co. v. Federal Pac. Elec. Co., 211 A.D.2d 40, 43 [1st Dept 1995] [internal quotation marks and citation omitted] ).Showman argues that the “knowledgeable user” doctrine exempts it from liability for a defective warning. This doctrine holds that
“where the injured party was fully aware of the hazard through general knowledge, observation or common sense, or participated in the removal of the safety device whose purpose is obvious, lack of a warning about that danger may well obviate the failure to warn as a legal cause of an injury resulting from that danger”
(Liriano, 92 N.Y.2d at 241).
Specifically, Showman argues that Buena Vista was a knowledgeable user with extensive theatrical experience in the use of trapdoors in live theater. However, the focus of defective-warning analysis is on the foreseeable user, rather than the buyer ( see e.g., Passante v. Agway Consumer Prods., Inc. 12 NY3d 372, 382,supra ). For example, in the case that Showman relies on, Travelers Ins. Co. v. Federal Pac. Elec. Co. (211 A.D.2d 40,supra ), the Court held that employees involved in the accident, who were operating a wet circuit breaker, “were the epitome of knowledgeable users' of circuit breakers in a wet condition” ( id. at 43). Here, while Showman argues that Buena Vista was a knowledgeable user, it makes no argument as to whether plaintiff was fully aware of the hazard that the trap door may be accidentally left open. Thus, Showman fails to make a prima facie showing entitling it to summary judgment dismissing plaintiff's claim for strict products liability for failure to warn.
As plaintiff raises an issue of fact as to whether Showman is liable for a design defect in the Eric bridge, and as Showman fails to make a prima facie showing as to the existence of a warning defect, the branch of Showman's motion that seeks dismissal of plaintiff's fourth cause of action, for strict product liability, as against it, is denied.
B. Breach of Implied Warranties
Showman contends that plaintiff's claims for breach of implied warranties of merchantability and fitness for a particular purpose should be dismissed, as the bridge was made to Buena Vista's specifications. However, as discussed above, plaintiff raises a question of fact as to Showman's involvement in the design of the bridge, as well as whether that design was defective. Thus, Showman is not entitled to dismissal of plaintiff's claims for breach of implied warranties.
Causes of action for breach of implied warranties bear a strong resemblance to those for strict products liability. The Court of Appeals has noted that “strict liability in tort and implied warranty in the absence of privity are merely different ways of describing the very same cause of action,” and that “although the available defenses and applicable limitations principles may differ, there is a high degree of overlap between the substantive aspects of the two causes of action” (Denny v. Ford Motor Co., 87 N.Y.2d 248, 256 [1995] [internal quotation marks and citations omitted] ).
“The implied warranty of merchantability is a guarantee by the seller that its goods are fit for the intended purpose for which they are used and that they will pass in the trade without objection” (Wojcik v. Empire Forklift, Inc., 14 AD3d 63, 66 [3rd Dept 2004] [internal quotation marks and citation omitted] ). Under this cause of action, “a plaintiff must show that the product was not reasonably fit for [its] intended purpose” ( id. [internal quotation marks and citation omitted]; see UCC § 2–314[2][c] ). This inquiry “focuses on the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners” (Denny v. Ford Motor Co., 87 N.Y.2d 248, 258–259,supra ).
UCC § 2–315, entitled Implied Warranty: Fitness for Particular Purpose, provides that
[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.
A plaintiff makes out a prima facie case for breach of implied warranty of merchantability, as well as for breach of implied warranty of fitness for particular purpose, by raising questions as to the product's design defects (Bimini Boat Sales, Inc. v. Luhrs Corp., 69 AD3d 782, 783 [2d Dept 2010] ). Here, as discussed above, plaintiff raises a question of fact as to whether the bridge was defectively designed. As such, the branch of Showman's motion that seeks dismissal of plaintiff's second and third causes of action, for breach of the implied warranties of merchantability and fitness for a particular purpose, are denied.
C. Negligence
“In order to establish negligence, a plaintiff is required to prove the existence of a duty, that is, a standard of reasonable conduct in relation to the risk of reasonably foreseeable harm; a breach of that duty and that such breach was a substantial cause of the resulting injury” (Baptiste v. New York City Tr. Auth., 28 AD3d 385, 386 [1st Dept 2006] [internal citation omitted] ). As with implied warranties, there is substantial overlap between plaintiff's negligence and strict products liability claims; all three causes of action require a showing that a product defect was a substantial factor in causing plaintiff's injury (Fritz v. White Consol. Indus ., 306 A.D.2d 896, 898 [4th Dept 2003] ).
Showman argues that, as a matter of law, it had no duty to plaintiff, and that it did not proximately cause plaintiff's injury. As to duty, “[t]he existence and scope of an alleged tortfeasor's duty is a legal question to be determined by the court in the first instance,” and, “[i]n making such a determination, courts look to whether the relationship of the parties is such as to give rise to a duty of care, whether the plaintiff was within the zone of foreseeable harm, and whether the accident was reasonably foreseeable” (Lynfatt v. Escobar, 71 AD3d 743, 744 [2d Dept 2010] ). Here, Showman did have a duty to plaintiff, inasmuch as it was foreseeable that any defects in the bridge and its trap doors may cause serious injuries to the actors who used the bridge during rehearsals and performances of the Little Mermaid.
As to proximate causation, as with the strict products liability and implied warranty claims, plaintiff's expert affidavits raise questions of fact as to whether Showman defectively designed the bridge and whether such was a proximate cause of plaintiff's accident. Accordingly, the branch of Showman's motion that seeks dismissal of plaintiff's first cause of action for negligence is denied.
II. Niscon
Niscon is entitled to summary judgment dismissing all claims and cross claims as against it.
A. Strict Product Liability
1. Design Defects
Niscon argues, among other things, that it cannot be held strictly liable because its Raynok automation software was not defective. Niscon notes that plaintiff's expert, Heiberg, stated in his affidavit that Michael Shepp, the automation operator, a Buena Vista employee, after cuing the trap door to open in the pre-show test, “failed to actuate the cue: Eric trap door close” (Heiberg Affidavit, at 5). Thus, Niscon argues, the failure of the trap door to close was not caused by a failure of the automation software.
Niscon submits expert affidavits from John Gray (Gray), a professional stage manager, and Richard Hooper (Hooper), an automation engineer, with experience designing automation and motion control software. Gray concludes that the accident was caused by human error:
“The undisputed and immediate cause of the accident, as admitted by the relevant Buena Vista personnel, was the bridge trap doors were left open in the pre-show check due to human error, i.e., the inattentiveness of the automation operator Shepp and the head carpenter Eviston, and the failure of Buena Vista to follow its own safety procedures. Neither the deck automation log for the pre-show check, the performance succeeding the pre-show check, nor the immediately preceding or succeeding performances of the matinee showed any electro-magnetical defect in the operation of the trap doors on the day in question. The Niscon Raynok system functioned appropriately and I would have expected to find reference to any other physical cause—particularly electro-magnetical—if any other such cause existed. Certainly, if there were any suspicion of any potential electro-mechanical, as opposed to human, failure, I would not have expected the performance to continue after the accident without a thorough investigation, which was not done in this case as Buena Vista's safety director confirmed. Buena Vista was confident the cause of the accident was human error and went ahead with the matinee performance with only an hour's delay and no scenery inspection ...”
(Gray Affidavit, ¶ 14–15).
Similarly, Hooper, after reviewing the record, “found no evidence that Niscon's Raynok system malfunctioned at the time of the accident” (Hooper Affidavit, ¶ 36). Further, he described the general nature of the Raynok system and stated that it could have accommodated all of the changes called for by plaintiff's expert Volonino:
“The basic Raynok system consists of a control console that is operated by a person, the automation operator. The program the computer in the Raynok system follows is called a “show file.” Based on commands from the operator and the inputs from the physical system, the Raynok system produces outputs by following a series of cues that have been programmed into the show file. The number of inputs and outputs supported by a Raynok system can range from just a few, to hundreds, or even thousands, depending on the system's configuration.
The Raynok system also supports more advanced functionality such as “autofollow” cues that automatically follow another cue after a set length of time and “constraints” or “interlocks” that can prevent a cue from being executed based on a specified state of the system. In other words, the Raynok system accommodated the user (here, Buena Vista) if the user wanted to cue several operations to proceed automatically (without manual entry), one after the other. It also accommodated time delay, where a cue could be entered but the scenic element would not move for a set period of time after the cue was executed. However, these types of delays and automatic movements are not recommended in the abstract. Particularly for a theatrical production with actors intermingling with a variety of scenic elements, such cued operations could hurt an actor who happened to be at the wrong place at the wrong time. For example, if an open trap door were programmed to close automatically after being open for 2 minutes, it might shut on an actor that had not cleared the door because some other part of the performance had delayed their passage through the space. To the extent that Plaintiff recommends such auto-follows and interlock systems, it must be recognized that it was Buena Vista's choice whether or not to program the system in such a manner. If Buena Vista had so chosen, the Raynok system provided the wherewithal to implement this functionality”
( id. at ¶¶ 13–14).
Plaintiff argues that the court should disregard Gray and Hooper's affidavits for two reasons: 1) they are defective under CPRL 2309(c), as the affidavits were signed outside of New York and lack certificates of conformity with the law of the jurisdiction in which the affidavits were signed; and 2) Niscon failed to provide disclosure of these experts pursuant to CPLR 3101(d). Niscon cures the first defect by submitting certificates of conformity with their reply papers. As to the second, Niscon contends that Judge Sherwood, when this case was before him, informed the parties via teleconference that there was no need to set a date for expert disclosures, as expert affidavits submitted with dispositive motions would serve as such disclosure. In this circumstance, the court exercises the discretion expressly provided for by CPLR 3101(d) to consider Niscon's expert affidavits.
In order to raise an issue of fact as to whether the Raynok automation software was defective, plaintiff submits Volonino's affidavit, in which Volonino, as a computer forensics investigator, states that Showman and Niscon should have installed, or recommended, “the use of appropriate constraints, auto-follows, and appropriate visual warnings that were visually striking and clearly discernable” (Volonino Affidavit, at 11). As Volonino acknowledges, Niscon's automation system “had the capability to address the open trap door hazard,” as it “enabled auto-follow cues, constraints, interlocks, and custom programming” (Volonino Disclosure Affidavit, at 7).
While plaintiff may raise a question of fact as to whether Niscon collaborated with Showman in integrating its automation system with the bridge and its trap doors, Niscon's submissions show that Buena Vista had control over the show file, and that it decided how to use the software in order meet its needs for the Little Mermaid. Niscon submits the deposition testimony of Shepp, Buena Vista's automation operator, who was asked about the pre-show portion of the show file that governed the opening and closing of the trap doors prior to the show:
Q: When was the pre-set or pre-show check written?
A: Prior to the first preview in Denver.
Q: Did [Niscon's] Mr. Jeremy assist you in writing the pre-show check cues?
A: No.
Q: Who wrote the pre-show check cues?
A: I did.
(Shepp Deposition, at 216).
Additionally, Niscon submits the testimony of David Benken (Benken), Buena Vista's technical director for the Little Mermaid, who testified that Buena Vista personnel ultimately approved the final version of the automation cues:
Q: In connection with the Little Mermaid did somebody approve the final version of the cues that were used in the opening night of the performance?
...
A: I mean several people looked at the cues. The cues had to do with the look of how the scenery was moving. So director had approval, designer had approval, I looked at them.
(Benken Deposition, at 284).
With respect to the visual warnings to which Volonino refers, Shepp testified that he also set those up with the technical assistance of Niscon's president Joe Jeremy (Jeremy) ( id. at 401–402).
Niscon is entitled to summary judgment dismissing the design defect claims against it, as the application of its Raynok software to the Little Mermaid was controlled by Buena Vista. The modifications recommended by Volonino, e.g., the use of constraints and auto-follows, reflect criticism of choices made by Buena Vista as to how to apply Niscon's software. Thus, Volonino fails to raise a question of fact as to whether a design flaw in Niscon's automation software was a cause of plaintiff's accident. As such, Niscon is entitled to summary judgment dismissing plaintiff's design defect claim.
2. Manufacturing Defects
Disney argues, without submitting an expert opinion, that there is a question of fact as to whether a manufacturing defect in Niscon's automation software caused plaintiff's accident. This contention is based on Shepp's testimony that, despite initially speculating that he got distracted and failed to close the trap door, he later became uncertain as to whether he failed to close the trap door (Shepp Deposition, at 139–140). Shepp alleges that his creeping doubt was prompted by various problems with the automation system on other occasions, especially a failure of the automation log to record cues on a date subsequent plaintiff's accident ( id. at 151–154). Shepp, however, does not state that he entered the cue for the trap door to shut.
Disney's speculation does not raise an issue of fact, as “a motion for summary judgment may not be defeated by a response based on surmise, conjecture and suspicion” (Marino v. Parish of Trinity Church, 67 AD3d 500, 502 [1st Dept 2009] [internal quotation marks and citation omitted] ). Here, where both of plaintiff's experts, and all of defendants experts, conclude that Shepp failed to enter the cue to close the trap door, and where Shepp has not stated that he did enter the cue, there is no question of fact as to whether Shepp entered the cue and the automation system failed to execute it. As such, there is no issue as to whether Niscon is liable for a manufacturing defect.
3. Warning Defect
Niscon argues that Buena Vista was a knowledgeable user well aware of the dangers inherent in a trap door in a piece of theatrical equipment suspended 35–feet above the stage, and controlled remotely by an automation operator. Moreover, Niscon contends that the manual for its automation software warned of safety protocols, and the system allowed Buena Vista to program warnings with which it was comfortable.
Plaintiff argues that Niscon failed to warn both Showman and Buena Vista of the dangers inherent in an open trap door 35–feet above a stage. However, plaintiff's own submissions show that Niscon, Showman, and Buena Vista were all well-aware of the obvious danger. Disney argues, again without submitting an expert opinion, that Niscon should have programmed the displays on the automation monitors differently.
Without stating it explicitly, Disney's position seems to be that Niscon should have forced Buena Vista, despite Buena Vista's control over the final show file and the layout of the displays, to design the display monitors in a way that would, during the time between the pre-show check and plaintiff's accident, have caused Shepp to look at them, instead of his personal computer ( see Shepp Deposition, at 308–309).
As opposed to the bridge and the trap door, where the ultimate users were actors, such as plaintiff, who were loaded on and off the bridge, the ultimate user with respect to the automation software was Buena Vista's behind-the-scenes personnel, especially Shepp, the automation operator. In this context, Shepp, and Buena Vista's production crew generally, were knowledgeable users, well aware of the dangers inherent in using software to remotely control a trap door 35–feet above the stage in a theatrical production. As such, Niscon is entitled to summary judgment dismissing plaintiff's strict liability claim based on an alleged warning defect.
B. Breach of Implied Warranties and Negligence
As discussed above with regard to Showman's motion for summary judgment, causes of action for strict products liability, breach of implied warranties, and negligence involving an allegedly defective product overlap significantly, as each requires a showing that a product defect was a significant factor in causing plaintiff's injury. As neither plaintiff nor Disney is able to raise a question of fact as to whether Niscon's automation system was defective, Niscon is entitled to dismissal of plaintiff's claims for breach of implied warranties of merchantability and fitness for a particular purpose, as well as plaintiff's claims sounding in negligence.
III. The Nederlander Entities
The Nederlander Entities are entitled to dismissal of all claims and cross claims as against them.
Initially, the court notes that no party opposes the branches of the Nederlander Entities' motion that seek dismissal of all claims and cross claims as against Lunt, Lunt Nederlander, and Stahlunt. As such reflects an intention by plaintiff and Showman to abandon their claims against these parties, the branch of the motion seeking dismissal of all claims and cross claims against Lunt, Lunt Nederlander, and Stalhunt is granted ( see Gary v. Flair Beverage Corp., 60 AD3d 413, 413 [1st Dept 2009] ).
Nederlander employed Terry Taylor (Taylor), a carpenter, and Danny Terrill (Terrill), a stage hand, who lowered the gangplank to allow plaintiff access to the bridge without checking to make sure that the trap doors were closed (Terrill Deposition, at 35). The claims against Nederlander are based on Terrill's alleged negligence and Taylor's alleged supervision of Terrill.
Nederlander argues that all claims against it are barred by the exclusive provisions of Workers' Compensation Law § 29(6), as it claims that its allegedly negligent general employees, Taylor and Terrill, were the special employees of Buena Vista, plaintiff's employer.
Under Workers' Compensation Law § 29(6), a worker is barred by the exclusive remedy of the statute from bringing an action against an allegedly negligent party's general employer, where that party is specially employed by plaintiff's employer (Gannon v. JWP Forest Elec. Corp., 275 A.D.2d 231 [1st Dept 2000] ). “A special employee is described as one who is transferred for a limited time of whatever duration to the service of another” (Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557 [1991] ), and “[w]hile the mere transfer does not compel the conclusion that a special employment relationship exists, a court is most likely to find that it does where the transferee controls and directs the manner, details and ultimate result of the employee's work” (Grilikhes v. International Tile & Stone Show Expos, 90 AD3d 480 [1st Dept 2011][internal quotation marks and citation omitted).
Nederlander submits, among other things, Buena Vista's response to its notice to admit, dated January 19, 2010, in which Buena Vista acknowledges that it exclusively controlled the work of Taylor and Terrill, as well as all of the other Theatrical Stage Employees Local 1 IATSE members working on the Little Mermaid (Buena Vista Notice to Admit January 2010 response to Nederlander's notice to admit, ¶¶ 1–19). Nederlander also submits an unsigned copy of the licensing agreement between Buena Vista and Lunt, the Nederlander entity which owned the theater. Section 5(d) of the unsigned agreement provides:
All personnel provided by [Lunt] shall be members in good standing with their respective unions. [Lunt] and [Buena Vista] will use their reasonable efforts and will work in cooperation and in compliance with union obligations of [Lunt] to resolve any conflicts regarding employees at the Theatre. [Buena Vista] shall have the right to interview and approve as well as to demand that Owner terminate with appropriate notice subject to relevant union contracts all theatre staff including treasurer, box office staff, stage hands, house manager, ushers....
Similarly, § 31 alludes to Buena Vista's control over the Nederlander employees:
[Buena Vista] will at its expense offer to all Theatre personnel a short “training” program and refreshers, as needed to prepare such employees for the expectations and standards of [Buena Vista]. Such program shall start with the Theatre Manager and the Theatre Manager shall organize the scheduling of the Theatre personnel for such training....
Nederlander also submits the deposition testimony of Patrick Eviston (Eviston), Buena Vista's head carpenter on the Little Mermaid, who testified that he was in charge of the crew, and that he gave direction as to the duties and responsibilities of Taylor and Terrill (Eviston Deposition, at 420–421). Taylor, whose deposition testimony Nederlander also submits, testified that Eviston told him whom to hire:
Q: Who would make the decision whether who or how many men you should hire during the performance of the Little Mermaid?
A: Pat Eviston ...
(Taylor Deposition, at 23).
Taylor also testified that he reported to Eviston, and that, generally, he got his direction from Buena Vista through Eviston:
Q: How did your job duties differ? If at all?
A: Um, yeah. Tremendously. He was—he has his plan, he knew what he wanted set up. He—he was blueprints, measurements. He was the one that dealt with the tech, he dealt with the stage managers, and everything went from them to him, and then he would tell me what was required.
Q: Would it be fair to say that you reported to Patrick Eviston?
A: Oh, yeah.
Q: Did you report to anybody else other than Patrick Eviston?
A: Sometimes David Benken [Buena Vista technical director] when he was in the building.
( id. at 37–38).
Additionally, Nederlander submits Terrill's deposition testimony. Terrill testified that his work was directed by Buena Vista's Eviston:
Q: When you first started at Little Mermaid, was it Terry Taylor that told you what you would be doing?
...
A: No, not really, what happens, he tells us to do whatever the production needs and that's what we do. So they establish that and that's what my job becomes. Once that's established.
Q: And when you say “the production,” who would you generally deal with getting instructions on what to do on Little Mermaid?
A: Patrick Eviston.
Q: And can you give me an example of something he told you to do for Little Mermaid?
A: Yeah, when he added my cue to lower the gang plank at five minutes, came up to the rail, for whatever reason on the deck they need that, I don't even know why, it is his job, he comes up, tells me what they want us to do and we fill the need.
(Terrill Deposition, at 51–52).
In opposition, plaintiff and Showman contend that there is an issue of fact as to whether Buena Vista exercised exclusive control over Terrill. Plaintiff and Showman submit the deposition testimony of Clifford Schwartz (Schwartz), a production stage manager and production supervisor for Buena Vista on the Little Mermaid. Schwartz was questioned regarding who had authority to fire Terrill:
Q: If [Terrill] were to be relieved of his role or position with regard to the performance of the Little Mermaid, who would make that determination?
A: I believe that would be [Taylor].
Q: What are you basing that on?
A: [Taylor] hires or supervises the hiring of the local stagehands and [Terrill] is a local stagehand.
(Schwartz Deposition, at 375).
This is not enough to rebut Nederlander's prima facie showing of entitlement to judgment, as Showman has made a showing that Buena Vista exclusively controlled Taylor's work on the Little Mermaid. Thus, whether Taylor had authority to fire Terrill does not raise a question of fact as to whether Buena Vista controlled both workers.
Similarly, plaintiff and Showman fail to rebut Nederlander's prima facie showing by reference to the licensing agreement between Lunt and Buena Vista. Plaintiff and Showman each rely on section 5(b) of the licensing agreement, which provides:
Notwithstanding [Buena Vista's] obligations to reimburse [Lunt] for the costs and expenses of personnel provided by [Lunt] pursuant to this agreement, none of the personnel provided by [Lunt] shall be deemed to be employees of [Buena Vista] ...
(Lunt–Buena Vista Licensing Agreement, § 5[b] ).
This provision is insufficient to raise a question of fact as to Taylor and Terrill's employment status, as it does not address the issue of whether union employees provided by Lunt are the special employees of Buena Vista ( see Thompson, 78 N.Y.2d at 559 [holding that a similar provision did not raise an issue of fact as to plaintiff's employment status] ).
Plaintiff is correct that Buena Vista's admission of control over Taylor and Terrill's work should be disregarded, as it goes to a disputed issue. A notice to admit “is to be used only for disposing of uncontroverted questions of fact or those that are easily provable, and not for the purpose of compelling admission of fundamental and material issues or ultimate facts ...” (Hawthorne Group v. RRE Ventures, 7 AD3d 320, 324 [1st Dept 2004] ). Since Nederlander submits Buena Vista's admissions to prove the fundamental issue of control, the court disregards it.
However, the rest of the record, including the licencing agreement and the deposition testimony of Eviston and Terrill, among others, shows that Buena Vista controlled the manner, details and ultimate result of Taylor and Terrill's work.
Since the court is disregarding Buena Vista's admissions in its responses to the notice to admit, it need not address Showman's suggestion that the responses were the product of collusion related to a requirement in the licensing agreement that Buena Vista procure insurance on behalf of the Nederlander enitities.
As such, Nederlander's motion to dismiss all claims and cross claims as against it is granted.
IV. Disney and George Tsypin
George Tsypin (Tsypin) is entitled to dismissal of all claims and cross claims as against him, while Disney is entitled to dismissal of plaintiff's complaint as against it, as well as some of the cross claims brought against it.
Initially, the court notes that plaintiff does not oppose the motion of Disney and Tsypin, a set designer who worked on the Little Mermaid. Plaintiff's complaint as against both parties is dismissed, as plaintiff's failure to address its claims against Disney and Tsypin shows a willingness to abandon these claims (Gary v. Flair Beverage Corp., 60 AD3d 413,supra ). Moreover, as no party contends that there is any basis for liability against Tsypin, all cross claims as against him are also dismissed.
Showman, however, which has cross claims against Disney for contribution, as well as common-law and contractual indemnification, does oppose letting Disney out of the case.
Generally, Disney argues that it cannot be liable for plaintiff's accident, as the allegedly defective products were not part of the scenery purchase agreement executed by Disney and Showman, and because it is immune from strict products liability as a casual seller.
Niscon also opposes the motion, but, as its opposition is conditioned on not being granted summary judgment dismissing all claims and cross claims as against it, and as it has been granted such relief, its opposition is moot.
Showman raises issues of fact regarding both arguments. With regard to the former, Disney contends that the subject of plaintiff's claim is the automation system, which Showman leased to Disney, rather than scenic elements which it purchased from Showman. However, the purchase agreement lists the bridge as one of the scenic items within the scope of the agreement (February 7, 2007 Disney/Showman Purchase Agreement, Exhibit A). As discussed above in regard to Showman's motion for summary judgment, plaintiff is claiming that the bridge was defective, e.g., because it lacked moveable rails.
As to the latter contention, Disney is not, on the basis of the “casual seller” exemption from strict products liability, entitled to dismissal of Showman's cross claims for indemnification. The Court of Appeals has distinguished sellers from manufacturers in imposing strict liability for defective products: “Unlike manufacturer strict liability ... which applies broadly, not every seller is subject to strict liability” (Jaramillo v. Weyerhaeuser Co., 12 NY3d 181, 188 [2009] [internal quotation marks and citation omitted] ). While “sellers in the normal course of business” have been held subject to strict liability, the casual seller “who is not engaged in the sale of the product in issue as a regular part of its business” is not (Sukljian, 69 N.Y.2d at 95). The policy fulcrum on which this distinction between sellers turns is whether holding the seller liable for the defective product would create “pressure for the improved safety of products” (Jaramillo, 12 NY3d at 192).
Here, Showman submits the deposition transcript of Dana James (James), a senior finance manager for Disney, who is responsible for overseeing the accounting department at Buena Vista (James Deposition, at 10). James testified that Disney is “a reseller and therefore holds a resale certificate and as a reseller ... they are exempt from sales tax” ( id. at 58).
Showman also submits the deposition testimony of Derrick Shen (Shen), director of sourcing and procurement for Disney. Shen described Disney's role in relation to other Disney entities: “We provide services to the various business entities in terms of sourcing or identifying suppliers of goods and services. And essentially establishing agreements with those particular suppliers to conduct business for the various business entities” (Shen Deposition, at 61).
James testified as to total price of the materials that Disney purchased and then resold to its related entity Buena Vista:
Q: What amount was quote paid by Buena Vista [ ] to [Disney]?
A: 5 million 464,744.05.
Q: Does that include scenery, props and so forth in addition to Showman's or is that all Showman's product?
A: No. This is inclusive of Showman's but everybody else's as well.
Q: Is that number an identical pass through of what [Disney] paid? In other words, if Disney Worldwide paid all the vendors 5 million when it “resells” to [Buena Vista], it sells for 5 million? It doesn't work at a profit? It doesn't add interest?
A: It is an exact pass through ...
(James Deposition, at 110).
Here, Showman has clearly raised an issue of fact as to whether buying goods and reselling them to other Disney entities such as Buena Vista was a regular part of Disney's business. Given the volume of Disney's purchases and resales, it is possible that holding it liable may apply pressure for the improved safety of products. Thus, whether Disney was a casual seller or one engaged in a regular part of its business when it sold Buena Vista the bridge is a question best left for the factfinder.
Thus, generally, there is a question of fact as to whether Disney may be liable to Showman for plaintiff's injuries. As to the specific cross claim for contractual indemnification, Disney makes a prima facie showing of entitlement to judgment by submitting the indemnification provision, as well as evidence that it was not triggered. The indemnification clause, section 9.2, of the purchase agreement between Disney and Showman provides, in relevant part:
[Disney] shall ... indemnify [Showman] ... from and against any and all losses, damages, injuries, causes of action, liens, claims, demands, penalties and expenses (whether based on tort, breach of contract, failure to obtain workers' compensation insurance or otherwise) including legal fees and expenses, of whatever kind or nature arising out of or on account of, or resulting from claims related to, any negligent act, error, or omission related to the performance of [Disney's] obligations pursuant to this Agreement.
Disney argues that this provision is not triggered, since Disney did not commit any negligent act, error, or omission related to the performance of its obligations pursuant to the purchasing agreement. Disney contends that those obligations were limited to paying Showman and crediting Showman for their contributions in the theatre program. In support, Disney submits the purchasing agreement and deposition testimony of Showman's president, Robert Usdin (Usdin), in which Usdin cannot recall Disney having any obligations under the agreement other than paying and crediting Showman (Usdin Deposition, 450–454). Showman fails to identify any obligation under the purchasing agreement that Disney failed to meet. Thus, Showman fails to rebut Disney's prima facie showing of entitlement to dismissal of Showman's cross claim for contractual indemnification.As to the remaining cross claims for common-law indemnification and contribution, Disney argues that Showman's cross claims must be dismissed as they are barred by the antisubrogation rule. The antisubrogation rule “prohibits the assertion of claims by one insured against another,” as an insurer “has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered” (Pitruzello v. Gelco Bldrs., 304 A.D.2d 302, 303 [1st Dept 2003] [internal quotation marks and citation omitted] ). Moreover, “[t]he antisubrogation rule is implicated by an insurer's duty to defend as well as its duty to indemnify” ( id. at 304).
Here, Hartford Fire Insurance Company issued an insurance policy to Showman under which it has acknowledged that Disney is an additional insured, while it has reserved its rights with respect to indemnification.
Showman contends that its claims against Disney are not barred by the antisubrogation rule, as the determination of whether Disney is an additional insured for indemnification purposes must await a finding of whether Showman was at fault in plaintiff's accident.
The Hartford's June 28, 2010 letter to Disney's counsel states that, after initially denying Disney coverage,
“we have reevaluated our position and at this time acknowledge that [Disney] ... [is an] additional insured under the Hartford policy. Hartford will therefore defend [this] entity in this case. However, since liability in this matter has not been established, the defense will be provided under a reservation of rights and Hartford will not indemnify [Disney] ... unless it is established that [its] liability in the action was caused in whole or part, by [Showman's] acts or omissions or the acts or omissions of those acting on [Showman's] behalf.” '
Showman's reliance on Haynes v. AAA Architectural Hardware Co. (22 Misc.3d 1122[A], 2009 N.Y. Slip Op 50219(U) [Sup Ct N.Y. County 2009] ) is unavailing, since no determination had been made in that case as to whether the party invoking the rule was an additional insured. Since the antisubrogation rule is implicated by an insurer's duty to defend, as well as its duty to indemnify, Showman is incorrect that the rule is inapplicable. However, Disney is not entitled to dismissal of Showman's cross claims, as the antisubrogation rule bars them only to the extent that any verdict in plaintiff's favor does not exceed the limits of the Hartford policy (Porter v. Annabi, 65 AD3d 1322, 1322 [2d Dept 2009]; Yong Ju Kim v. Herbert Constr. Co., 275 A.D.2d 709, 713 [2d Dept 2000] ).
CONCLUSION
Based on the foregoing, it is
ORDERED that defendant/third-party plaintiff/second third-party plaintiff Showman Fabricators, Inc.'s motion for summary judgment (motion seq. no. 006) is denied; and it is further
ORDERED that defendant/second third-party defendants Lunt Theatre Company and Lunt Nederlander Corporation, defendant/third-party defendant Nederlander Producing Company of American, Inc., and second third-party defendant Stalhunt Associates LLC's joint motion for summary judgment dismissing all claims and cross claims as against them (motion seq. no. 007) is granted with costs and disbursements to said defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that defendant Niscon, Inc.'s motion for summary judgment dismissing all claims and cross claims as against it (motion seq. no. 008) is granted with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that defendants Disney Worldwide Shared Services and George Tsypin's joint motion for summary judgment (motion seq. no. 009) is decided as follows:
• the branch of the motion that seeks dismissal of all claims and cross claims as against defendant George Tsypin is granted with costs and disbursements to said as taxed by the Clerk upon the submission of an appropriate bill of costs;
• the branch of the motion that seeks dismissal of defendant/third-party plaintiff/second third-party plaintiff Showman Fabricators, Inc.'s cross motion for contractual indemnity is granted;
• the branch of the motion that seeks dismissal of plaintiff's complaint as against defendant Disney Worldwide Shared Services is granted;
• the remainder of the motion is granted only to the extent that defendant/third-party plaintiff/second third-party plaintiff Showman Fabricators, Inc.'s is barred from recovering damages on cross claims against defendant Disney Worldwide Shared Services for any damages awarded to plaintiff that do not exceed the limits said defendant/third-party plaintiff/second third-party plaintiff's insurance policy; and it is further
ORDERED that the Clerk is to enter judgment accordingly and the action is continued against remaining defendants and third-party defendants.