Opinion
1411 CA 18–01122
06-14-2019
CHRISTOPHER J.G. and Tamara G., as Parents and Natural Guardians of A.G., Plaintiffs-Appellants, v. DERICO OF EAST AMHERST CORP., Doing Business as McDonald's, and McDonald's Corporation, Doing Business as McDonald's, Defendants-Respondents.
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (THOMAS P. KOTRYS OF COUNSEL), FOR PLAINTIFFS–APPELLANTS. GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (THOMAS P. KOTRYS OF COUNSEL), FOR PLAINTIFFS–APPELLANTS.
GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is affirmed without costs.
Memorandum: Plaintiffs commenced this negligence action to recover damages for injuries sustained by their daughter when her finger became caught in the space between a bathroom stall door and its doorjamb at defendants' restaurant. Supreme Court granted defendants' motion for summary judgment dismissing the complaint. We affirm.
Defendants met their initial burden by establishing that the stall door did not constitute an unreasonably dangerous condition (see Palmer v. Barnes & Noble Booksellers, Inc.,34 A.D.3d 1287, 1288, 824 N.Y.S.2d 850 [4th Dept. 2006] ), and plaintiffs failed to raise a triable issue of fact in response (see id. ). The affidavit of plaintiffs' expert was " ‘speculative and not sufficiently probative to defeat defendant[s'] motion for summary judgment’ " (id. ). Contrary to plaintiffs' further contention, we conclude that the alleged hazard posed by the bathroom stall door was also open and obvious, and therefore defendants had no duty to warn that the door presented a finger-pinching hazard (see Bluth v. Bias Yaakov Academy for Girls, 123 A.D.3d 866, 866, 999 N.Y.S.2d 840 [2d Dept. 2014] ; Boyd v. New York City Hous. Auth., 105 A.D.3d 542, 543, 964 N.Y.S.2d 10 [1st Dept. 2013], lv denied22 N.Y.3d 855, 979 N.Y.S.2d 561, 2 N.E.3d 929 [2013] ).
All concur except Whalen, P.J., and Curran, J., who dissent and vote to reverse in accordance with the following memorandum:
We respectfully dissent and conclude that defendants failed to meet their initial burden of showing that the subject door did not constitute an unreasonably dangerous condition (see generally Grefrath v. Defelice, 144 A.D.3d 1652, 1653, 41 N.Y.S.3d 845 [4th Dept. 2016] ) or that they did not create or have actual or constructive notice of the alleged hazard (see generally Wiedenbeck v. Lawrence, 170 A.D.3d 1669, 1670, 96 N.Y.S.3d 781 [4th Dept. 2019] ). The instant personal injury action was commenced by the parents of a two-year-old girl whose fingertip was severed at a McDonald's restaurant. The injury occurred when the girl's brother slammed a bathroom stall door and the girl's finger was caught between the door and the doorjamb, an area referred to as a "pinch point."
Defendants submitted the deposition testimony of a construction manager for defendant McDonald's Corporation, who stated that the corporation installs a device known as a "finger guard" on the doors of newly constructed restaurants to prevent pinch-point injuries. That evidence raises an issue of fact whether defendants were on notice that the door here presented an unreasonably dangerous condition because no finger guard was installed and distinguishes the present case from previous door-injury cases, in which there was no evidence that defendants were on notice of the danger of finger amputation caused by pinch points (see O'Brien v. Sayville Union Free School Dist., 87 A.D.3d 569, 570–571, 928 N.Y.S.2d 85 [2d Dept. 2011] ; DeCarlo v. Village of Dobbs Ferry, 36 A.D.3d 749, 750, 828 N.Y.S.2d 532 [2d Dept. 2007] ; Palmer v. Barnes & Noble Booksellers, Inc., 34 A.D.3d 1287, 1288, 824 N.Y.S.2d 850 [4th Dept. 2006] ; Aquila v. Nathan's Famous, 284 A.D.2d 287, 287–288, 725 N.Y.S.2d 371 [2d Dept. 2001] ; Walsh v. City School Dist. of Albany, 237 A.D.2d 811, 812, 654 N.Y.S.2d 859 [3d Dept. 1997] ).
The determination whether a condition is unreasonably dangerous "is generally a question of fact for the jury" ( Hayes v. Texas Roadhouse Holdings, LLC, 100 A.D.3d 1532, 1533, 954 N.Y.S.2d 348 [4th Dept. 2012] [internal quotation marks omitted] ) and may, under the circumstances, require consideration of the extent to which the defendants' duty to maintain a safe premises requires them to take into account the "well-known propensities of children to climb about and play" ( Collentine v. City of New York, 279 N.Y. 119, 125, 17 N.E.2d 792 [1938] ) and, perhaps, to accidentally slam doors on other children in the course of such play. The order should be reversed and the motion denied.