Gilson v. Metropolitan Opera

Here, plaintiffs argue that in exercising its duty of care to its patrons, defendant had an affirmative duty to escort Taitt to his seat because of his obvious infirmity. Defendant counters that plaintiffs’ proposed duty would place undue burden on theater owners beyond the limits of the duty to maintain their premises in reasonably safe condition. We agree with defendant.

Adopting plaintiffs’ proposed duty would significantly enlarge the duty of theater owners to their patrons. Defendant cannot be “an insurer of the safety of [its patrons, and its] duty is only to exercise reasonable care for their protection” (Prosser and Keeton, Torts § 61, at 425 [5th ed]). Moreover, defendant’s relationship both to plaintiffs and Taitt did not put it in the best position to protect from the risk of harm posed by Taitt’s infirmity (see Alfaro v Wal-Mart Stores, Inc., 210 F3d 111 [2d Cir 2000]).

Additionally, plaintiffs argue and the dissent concludes that defendant’s “Performance Staff Rules and Guidelines” provide some independent evidence of negligence. The internal policy upon which plaintiffs rely provided that “[t]icket holders should be escorted to their seats with the aid of flashlights when the House Lights are low, and particularly requested to watch their step.” These internal guidelines go beyond the standard of ordinary care and cannot serve as a basis for imposing liability. As we stated in Sherman v Robinson ( 80 NY2d 483 , 489 n 3 [1992]), “[violation of a company’s internal rules is not negligence in and of itself, and where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence.”

Accordingly, the order of the Appellate Division should be affirmed, with costs.

(dissenting). Because there are material questions of fact as to whether employees of the Metropolitan Opera

Plaintiff Estelle Gilson attended a performance of the Metropolitan Opera (Met) at Lincoln Center in December 2001, sitting in an aisle seat. An elderly couple with seats inside the row, Donald and Caroline Taitt, returned approximately 10 minutes late from an intermission, after the houselights had gone down, without any assistance from ushers. Donald Taitt suffered from Parkinson’s disease and Alzheimer’s disease and, allegedly, looked particularly infirm on this night. When plaintiff Gilson got up and stepped into the aisle to give the Taitts room to pass, Donald Taitt lost his balance and fell into her, knocking her down some steps and into the balustrade at the edge of the balcony. These are the alleged facts.

The trial court denied the Met’s motion for summary judgment, stating there were “questions of fact including, but[ ] not limited to[,] whether defendant maintained the stair aisles in a dangerous manner thereby causing a dangerous condition which caused the plaintiff’s accident” (Gilson v Metropolitan Opera, Sup Ct, Bronx County, Apr. 9, 2004, Index No. 6001/02). The Appellate Division reversed the order and dismissed the claim against the Met in a 3-2 decision. The majority reasoned that the facts did not demonstrate that the Met had a duty to provide an escort for Mr. Taitt. The two-Justice dissent disagreed, arguing that there were material issues of fact requiring a trial.

Only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]). “Summary judgment is often termed a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue. ... It does not deny the parties a trial; it merely ascertains that there is nothing to try” (Siegel, NY Prac § 278, at 459-460 [4th ed]).

In Longacre v Yonkers R.R. Co. ( 236 NY 119 , 123 [1923]), this Court held that a jury had the right to determine whether employees of a railroad breached the standard of reasonable care when they failed to recognize the growing danger that two unruly children created for themselves as they ran about the rail-car unrestrained. The Court reasoned that although there was no duty to operate railcars for the purpose of safely carrying unruly children, a motorman’s failure to do any reasonable thing to prevent an accident could have fallen short of reasonable care. The Court wrote:

“The real and full question is whether the [railroad’s] employees when they saw two young children escaping from their attendant and running about the car ought to have done some reasonable thing to prevent such an accident as happened. It was not bound to take the particular step of closing the vestibule doors or of closing the doors leading to the platform or of driving the children back into the car or of putting them off of the car. . . . [B]ut we think that a jury had the right to say that when it failed to exercise any of them it fell short of reasonable care. Of course a railroad is not bound to construct or operate its cars for the purpose of safely carrying unruly children or drunken adults.” {Id. at 124.)

Likewise, in the present matter, a jury should be given the opportunity to say that the Met’s conduct did or did not fall short of reasonable care when employees let Mr. Taitt into the theater without an usher escorting him with a flashlight, despite the Met’s argument that it had no duty to look out for infirm patrons.

In concluding that defendant is entitled to summary judgment, this Court ignores its own precedents. In Basso v Miller ( 40 NY2d 233 [1976]), we held that a defendant has a duty to keep its premises in a reasonably safe condition. This Court stated further that a landowner must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (id. at 241). In Gallagher v St. Raymond’s R.C. Church ( 21 NY2d 554 , 557 [1968]), this Court stated: “Whenever the general public is invited into stores, office buildings and other places of public assembly, the owner is charged with the duty of providing the public with a reasonably safe premises, including a safe means of ingress and egress.” Providing lighting to one’s property may be a reasonable response for a private landowner who knows, or should know, that someone visiting his property will confront a hazard that could be reasonably avoided by illumination (Peralta v Henriquez, 100 NY2d 139 , 144 [2003]). The majority argues that defendant, through its employees, was not in a position to assess the risk posed by Mr. Taitt’s ambulation. This argument ignores the Met’s basic duty to keep patrons from harm since “[l]andowners have a

engineering certainty that the Metropolitan Opera house creates a dangerous and unsafe condition for pedestrians on the aisles of the Dress Circle Section when the house lights are down.”

The Met disputes the relevance of plaintiffs’ expert’s affidavit, as the area tested was not the same aisle Mrs. Gilson fell in on the night in question. Defendant also questions the relevance of the expert’s findings since there is no evidence that the lighting on the night he tested was the same as the night of the accident. The expert affidavit is enough, however, to establish a question of fact of whether the Met exercised reasonable care.

Similar to the dissenting Justices below, I do not rely only on the Met’s internal guidelines or the alleged New York City Building Code violations. As patrons, both appellant and Mr. Taitt were owed a duty of maintained safe premises. Employees of the Met made a discrete decision to let Mr. Taitt into the performance once intermission had ended. Therefore, under the totality of circumstances, the question of whether they acted reasonably should be left to the jury.

For the foregoing reasons, I dissent.

Chief Judge Kaye and Judges Rosenblatt, Graffeo, Read and R.S. Smith concur with Judge Ciparick; Judge G.B. Smith dissents and votes to reverse in a separate opinion.

Order affirmed, with costs.