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Basketball, Glass Doors, and Premises Liability (NY)

January 22, 2021

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<p style="text-align: justify;"><a href="https://www.wcmlaw.com/wp-content/uploads/2021/01/Acevedo-v.-The-Madison-Square-Garden-Co.pdf"><em>Acevedo v. The Madison Square Garden Co</em></a><em>., </em>No. 157997/16, 2021 WL 65434 (NY Sup. Ct. Jan. 7, 2021) is a personal injury case, wherein Plaintiff alleged damages after walking into a transparent glass panel upon ingress to Madison Square Garden. Specifically, Plaintiff claimed defendants were negligent by failing to mark the glass panel, which he collided with after passing through security at the premises. Plaintiff’s claims were supported by an engineering expert opinion, who averred the glass panel violated NYC Building Codes, Labor Law § 241-b, and 2 RCNY § 4-03. At the time of injury, the venue was hosting an international basketball game that was organized pursuant to a License Agreement between Defendant USA Basketball and Defendant MSG (numerous entities consolidated for purposes of this dispute). <em>Acevedo</em> resolved pending summary judgment motions, which were brought by USA Basketball and MSG.</p>
<p style="text-align: justify;">First, USA Basketball sought to dismiss the complaint and all crossclaims by MSG, arguing MSG maintained the responsibility to admit patrons into the premises, check them for security purposes, and USA Basketball had no involvement in security procedures, whatsoever. USA Basketball also averred the alleged dangerous and defective condition was not reasonably foreseeable to warrant a finding of liability against it or MSG. In support, USA Basketball put forth expert evidence arguing that the applicable Building Codes did not require the glass panel to be marked.</p>
<p style="text-align: justify;">Next, MSG also sought to dismiss the complaint and all crossclaims, with declarations (by virtue of the License Agreement) that USA Basketball was required to defend and indemnity MSG and breached its contractual duties to procure insurance. MSG also argued Plaintiff’s accident was not caused by a dangerous or defective condition (i.e., there were no violations with the glass panel).</p>
<p style="text-align: justify;">The court resolved the motions by reviewing premises liability principles. In its analysis, the court reasoned that property owners have the duty to keep their premises in a reasonably safe condition to prevent an invitee from becoming injured. To prove a defendant’s negligence under a premises liability theory, the plaintiff must demonstrate: (1) the premises was not reasonably safe; (2) defendant either created the dangerous condition or had notice of the condition (actual or constructive); (3) and defendant’s negligence in allowing the unsafe condition to exist was a substantial factor in causing injury. <em>See Schwartz v. Mittleman</em>, 220 A.D.2d 656 (2d Dep’t 1995).</p>
<p style="text-align: justify;">In analyzing whether to grant summary judgment, the court reasoned, given the above, the premises’ owner – MSG – failed to demonstrate entitlement to summary judgment dismissing Plaintiff’s complaint. Even if the applicable Building Codes did not require the glass panel to be marked, a reasonable fact finder could conclude the security procedures employed at the time constituted a dangerous condition (i.e., the glass panel was situated with no markings or warnings in an area with other open doors). Accordingly, MSG’s motion seeking dismissal of Plaintiff’s complaint was denied.</p>
<p style="text-align: justify;">USA Basketball, however, was not the premises owner – it was merely using the premises as a licensee. The court articulated there is “no caselaw defining the duty of care that a licensee owes to someone on the premises licensed” that could support Plaintiff’s claims against USA Basketball. Logically, the Court noted that if a tenant did not have a duty to mark the glass in accordance with the Labor Law or the Industrial Code, a mere licensee certainly cannot be said to have such a duty. <em>See Griffin v. State of New York</em>, 83 A.D.3d 1357 (3d Dep’t 2011) (quotations omitted). After reviewing the License Agreement, Plaintiff’s injury unequivocally occurred in the area that was licensed to USA Basketball. However, the court reasoned, regardless, using the premises “does not transform USA Basketball into a possessor of the premises.” Therefore, the Court concluded USA Basketball could not be held liable under ordinary premises liability principles.</p>
<p style="text-align: justify;">However, the Court concluded that USA Basketball could be liable pursuant to its License Agreement with MSG and subsequently engaged in an analysis to determine if the Plaintiff’s claims against USA Basketball would survive on this basis. The Court stated that contractual obligations generally do not give rise to a duty of care in favor of third-parties. But where a defendant fails to exercise reasonable care in the performance of his or her duties, or “launches a force or instrument of harm,” the defendant assumes a duty of care to third parties and may be held liable. <em>Espinal v. Melville Snow Constr.</em>, 98 N.Y.2d 136 (2002). Here, USA Basketball established it was not responsible for security, did not hire security guards, and otherwise had nothing to do with the area where Plaintiff was injured. Accordingly, the Court found USA Basketball did not owe Plaintiff a duty of care and dismissed Plaintiff’s claims against USA Basketball on this basis.</p>
<p style="text-align: justify;">Lastly, the Court resolved the portion of the motions concerning contractual indemnification. “A party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances.” <em>Drzewinski v. Atlantic Scaffold &amp; Ladder Co.</em>, 70 N.Y.2d 774, 777 (1987) (citations and internal questions omitted). However, “GOL § 5-322.1 prohibits and renders unenforceable any promise to hold harmless and indemnify a promisee which is a construction contractor or a landowner against its own negligence.” <em>Kilfeather v. Astoria 31st St. Assoc</em>., 156 A.D.2d 428 (2d Dep’t 1989).</p>
<p style="text-align: justify;">Pursuant to the License Agreement, USA Basketball (Licensee) agreed to broadly indemnify MSG (Licensor) “from and against any and all liabilities, losses, damages … arising out of or in connection with … the use of the Building, or any part thereof ….” This included “all areas and facilities utilized for ingress and egress of guests, provided, however, that Licensee shall have no obligation to indemnify Licensor to the extent that the Losses arise from the willful misconduct of Licensor or its employees or agents.”</p>
<p style="text-align: justify;">In the Court’s analysis, the Court concluded that MSG failed to demonstrate freedom from negligence, specifically that Plaintiff’s accident did not arise out of willful misconduct by MSG or its employees/agents. The Court noted MSG’s argument in reply “that it did not need to provide an affidavit from the security guard present at the time of plaintiff's accident because same was never demanded.” Apparently, this omission was a critical mishap by MSG – which would have sufficed as prima facie evidence that the loss did not arise out of willful misconduct by the Licensor or its employees or agents. Therefore, the Court determined questions of fact existed as to MSG’s security procedures and whether the glass panel met statutory requirements and/or was dangerous – and both MSG and USA Basketball’s motion for summary judgment as to contractual indemnification were denied.</p>
<p style="text-align: justify;">Accordingly, this case demonstrates that defendants should be sure to produce affirmative evidence regarding their obligations and actions in connection with an accident, as this type of evidence will likely be required by a court to determine whether there are any questions of fact regarding the applicability of contractual indemnity provisions, especially when there are carve outs for willful misconduct.</p>
<p style="text-align: justify;">Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact <a href="mailto:chayes@wcmlaw.com">Colleen Hayes</a>.</p>

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