Appellate Division, Third Department
Merrill v. Elmira Heights Central School District
Appealed from Supreme Court, Chemung County
Background: The appeal is from a ruling that denied the defendant’s motion for summary judgment dismissing the complaint. The plaintiff commenced action to recover damages for injuries she suffered when she fell while climbing the retractable bleachers in the defendant’s gymnasium. She testified that as she held the railing for support while turning into a row, it swayed, causing her to fall. The railings were removable, and were assembled and installed only when the bleachers were fully extended. When the bleachers were retracted against the gym wall, the railings were removed, disassembled and stored. When the defendant moved for summary judgment dismissing the complaint, the plaintiff opposed the motion in part on the ground that the bleacher’s railing system had been replaced during the pendency of the action. The supreme court held the motion in abeyance and invited a request for spoliation sanctions, precluding the defendant from contesting the plaintiff’s description of the amount of sway in the railing and from offering proof of the condition of the railing system at the time of the accident.
Ruling: The defendant established its prima facie entitlement to summary judgment by demonstrating its bleachers and railings were inspected regularly, there was a minimal amount of sway in the railings that could not be eliminated completely and there were no complaints or prior accidents with respect to the railings. The burden then shifted to the plaintiff to raise issues of fact requiring a trial. In addition to the plaintiff’s testimony concerning how the accident occurred, Carol Sullivan, an employee of the defendant, testified that the railings always had a sway of about three to four inches and that it was important to ensure they were assembled properly each time they were installed to eliminate as much sway as possible. Viewing the evidence in a light most favorable to the plaintiff, there is an issue of fact concerning whether the defendant created a dangerous condition in its assembly of the railing on the date in question. The order is modified only to the extent of reducing the spoliation sanction to an adverse inference charge at trial.
Gregory A. Cascino of Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger for the appellant; Adam M. Gee of Ziff Law Firm LLP for the respondent