Marcano v. Schindler Elevator Corporation

Background

Katherine Marcano alleged that, on August 22, 2021, an elevator door at the Macy’s Department Store in Herald Square struck her left shoulder as she entered Elevator 35. She testified that the door closed “very strongly” and “very fast,” and that it was closing much faster than normal. She alleged that the accident caused serious injuries, including a torn rotator cuff and a superior labrum anterior to posterior tear in her left shoulder, for which she underwent surgery, as well as cervical disc injuries.

Marcano brought a traditional negligence claim and a res ipsa loquitur claim against Schindler Elevator Corporation. Res ipsa loquitur is a legal doctrine that can allow a fact-finder to infer negligence from an accident when the type of event ordinarily would not happen without negligence, the relevant instrumentality was under the defendant’s exclusive control, and the injured person did not voluntarily contribute to the event.

Schindler maintained the elevators at the store. Before the accident, it performed routine maintenance on Elevator 35 eleven times in the preceding two years, including checks of the door speed, pressure, and reopening device. A New York City Department of Buildings inspection seven weeks before the accident found no violations or deficiencies. Schindler employees also recalled no prior complaints, accidents, or repair orders involving Elevator 35’s door system.

Expert Report

The court declined to consider the unsworn report of Schindler’s liability expert, Jon Halpern, when deciding summary judgment. The court explained that summary judgment generally relies on admissible evidence and that producing a report during discovery or not deposing the expert does not make an otherwise unsworn report admissible. The court noted that Halpern’s report had not been submitted by Marcano and had not been confirmed under penalty of perjury.

Traditional Negligence Claim

Under New York law, a negligence claim requires proof of a duty, a breach of that duty, causation, and damages. A company that agrees to maintain an elevator safely may be liable if it fails to correct a condition it knew about or failed to use reasonable care to discover and correct a condition it should have found.

The court held that Schindler made an initial showing that Elevator 35 had been functioning properly before and after the accident. Marcano therefore had to provide evidence from which a reasonable fact-finder could conclude that Schindler either created the defect or had actual or constructive notice of it. Actual notice means that Schindler knew about the defect. Constructive notice means that the defect was visible and apparent and existed long enough that Schindler should have discovered and fixed it.

Marcano did not claim that Schindler had actual notice. She argued that an apprentice’s allegedly unsupervised maintenance work and Schindler’s inspection practices created a factual dispute about constructive notice. The court rejected those arguments as speculation because Marcano offered no evidence identifying a specific defect or showing that a reasonable inspection would have revealed one. The court therefore granted Schindler’s motion for summary judgment on the traditional negligence claim.

Res Ipsa Loquitur Claim

The court reached a different result on Marcano’s res ipsa loquitur claim. Schindler did not dispute that it had exclusive control of the elevators. The court found factual disputes about the other two requirements.

First, a reasonable jury could find that an elevator door closing with enough speed and force to cause substantial injury is the type of event that ordinarily would not occur without negligence. The court rejected Schindler’s argument that Marcano had to eliminate every other possible cause of the accident. Schindler could present evidence at trial that the injury resulted from a non-negligent malfunction or another cause.

Second, the court found a factual dispute about whether Marcano voluntarily contributed to the accident. Schindler argued that Marcano could have activated the door reopening device while entering the elevator. But Schindler did not provide evidence establishing that the circumstances matched the older cases on which it relied, and Marcano’s coworker had entered immediately before her. The court held that a jury could therefore decide whether Marcano contributed to the accident.

Because factual disputes existed concerning all three elements of res ipsa loquitur, the court denied Schindler’s motion for summary judgment on that claim.

Disposition

The court granted Schindler’s motion for summary judgment with respect to Marcano’s traditional negligence claim and denied it with respect to her res ipsa loquitur claim. The parties were directed to submit a proposed joint pretrial order and related materials within thirty days. The court also directed them to confer about settlement and terminated Schindler’s summary-judgment motion from the docket.