Supreme Court, Manhattan: Expert Testimony Reliant Upon Non Mandatory Guidelines & Fresh Particulars Not Sufficient To Defeat Summary Judgment Motion

In Alpert v Gymboree Play Programs, Inc. (2008 NY Slip Op 32988(U)) the Supreme Court in Manhattan examined the proper standard of expert testimony required to support a prima facie showing in the context of a CPLR 3212 motion.

The plaintiff was an infant injured when using playground equipment in a private supervised children playground in Manhattan. The plaintiff's complaint alleged that there was a lack of proper supervision and that the playground equipment lacked proper padding. The defendant moved for summary judgment under CPLR 3212.

The plaintiff led expert testimony from an expert witness who cited the American Society for Testing Materials Standard relating to consumer standards for home playground equipment and further to the US Consumer Product Safety Commission. The expert witness gave testimony through his report, that:

"...the proximate cause of the accident suffered by [plaintiff] was the absence of required handrails on the subject equipment and the failure of Gymboree, Inc., to require approved slip-resistant footwear. Further, it is my additional considered opinion, rendered to a reasonable degree of certainty in my areas of expertise enumerated below, that had either of the two items enumerated as the aggregate proximate cause of the accident been corrected and had there been either handrails or approved sneakers in use, the accident would not have occurred and the injuries not suffered..."

The court restated the principle that once the moving party had established a prima facie showing of entitlement to summary judgment, the burden shifted to the opposing party "to produce evidentiary proof sufficient to establish the existence of material issues of fact"

In examining the expert witness's report, the court found:

First, [the expert witness's] report alleges that the proximate cause of the accident was the lack of handrails on the A-frame apparent failure of Gymboree to require children to wear slip-resistant footwear. Neither negligence was alleged by plaintiff in the bill of particulars. “A plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting a new theory for negligence for the first time in opposition to the motion.... Second, [the expert witness] bases his conclusions on rules promulgated by the American Society for Testing and Materials and the United States Consumer Product Safety Commission. Absent evidence that a particular non-mandatory guideline or recommendation promulgated by government or professional entities have been adopted into actual practice, it will not be held to place a higher standard of‘ care on a defendant...Guidelines established by the American Society for Testing and Materials and the United States Consumer Product Safety Commission are not mandatory and are not considered in determining whether a playground apparatus was negligently designed or installed.