In Hotaling v The City of New York 2009 NY Slip Op 04303 the Court of Appeals affirmed the decision of the First Department in Hotaling v City of New York 2008 NY Slip Op 07951 [55 AD3d 396] and held that the expert witness's testimony was insufficient at law to sustain a prima facie case of negligent design, referring to Buchholz v Trump 767 Fifth Ave., LLC 2005 NY Slip Op 04613 [5 NY3d 1].
The appellant had been awarded damages at trial before a jury for an accident that occurred while he was employed by the City. The basis of the appellants claim was negligent design. The appellant walked through a double swinging door during a fire drill and while turning right to continue to a staircase to exit the building was immediately hit by the second of the swinging doors being used by another exiting person.
At trial the appellant led evidence through an expert witness, the doors were negligently designed in that they allowed for an accident of the type in question, where a person was walking immediately to the staircase, that they were not restricted from swinging too quickly, and that the narrow viewing panel in the doors were too restrictive such as to prevent a person using the door from establishing it was safe to use. In contrast to the plaintiff, who did not lead any evidence that the City had violated the Building code at the time the building had been built, the City led evidence through its expert witness that the building design fully complied with the Building Code, and that the plaintiff's expert witness's conclusions that the design of the doors violated industry standard were erroneous.
First Department held:
The absence of a violation of the New York City Building Code may not always establish, as a matter of law, the absence of negligent design. Especially if there is no Building Code provision directly applicable to a particular design feature, other types of industry-wide standards may be applicable to determine whether a party was negligent. In either event, however, in this matter there is insufficient support for plaintiffs' negligent design claim. Before a claimed industry standard is accepted by a court as applicable to the facts of a case, the expert must do more than merely assert a personal belief that the claimed industry-wide standard existed at the time the design was put in place. Nor are mere nonmandatory guidelines and recommendations sufficient (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544-545 [2002]; Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384, 386 [2003]). The expert must offer concrete proof of the existence of the relied-upon standard as of the relevant time, such as "a published industry or professional standard or . . . evidence that such a practice had been generally accepted in the relevant industry" at the relevant time (Jones v City of New York, 32 AD3d 706, 707 [2006]).
In Buchholz v Trump 767 Fifth Ave., LLC (5 NY3d 1 [2005]), the Court affirmed a grant of summary judgment dismissing the complaint of a plaintiff who had accidentally fallen through a 13th-floor window in the course of roughhousing, where the plaintiff's expert had asserted that industry standards required installation of either tempered glass or a protective barrier bar, because "[p]laintiff's expert cited no authority, treatise, standard, building code, article or other corroborating evidence to support his assertion that good and accepted engineering and building safety practices" required these measures (id. at 8-9).
The essence of plaintiffs' claim was the assertion by Lustbader that the design of the doors at issue deviated from "human factors" design standards. Lustbader primarily relied upon the Human Factors Design Handbook, by Woodson and Tillman, for the industry standards he applied. However, he failed to establish that these purported standards were published, generally accepted, or even in existence in 1970. His testimony on that point was limited to his asserted "belief" that the first edition of the handbook "goes back some 30, 40 years," and that "the early versions predate 1970." However, not only did he fail to establish the existence of any such pre-1970 version, but also he did not verify that any such purported pre-1970 version contained the same standards as the later edition upon which he relied. Indeed, defendants established in their posttrial motion that the first edition of the Woodson handbook was published in 1981, rendering Lustbader's reliance on the standards set forth in the handbook inapplicable as a matter of law.
As to plaintiffs' contention that, although the handbook had not yet been published, the underlying principles were widely accepted prior to 1970, they merely cite three cases that discuss the admissibility of testimony regarding human factors standards without addressing whether the standard existed at the relevant time so as to be applicable to the facts at issue (see Wichy v City of New York, 304 AD2d 755 [2003]; Nowlin v City of New York, 182 AD2d 376 [1992], affd 81 NY2d 81 [1993]; Elmlinger v Board of Educ. of Town of Grand Is., 132 AD2d 923, 924 [1987]). While expert testimony as to human factors design standards has been ruled [*3]admissible, nevertheless, plaintiffs' expert failed to establish that the human factors design industry standards he relied upon were published or in general acceptance in the building construction industry in 1970.
Since the testimony of plaintiffs' expert failed to support plaintiffs' claim that the design of the doors in question violated accepted industry standards at the time the school was built, plaintiffs failed as a matter of law to make out a prima facie case of negligent design. The judgment must therefore be reversed and the complaint dismissed.
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.
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.
