The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
These are motions for summary judgment brought by the
third-party defendants against the third-party plaintiff.
Plaintiff Betys Greenspon (Greenspon) brought this tort action
to seek damages for injuries allegedly incurred on September 2,
1987 at the Rickel Home Improvement Center located on Route 59 in
Monsey, New York (the Monsey store). Plaintiff, a handicapped
person, alleges that the injuries resulted after an entrance door
closed on her while she was still in the door's path in the
entrance corridor. Defendant Supermarkets General Corporation
(SG) owns, operates and maintains Rickel Home Improvement Centers
(Rickels) in several states, including the Monsey store. SG's
submissions do not identify the architect or builder of the
This suit was filed on October 19, 1987 and alleges
$1,000,000.00 in damages. On June 22, 1988, SG filed a
third-party complaint seeking indemnification and contribution
from New Jersey Automatic Door, Inc. (NJAD), a distributor of the
type of entrance door in place at the Monsey store; Besam
Automatic Doors, Inc. (Besam), a manufacturer of supermarket
doors; and the Mackenzie Group, with respect to whom all parties
stipulated on October 27, 1989 to discontinue their claims with
prejudice. On August 12, 1988, SG filed a second third party
complaint seeking indemnification and contribution from Door
Automation of New York, Inc. (DANY), a provider of service and
maintenance to the doors at the Monsey store. DANY subsequently
asserted cross-claims against Besam and NJAD.
Discovery was completed in July, 1989 after several extensions
of the original February 13, 1989 deadline set by the Honorable
Charles S. Haight, Jr., District Judge for the Southern District
of New York. See Order of Oct. 17, 1988. There have been
opportunities to depose all parties and, except for NJAD, all
parties have been deposed on either one or two occasions. In
addition, the parties have responded to all document requests.
NJAD, Besam and DANY, respectively, now move for summary judgment
against SG pursuant to Federal Rule of Civil Procedure 56.
To grant a motion for summary judgment a court must find that
there is no genuine issue as to any material fact, and that the
moving party is entitled to judgment as a matter of law because,
after sufficient time for discovery, the non-moving party has
failed to make a sufficient showing of an essential element of
its case as to which it has the burden of proof. Celotex Corp.
v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
At trial SG would have the burden of proving that the third-party
defendants had a role in the cause of the accident at the Monsey
store. Since there has been extensive discovery, SG must come
forward on these motions with "sufficient evidence . . . for a
jury to return a verdict" in its favor; otherwise, "there can be
but one reasonable conclusion" from the evidence, and summary
judgment must be granted for the moving parties. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505,
2510-11, 91 L.Ed.2d 202 (1986).
Discovery has revealed several facts which pertain to all of
the summary judgment motions. The door in which plaintiff claims
to have been injured was the second door in an entrance corridor.
The door was a Besam Power-Glide Model 3000-V. SG does not
dispute that the door was manufactured and installed in or
subsequent to February 1, 1981. See Besam 3(g) ¶ 7, Ex. I. The
door opened by automatically sliding to the right and then closed
by sliding back to the left. The opening of the door was
activated by an electric eye, a motion detector positioned above
the door. The electric eye surveys the field in the front of the
doorway and activates the opening of the door whenever there is
movement in that area. The door has a programmed cycle which will
automatically activate the door to close when the set time
period, when no motion has been detected in front of the doorway,
The evidence produced by discovery only supports one cause for
the accident: the absence of an auxiliary presence sensing device
(APSD). If there is no motion in the doorway, then the electric
eye will not cause the door to stay open, the programmed cycle
will elapse and the door will close. An APSD, such as a light
beam (hold-open beam) or floor mat, detects a presence in the
doorway and prevents the door from closing as long as that
presence is there, regardless of whether there is motion in front
of the door. Greenspon is physically disabled and required
crutches and leg braces to move through the doorway. Due to her
inability to move continuously, the door began to close while she
was still in the doorway. Plaintiff claims that if there had been
an APSD then the door would not have closed on her. See
Jaroslawicz Aff.Ex. A.
Section 5.3 of the American National Standards Institute (ANSI)
Standards, published in 1979, requires the installation of APSD's
when motion detectors are used to activate the opening of a door.
Moreover, the policies of SG, Besam, NJAD and DANY reflect a
belief that an automatic door activated by a motion detector is
unsafe when unaccompanied by an APSD. Rogers of SG testified that
it was standard practice for Rickel stores to require the
installation of APSD's. McGrath Aff. ¶ 19, Ex. F. Since October
1980, it has been Besam's practice to include hold-open beams in
all automatic door packages. Campbell Aff.Ex. B. In 1980, Besam
also held conferences with distributors to inform them of ANSI
Standard § 5.3 and sent an additional notice of Section 5.3 to
distributors in 1982. Campbell Aff. ¶¶ 910, Ex. E, F, G. In 1982,
NJAD also sent a notice to its customers which cited the ANSI
Standard and "strongly recommend[ed] that you install Hold Open
Beams in all automatic doors activated solely by motion
detectors." Flock Aff.Ex. A (Oct. 17, 1989). The notice
concluded, "If you do not do so, you may incur risk of injury to
persons using the doors and of legal liability to such persons."
Id. Finally, the Operations Manager for DANY, Mr. William
McGrath (McGrath), testified that it was DANY's practice to
recommend installation of APSD's. Kral Aff. in Opposition to DANY
Motion, Ex. B. Thus, the key issue which permeates these motions
is whether there is a genuine issue of fact as to whether the
absence of an APSD in the automatic door of the Monsey store on
September 2, 1987 was the result of a breach of a third-party
defendant's duty of care.
The third-party action against DANY is premised upon theories
of negligence, breach of contract, breach of warranty and strict
The first basis upon which SG claims DANY had a duty related to
the installation of an APSD is a service contract that was in
existence from April 1, 1987 through March 31, 1988 between SG
and DANY and covered the Monsey store. The contract between SG
and DANY required DANY to "inspect, clean, lubricate, adjust,
repair or replace worn components" through "two preventive
maintenance calls annually" and any additional "service calls"
requested by SG. McGrath Aff.Ex. C. There is no evidence that SG
ever made a specific call to DANY to request that DANY remedy the
absence of an APSD;
thus, the issue is whether a "preventive maintenance call"
encompasses a duty to remedy the absence of an APSD.
The agreement specifically provides for the repair of
"inoperative" APSD's; however, there is no reference in the
service agreement to a duty to advise the store to purchase an
APSD. The standard "Rickel Home Centers Specifications for an
Automatic Door Service Contract and Preventive Maintenance
Agreement" (the Specifications) further shows that SG entered
into the contract without any intention of expecting DANY to make
any changes in the door equipment design beyond basic repairs.
McGrath Aff.Ex. D. ...