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April 10, 1990


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 Monsey store.

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, has elapsed.

The manager of the Monsey store, Arthur Bamonte, tested the door immediately after the accident and found that the motion detector and the programmed closing cycle were operating properly. Mr. Patrick J. Rogers (Rogers), the manager of store construction and maintenance for Rickels, testified that there was never any indication of a problem with the operation of the door at the Monsey store. Besam 3(g), Ex. L. Neither before nor after the accident did SG request an adjustment or repair of the motion detector or the closing device. Finally, the report of SG's investigator did not discuss or attribute the cause of the accident to any malfunction in the motion detector or the closing device.*fn1 Jaroslawicz Aff.Ex. A. The only support which SG cites for attributing the cause of the accident to a "malfunction" in the machinery that was in place is the use of the word "malfunction" in the plaintiff's complaint. Kral Aff. in Opposition to Motion of DANY ¶ 10.

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 liability.

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. ...

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