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NICHOLS v. UNITED EXPOSITION SERV. CO.

October 12, 1995

ROBERT NICHOLS, et ano., Plaintiffs, against UNITED EXPOSITION SERVICE COMPANY, et al., Defendants. UNITED EXPOSITION SERVICE COMPANY, et al., Third Party Plaintiffs, -against- CHARLES D. OWENS MANUFACTURING COMPANY, INC., Third Party Defendant. THALHEIM EXPOSITION, Second Third Party Plaintiff, -against- OWEN BROOKER McCAULEY SALES COMPANY, Second Third Party Defendant.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 On May 8, 1991, plaintiff Robert Nichols, a salesman for third party defendant Charles D. Owen Manufacturing Company ("Charles D. Owen") was injured by a falling exhibit booth while working at a trade show at the Javits Convention Center. The show was organized by defendant Thalheim Exposition ("Thalheim"), then an unincorporated division of defendant Miller Freeman, Inc. ("Miller"). The booth had been erected by defendant United Exposition Service Co. ("United"). Plaintiffs bring this negligence action against Thalheim, Miller, *fn1" and United. Thalheim and Miller have impleaded Charles D. Owen, Nichols' employer. Thalheim has impleaded Owen Brooker McCauley Sales Company ("Owen Brooker"), alleging that it too employed Nichols at the time of the accident. The matter is before the Court on motions of (a) Thalheim for summary judgment dismissing the complaint as to them on the ground that they were not responsible in any way for the booth that collapsed, (b) Charles D. Owen and Owen Brooker (collectively, "Owen") to dismiss the third party complaints on the alternative grounds that they are barred by a release executed by plaintiffs in their favor in settlement of a prior unrelated action and that they were not negligent, and (c) plaintiffs to try liability and damages separately and to require Thalheim to select one law firm to represent it at trial.

 The Thalheim Motions

 Thalheim's position is simplicity itself. Thalheim ran the trade show at which the accident occurred, leasing space from the Javits Center, selling exhibit space, and obtaining names of contractors to set up booths for exhibitors. United, however, contracted directly with Owen for the construction and rental of the Owen booth in which plaintiff was injured. Hence, Thalheim contends that it owed no duty to plaintiff and that no trier of fact reasonably could find that it was negligent.

 Plaintiffs' position is equally straightforward. They point to testimony that Thalheim had personnel on site during the trade show whose responsibilities included ensuring that the installation, operation and breakdown of the show went smoothly. While they were not responsible for installation of the booths, they were charged with walking around the floor during the show and making "sure that everything was the way it was supposed to be . . . " There is evidence also that Thalheim personnel at trade shows on occasion had observed boards in exhibit booths that had been "wobbly or unstable" and that looking for such conditions was among their responsibilities. There is no evidence, however, that any such observation was made at the particular show in question.

 If Thalheim shared control over the premises in which the accident occurred, its position was equivalent to that of a landowner on whose premises an injury occurs. See DeClara v. Barber Steamship Lines, 309 N.Y. 620, 629-30, 132 N.E.2d 871 (1956). In that event, it may be held liable only if it created or had actual or constructive knowledge of the dangerous condition that caused the accident, but failed to correct it. E.g., Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 (1986). There is no suggestion here that Thalheim created a dangerous condition. The only questions are whether there is evidence sufficient to raise a triable issue of fact as to (a) the existence of shared control, and (b) actual or constructive notice.

 Without unduly extending this memorandum, the Court concludes that summary judgment is inappropriate on these issues. The testimony concerning the presence of Thalheim personnel performing oversight or supervisory functions on the site raises a genuine issue as to shared control. The existence of a triable issue as to constructive notice is evident from (a) plaintiff's testimony that he finished setting up the booth on May 5, 1991, that he had problems with samples sliding off shelves in the booth on May 6, and that he observed the wall to which the shelves were attached wobbling, and (b) the evidence that Thalheim personnel patrolled the exhibition hall and were responsible for looking for such conditions. Viewing the evidence in the light most favorable to the plaintiffs, it appears that a reasonable trier of fact could infer that the allegedly unstable condition of the booth was noticeable for at least two days before the accident and, in consequence, that Thalheim was chargeable with knowledge of that fact.

 The Owen Motion

 Owen moves for summary judgment dismissing all claims and cross claims against it on the grounds that a release executed by plaintiffs in its favor bars defendants' claims over against Owen and, in any case, that it is entitled to judgment as a matter of law on the claims over because no reasonable trier of fact could find any basis of liability on its part.

 The release in question came about as the result of the termination of Nichols' employment in May 1991. Nichols then sued Owen for wrongful termination in the Western District of North Carolina. That case was settled, and the release signed, on or about July 21, 1993, which antedated the filing of this action but long post-dated the date of the accident here at issue. The threshold question is whether the release surrendered any claim that the plaintiffs may have had against Owen as a result of the accident at the Javits Center.

 The release contains recitals describing Nichols' employment and its termination and then states:


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