The opinion of the court was delivered by: RICHARD HOLWELL, District Judge
MEMORANDUM OPINION AND ORDER
This personal injury action is brought by plaintiff Lisa
DeMarco against individual defendant Timothy Ouellete, and
corporate defendants The Culture Club NYC, Inc. (the "Culture
Club, Inc.") and The Culture Club NYC, LLC (the "Culture Club").
Plaintiff has voluntarily dismissed*fn1 all claims against
Ouellete and the Culture Club, Inc., leaving only defendant
Culture Club, which owns a nightclub by the same name on Varick
Street in New York City. While patronizing that nightclub on the
evening of June 20-21, 2003, plaintiff suffered a fractured ankle
when an unidentified male patron fell on her. Plaintiff now
claims that the Culture Club is responsible for her injury
because it (i) negligently failed to remove the unidentified male
from its premises prior to the accident; (ii) operated an
inherently dangerous "tiered" dance floor; (iii) negligently
allowed the club to become overcrowded; and (iv) violated New
York's Dram Shop Act. Defendant Culture Club has moved for summary judgment on all claims. For
the reasons set forth below, that motion is granted.
The following facts are taken from the parties' Rule 56.1
statements, affidavits and depositions. Unless otherwise noted,
they are not disputed. On the evening of June 20, 2003, plaintiff
and a friend, Gina Giarratana, arrived at the Culture Club
between 9 and 11 o'clock (Deposition of Lisa DeMarco, p. 22
("DeMarco Dep.")). Both had been to the Club on several previous
occasions. As the evening wore on, the two danced and socialized,
consuming approximately two drinks each between the time they
arrived and 2 a.m. the next morning. There is no evidence that
plaintiff was intoxicated when she arrived at the Club, and
plaintiff testified that she remained sober throughout the
evening, most of which she spent with Giarratana on the Club's
"tiered" dance floor. (DeMarco Dep., p. 41).
The "tiered" nature of the dance floor can be described as
follows. There is a "bottom" level, which is flush with the main
floor of the club, but readily distinguishable by embedded
lights. (DeMarco Dep., pp. 45-46). This bottom level is roughly
square, is constructed of wood, and can accommodate approximately
40-45 dancers. (DeMarco Dep., pp. 28-32, 46; October 12, 2003
Dep. of Luis Vega, p. 18 ("Vega Dep.")). Sitting on top of the
bottom level, and entirely contained within it, is a "second"
level. (Id.). Relative to the bottom level, this second level
is significantly smaller in square footage it can accommodate
between 15 and 25 people and is reached by climbing a step of
approximately one foot. (Vega Dep., p. 17). Like the bottom
level, the second level is "lit up", and is otherwise
distinguished by a colored band running its perimeter. (DeMarco Dep., p. 46; Vega Dep., p. 17). The "third" or "top"
level sits on top of the second level, and is similarly
constructed, with a light-colored band running its perimeter.
(Id.). It has the smallest square footage of the three levels,
and can hold approximately 6 people. (Id.).
Plaintiff's injury occurred on the second level of the dance
floor in the following manner. According to plaintiff, she and
Giarratana were dancing just after 2 a.m. when an unidentified
male patron bumped into her, causing her to lose her balance and
fall straight back. (DeMarco Dep., p. 55). Plaintiff testified
that when she landed on the ground, her legs were beneath her as
if she was "kneel[ing] down on the floor," with the top of her
feet facing down. (Id., pp. 55-59). In a sort of "domino"
reaction, the unidentified patron also fell down, landing on top
of plaintiff with her left leg still trapped under her.
Plaintiff's ankle fractured under the added weight. (Id.).
Realizing that she had been seriously injured, plaintiff yelled
for the man to get off her, which he did without delay. (Id.).
There is no dispute that plaintiff's injury was accidental.
Plaintiff remembered that between six and eight people fell at
the same time she did, including Giarratana. (Id., p. 61).
Although plaintiff considered the dance floor to be crowded at
the time she fell, so much so that "you [couldn't] see where the
[tiers] end[ed]", (Id., p. 64), plaintiff didn't see anyone
push, shove, or attack the man who fell on her. (Id., pp. 58,
65). Neither had there been any previous contact that evening
between plaintiff and the male patron; plaintiff did not talk to
him prior to the accident, and had no recollection of how long he
had been at the club that night. (Id., p. 63). In an affidavit signed on December 16, 2004, Giarratana
provided a somewhat different perspective on the accident.
("First Giarratana Aff."). She agreed with plaintiff that "[t]he
. . . Club seemed overly crowded" at the time of the accident,
but added that there "seemed to be a lack of control by the
bouncers and security, especially control over [the] crowd from
which the [unidentified] male patron . . . fell and crushed
[plaintiff's] left ankle." (First Giarratana Aff., ¶ 5). This
observation is subject to some dispute. A member of the Club's
security staff, Luis Vega, remembered that the crowd was "sparse"
at the time of the accident, at least as compared to a "crowded"
night, when there could be between 700 and 800 people at the Club
and as many as 18 members of the security staff working. (Vega
Dep., pp. 13, 16, 21, 27). Although there is no way to tell
exactly how many people were in the Club at the time of the
accident, a second member of the Club's security staff, Judith
Caserta, supported Vega's opinion, explaining during her
deposition that the crowd was "movable" (apparently an indication
of its controllable, and therefore small, size), and also
remembering that she was able to reach plaintiff "immediately"
after the accident. (October 22, 2004 Dep. of Judith Caserta, p.
31 ("Caserta Dep.")). As explained more fully, infra, the Court
need not resolve this issue.
In any case, Giarratana's first affidavit offers an additional
explanation for the accident, noting that it occurred after "a
shoving match, or fight, going on immediately before the
[unidentified] male patron" fell on plaintiff. (First Giarratana
Aff., ¶ 5).*fn2 Giarratana expanded on this observation in a
second affidavit signed on January 27, 2005 ("Second Giarratana
Aff."), where she notes that she "remember[ed] seeing [the male patron] prior to the injury . . . at the bar having alcoholic
drinks." (Second Giarratana Aff., ¶ 5(c)). It was also her
opinion that "[t]his man and his friends were evidently
intoxicated on the dance floor in proximity to . . . plaintiff",
a claim she supports by noting that the man had a "disheveled
appearance" and was behaving "abhorrent[ly]" at the time of the
accident. (Id.). According to Ms. Giarratana, despite this
behavior, "[n]o action was taken by Club employees against this
male patron prior to the incident." (Id., ¶ 5(d)). This
evidently surprised her, although there is no evidence that
either she or plaintiff complained of roughhousing, or visibly
intoxicated patrons on the night of the incident. (DeMarco Dep.,
Whatever its exact cause, after the accident plaintiff was
escorted outside by Giarratana and two employees of the Club,
Luis Vega*fn3 and Judith Caserta.*fn4 On the night in
question Vega was working the Club's main floor, where he was
able observe most of the dance floor, including the site of the
accident. (Vega Dep., p. 10). Although he was unable to describe
plaintiff's fall in any detail, he was one of the first Club
employees on the scene, and remembered helping another Club
employee, Judith Caserta, "pick? up" plaintiff after the fall
and escort her out of the club. (Id., pp. 10, 20; Caserta Dep.,
p. 21). Like Vega, Caserta was a member of the Club's security
staff, where she worked as a liaison for female patrons in need of assistance, whether because
they were intoxicated or otherwise. (Id., pp. 8-9). It was in
this role that she assisted plaintiff outside.*fn5
Once Vega and Caserta had removed plaintiff from the Club,
Caserta asked her to sign an "incident report". The incident
report contains a description of the accident, as well as
observations of plaintiff's subsequent behavior. According to
Caserta, Giarratana provided the accident description, (Caserta
Dep., p. 27), which can be found under the heading "Claimant's
description of incident in detail", and notes that "[claimant
was] pushed by other customers and slipped on [the] dance floor
causing her ankle to get hurt." (Incident Report, attached as Ex.
F to Cresci Verification). A similarly succinct statement appears
just above, under the heading "Nature of Injury", where the
report notes that plaintiff was "knocked over by other customers
[and] hurt [her] ankle." (Id.). Although plaintiff signed just
below both descriptions, at her deposition she disputed the
proposition that she "slipped". (DeMarco Dep., p. 75).
The report also contains a section for staff comments. Under
the heading "Employee's Description of Incident in Detail",
Caserta wrote that "while interviewing [plaintiff] she appeared
to be extremely intoxicated and slur[red] [her] words." (Incident
Report, attached as Ex. F to Cresci Verification). Vega's
comments support this observation, and also allude to a second
reason plaintiff fell, namely, "because she was wearing open
heel[ed] shoes." (Id.). As noted, supra, plaintiff vehemently
denies that she was intoxicated at the time of her fall; she also
testified that her shoes had nothing to do with the accident. (DeMarco Dep, pp. 75-78). By contrast, both
Vega and Caserta reaffirmed their comments at their depositions.
Vega testified that when he helped plaintiff outside, he
remembered her to be "slurring out words and walking off balance,
not walking normal." (Vega Dep., p. 10). Caserta testified that,
although plaintiff was intoxicated on the night of the accident,
she was not removed from the Club because "it is very hard to
pinpoint every intoxicated" customer, and in any case plaintiff
was not "badly stumbling" or a "troublemaker". (Caserta Dep., p.
Whatever the exact nature of plaintiff's mental state at the
time of the accident and the Court need not resolve that
question it is clear that approximately thirty minutes after
plaintiff was escorted out of the Club, Giarratana drove her to a
hospital in Bayonne, New Jersey. (DeMarco Dep., p. 79).*fn6
Hospital records show that plaintiff checked in to the emergency
room at 3:07 a.m. (First Giarratana Aff., ¶ 6; Emergency
Department Form, attached as Ex. G to Cresci Verification). They
also indicate that an x-ray was taken at about the same time, and
that plaintiff was diagnosed with an oblique fracture to her left
anklebone. After being told that the injury would require
surgery, plaintiff was admitted to the hospital. (Radiology
Report, attached as Ex. G to Cresci Verification). Surgery was
performed the next afternoon, during which pins and plates were
placed on the ankle. (DeMarco Dep., p. 81).
Plaintiff now brings this lawsuit to recover for her injuries. II. Discussion
Summary judgment is appropriate when "there is no genuine issue
as to any material fact and . . . the moving party is entitled to
a judgment as a matter of law." Fed.R.Civ.P. 56(c). Similarly,
summary judgment should be granted if, "after adequate time for
discovery," the non-moving party "fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). In deciding whether a genuine issue of a material fact
exists, a Court must "examine the evidence in the light most
favorable to the party opposing ...