The opinion of the court was delivered by: Denise Cote, District Judge
Plaintiff Pamela Rivera ("Rivera") brings this action to recover damages for injuries sustained by her minor daughter, Khayri Rivera ("Khayri"), on an escalator in New York City's Pennsylvania Station ("Penn Station") maintained by defendant National Passenger Railroad Service ("Amtrak"). Rivera claims that Amtrak was negligent in performing inspections of the escalator. Although she has submitted no direct evidence of Amtrak's negligence, she argues that its negligence can be inferred through the res ipsa loquitur doctrine. Defendant has moved for summary judgment. Because Rivera has not shown that the escalator was in Amtrak's "exclusive control" prior to the accident, the res ipsa loquitur doctrine is not appropriate here, and defendant's motion is granted.
The following facts are taken in the light most favorable to plaintiff. On the morning of May 25, 2003, Rivera and her then-11-year-old daughter Khayri came into Manhattan from their home in New Jersey so that Rivera could attend a meeting. Rivera and Khayri intended to return home that afternoon on a New Jersey Transit train departing from New York City's Pennsylvania Station. To reach the departure platform, which was located below street-level, the Riveras took an escalator identified by the maintenance staff at Penn Station as "7MG." Although it was the Sunday of the long Memorial Day weekend, Rivera testified that the escalator was crowded, with people on every step. Some of these passengers may have been carrying luggage.*fn1
When Khayri reached the end of the escalator, she realized she could not get off, as the left leg of her jeans had been torn and become lodged in the "metal grating" at the bottom of the escalator. As she struggled to get free, Khayri noticed that a large piece of metal was sticking out of the left side of the escalator. It was later identified as being part of the cover plate -- a stainless steel cap made of multiple sections, which runs along the base of each side of the escalator. Rivera said that it appeared as though the bottom portion of this section of the cover plate was still attached to the escalator, while the top portion had become dislodged and had been bent downward so that it was now in the shape of a U.
After a few seconds, Khayri managed to free herself and realized that she had sustained a deep gash in her left leg. She was taken to Bellevue Hospital, where she received 15 stitches. Because of the injury, Khayri missed a week of school and had to walk with a cane for approximately one month. She is also planning to consult with plastic surgeons about remedies for the scars that have developed. Khayri's daily activities are not impaired as a result of the incident.
Amtrak is the owner of Penn Station. The Long Island Rail Road ("LIRR") is the tenant of the portion of the station in which escalator 7MG is located, but Amtrak employees do the maintenance work.*fn2 Like all escalators and elevators in Penn Station, escalator 7MG is inspected on a once-weekly basis*fn3 by a team that includes a foreman, an electrician, and machinists.
This weekly inspection is primarily visual. When inspecting the cover plates, the team typically looks to see if any section is not properly secured. Charles Schrader ("Schrader"), the assistant chief engineer for LIRR who oversees maintenance for Penn Station, testified that a visual inspection would reveal any loosening of the screws or rivets that hold the plates in place. Schrader stated that even if there were a problem with a screw or rivet, however, a plate is unlikely to come loose because it is also held in place by the adjacent pieces of the cap. The last inspection of escalator 7MG prior to the accident was performed two days earlier, on May 23,*fn4 and the notes from that inspection do not reflect any problems with the cover plates.*fn5
After the incident, escalator 7MG was out of service until sometime in July, while defendant waited for a replacement cover plate to arrive. Amtrak held the damaged cap for approximately six months and then threw it away. Rivera then filed this action on December 14, 2004, making a claim of common law negligence against Amtrak. She served Amtrak on February 8, 2005, nearly two years after the accident.
Summary judgment may not be granted unless all of the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed. R. Civ. P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of the movant's pleadings. Rule 56(e), Fed. R. Civ. P.; accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).
The legal standards applicable to Rivera's claim are essentially uncontested. It is well established that, under New York law, a "defendant stands liable in negligence only for breach of a duty of care owed to the plaintiff." Sanchez v. State of New York, 99 N.Y.2d 247, 252 (2002). The owner of commercial property is not "an insurer of the safety of its patrons," Gilson v. Metropolitan Opera, 5 N.Y.3d 574, 577 (2005) (citation omitted), and its duty is simply to "exercise reasonable care in maintaining [the] property in a reasonably safe condition under the circumstances." Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 636 (2004). A defendant cannot breach the "reasonable care" standard without "actual or constructive notice of the condition [that caused plaintiff's injury] and a reasonable time to correct or warn about its existence." Mercer v. City of New York, 88 N.Y.2d 955, 956 (1996). Plaintiff does not clearly articulate how she believes Amtrak was negligent. She appears to suggest, however, that it was not "reasonable under the circumstances of a heavily traveled holiday weekend" for Amtrak to have failed to inspect the escalator for two days prior to the incident. Therefore, she argues, Amtrak had "constructive notice of the dangerous condition of the protruding metal cap." Rivera has not submitted any evidence that would allow a jury to conclude that weekly inspections of heavily used escalators are unreasonable. She has not suggested, much less shown, that it is standard practice to make more frequent inspections; nor has she provided evidence that incidents like this one are likely to occur when there are seven-day gaps between inspections. In contrast, Schrader testified that in the ten years he had worked as assistant chief engineer, he had never seen an accident involving the metal caps.*fn6 Plaintiff's unsupported assertion that Amtrak's duty of care required more frequent inspections therefore cannot defeat summary judgment.
This does not, however, end the inquiry, since New York recognizes that "[o]ccasionally ... a plaintiff to whom the defendant owes a duty of care is not in a position to prove directly what actually happened or that a specific act of the defendant was negligent." Morejon v. Rais Construction Co., No. 61, 2006 N.Y. LEXIS 1256, at *1 (N.Y. May 9, 2006). In such cases, the doctrine of res ipsa loquitur allows the fact-finder to infer that the defendant was negligent based on ...