United States District Court, Western District of New York
DECISION AND ORDER
H. KENNETH SCHROEDER, JR. UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #5.
Currently before the Court is defendant’s motion for summary judgment. Dkt. #17. For the following reasons, defendant’s motion is denied.
As recorded by video surveillance, at 7:34 and 30 seconds on the evening of November 18, 2009, the door to elevator #5 at the Seneca Niagara Casino opened and an unidentified woman in a pink shirt enters the elevator, followed by an unidentified man in a white shirt at 7:34 and 32 seconds, followed by Victor Canzanese at 7:34 and 34 seconds. Dkt. #20, ¶ 1 & Dkt. #25. As Angelina Canzanese approached the elevator, the door began to close. Dkt. #25. Mrs. Canzanese’s right arm came into contact with exterior of the elevator hoistway door at 7:34 and 36 seconds, causing her to fall backwards to the floor and break her left hip. Dkt. #17-6, p.10 & Dkt. #25.
The passenger elevators at the Seneca Niagara Casino were manufactured by Otis Elevator and installed in 2005. Dkt. #21, ¶ 10. They are maintained by Otis Elevator Company pursuant to a comprehensive preventive maintenance agreement which specifically includes performing “the adjustments required to maintain the original door opening and closing times, or as otherwise mutually agreed within limits of applicable codes.” Dkt. #27-1, p.2.
Ronald Wheeler, route mechanic for Otis Elevator, testified at deposition that he has maintained the fourteen elevators at the Seneca Niagara Casino since it opened in 2005. Dkt. #18-3, p.6. He is generally on the premises every work day. Dkt. #18-3, pp.7-8. During a general maintenance visit, scheduled approximately once or twice a month, Mr. Wheeler testified that he would ride the elevator and observe door operation and leveling of the elevator. Dkt. #18-3, p.12 & 15. Mr. Wheeler did not recall any repair work on the doors of elevator #5 during the year prior to Mrs. Canzanese’s injury and was unaware of anyone being struck by the elevator doors at the Seneca Niagara Casino prior to Mrs. Canzanese’s injury. Dkt. #18-3, pp.16, 27 & 30. There is no dispute but that there were no prior complaints, code violations or accidents regarding elevator #5. Dkt. #20 & Dkt. #29, ¶¶ 10-14.
Mr. Wheeler testified that when the elevator was installed by Otis Elevator, it was set with a dwell or delay time for the closing of the elevator doors. Dkt. #18-3, p.17. Mr. Wheeler testified that he did not adjust the dwell time nor was he aware of anyone else adjusting the dwell time on the door of elevator time at any time prior to Mrs. Canzanese’s injury. Dkt. #18-3, p.18. Mr. Wheeler also testified that there is a full length beam detector which prevents the elevator door from closing when someone walks through the elevator door opening. Dkt. #18-3, p.20. Specifically, Mr. Wheeler explained that there is a dwell time for the doors to remain open overall and a shortened dwell time for the doors to remain open following the passing of an individual past the sensor. Dkt. #18-3, p.29. Mr. Wheeler checked the sensors in the full length beam detector as part of his general maintenance visits. Dkt. #18-3, p.21.
Mr. Wheeler explained that the sensor for the full length beam detector was mounted on the interior car door. Dkt. #18-3, p.27. Based upon his observation of the video, Mr. Wheeler testified that Mrs. Canzanese did not activate that sensor. Dkt. #18-3, p.27. Instead, Mrs. Canzanese made contact with the exterior hoistway door. Dkt. #18-3, p.27. Mr. Wheeler was not called to inspect the elevator following Mrs. Canzanese’s injury. Dkt. #18-3, p.33.
Plaintiffs commenced this action in the New York State Supreme Court, County of Niagara, on January 18, 2012, seeking damages for personal injuries sustained by Angelina Canzanese and loss of consortium by Victor based on negligence, manufacturing defect, design defect and breach of warranty theories of liability. Dkt. #1, p.7. The action was removed to this Court based upon diversity jurisdiction on February 21, 2012. Dkt. #1.
Robert Offerman, a certified Qualified Elevator Inspector and President of R.A.O. Elevator Inspection, Inc., which provides certified elevator inspections, maintenance evaluations, accident investigations and expert witness services, opines that
Mrs. Canzanese did not have enough time to enter the path and break the beam of the electronic door reopening device which is mounted to the car doors. She was struck and knocked down by the closing hoistway door, causing her injuries.
Dkt. #28, ¶¶ 15 & 19. More specifically, Mr. Offerman opines that
The immediate closing of the car doors and the connected hoist way doors after reaching the fully open position is not in compliance with Federal Standard A117.1-407.3.5 which states “Door Delay. Elevator doors shall remain ...