By Jeff Birren, Senior Writer
In 2014, Christian Acevedo went to Madison Square Garden with the intent of watching the U.S. national men’s basketball team play the Dominican Republic. According to Acevedo, after he entered, he was told to go straight forward. He did so and walked into a panel of glass. Acevedo sued Madison Square Garden, [T]he United States of America Basketball, (“USA Basketball”), and Turner Construction Company (“Turner”). Recently, USA Basketball won a motion for summary judgment (Acevedo v. Madison Sq. Garden Co, Supreme Court of New York, N.Y. County, Case No. 157997/16 (“Acevedo”) at 5, (1-7-21)).
Acevedo intended to see the USA team play a warmup match prior to the FIBA World Championships. Acevedo testified that after he was “wanded” by security, he was told to “go straight forward.” He saw “an open area” and continued straight. After two steps, he hit “his forehead” on a high, fixed glass panel (Id. at 2). Two years later, Acevedo sued Madison Square Garden Company, MSG Holdings, LP., Cablevision (collectively “MSG”), USA Basketball, and Turner. Turner had recently done some work on the Garden. The 18-page verified complaint had four causes of action, including one brought by Judith Tejeda, his wife. He claimed that the defendants were “negligent by failing to mark the transparent glass panel” and that they had violated several New York City building codes (Id.).
The defendants filed verified answers and MSG and USA Basketball filed crossclaims against each other. In 2017 Turner filed a motion for summary judgment and USA Basketball filed a motion to dismiss the complaint, or “alternatively, for summary judgment dismissing the complaint and any crossclaims” (Acevedo, “Mot. Seq. No. 001 and 002, (12-6-17)). Turner “established that while it performed work on the premises, it did not design or install the glass or hire the security guards who directed” Acevedo “into the glass panel” (Id.). Acevedo did not oppose the motion and Turner was granted summary judgment (Id. at 3).
USA Basketball’s motion to dismiss was “denied outright” because it “failed to demonstrate” that plaintiffs’ “should be dismissed for failure to state a claim” (Id. at 2). The Court also denied the summary judgment motion, because it was “premature” (Id.). USA Basketball claimed that it had not hired the security guards, but the Court ruled that the parties were “entitled to discovery to ascertain, what role, if any, USA Basketball had in marking the panel, setting up the subject area where the panel was located, and security/check-in procedures, among other issues.” Moreover, it had “not demonstrated” that the “accident was caused solely by the MSG defendant’s negligence” (Id.). Discovery ensued. During that process, Acevedo submitted a “Bill of Particulars” wherein he claimed “a loss of earnings in the sum of $14,000 for the approximate two (2) week (sic) he was unable to attend to his employment and usual activities” and for hospital expenses of “approximately $5,000” as a result of the accident (Acevedo, Doc. No. 77, at 2, (10-22-18)).
In July 2020, USA Basketball again moved for summary judgment on the “complaint and all crossclaims with costs and disbursements against plaintiff” (Acevedo at 1). Acevedo opposed the motion. MSG “partially” opposed the “motion to the extent that” it sought summary judgment on their crossclaims. MSG also moved for summary judgment on Acevedo’s claims, USA Basketball’s crossclaims, and sought a declaration “that USA Basketball is required to defend and indemnify MSG and that USA Basketball breached its contract to procure insurance” (Id. at 1/2). MSG claimed that the accident “was not caused by a dangerous or defective condition in the glass panel which plaintiff struck” (Id. at 2). Acevedo opposed the motion, and USA Basketball “partially” opposed “the request for relief against it” (Id.).
USA Basketball asserted that it was MSG’s responsibility to admit and check patrons for security purposes. USA Basketball did not employ the relevant personnel, nor were any USA Basketball employees near the area of the accident. Finally, “the alleged dangerous and defective condition … could not have been reasonably foreseeable to warrant USA Basketball to be liable to the plaintiff or MSG” (Id. at 3).
In December 2020 the, Court “adjourned” the motions until January 2021 so the parties could “submit a copy of the video of the underlying accident that was annexed to the parties’ papers via Dropbox or another cloud sharing service. A link to the video should be emailed” to the Court’s “Principal Attorney” (Interim Order (12-24-20)).
The Court’s “Discussion”
The Court began by stating the relevant standard. The party seeking summary judgment “has the initial burden of setting forth evidentiary facts to prove a prima facie case that would entitle it to judgment in its favor without the need for a trial” (Acevedo at 3). The party opposing the motion must then produce “admissible” evidence “to raise a triable issue of fact.” If the party moving for summary judgment fails to make out its prima facie case, the motion will be denied “regardless of the sufficiency of the opposing papers.” Summary judgment is “a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue” (Id.).
MSG’s Motion as to Acevedo
The Court noted that a “property owner has a duty to keep the premises in a reasonably safe condition so as to prevent anybody lawfully on the premises from becoming injured.” The plaintiff must “demonstrate” that the premises were not reasonably safe; that the defendant either created the dangerous condition or had actual or constructive notice of it; and that this negligence “in allowing the unsafe conditions to exist was a substantial factor in causing” the injury (Id. at 3/4).
The “expert” affidavit submitted by USA Basketball and relied on by MSG, “only creates a triable issue of fact as to whether the applicable building codes required” marking the glass panel that Acevedo struck. Furthermore, even if the codes allowed it, a “reasonable fact finder” could conclude that the having such a panel “where open doors were located without any further markings or warnings constituted a dangerous condition.” The motion was denied (Id. at 4).
USA Basketball’s Motion as to Acevedo
USA Basketball was a “licensee” and “there is no case law defining” a licensee’s duty of care that would support Acevedo’s claims. If a “tenant did not have a duty to mark the glass” then “a mere licensee certainly cannot be said to have such a duty.” Moreover, the injury did not occur within the areas that “USA Basketball accepted the privilege to use on an ‘exclusive’ basis.” Using areas such as the “back-house” did “not transform USA Basketball into a possessor of the premises. Therefore, USA Basketball cannot be held liable to plaintiffs under ordinary premises liability principles” (Id.).
Whether a defendant “owes a duty to care to a plaintiff is a question of law to be determined by the court” and “contractual obligations do not give rise to a duty of care in favor of third-parties.” USA Basketball “did not hire any security guards and otherwise had nothing to do with the area where plaintiff’s accident occurred.” USA Basketball was thus “entitled to summary judgment dismissing plaintiffs’ claims against it” (Id.).
USA Basketball and MSG’s Dueling Motions
USA Basketball and MSG filed competing motions for contractual indemnification. MSG also filed a motion for USA Basketball’s alleged failure to procure insurance as required by their contract. Contractual indemnification is permitted but New York law “prohibits and renders unenforceable” any agreement that would “hold harmless and indemnify” a “landowner against its own negligence” (Id.).
The contract between USA Basketball and MSG provided that USA Basketball would be entitled to contractual indemnification from “all liabilities, losses, damages, judgments settlement expenses, claims costs and expenses whatsoever” related to a “areas utilized by guests attending the Events including … all areas and facilities utilized for ingress and egress of guests” except for claims based on willful misconduct (Id. at 4/5). There “is no dispute that plaintiff was injured at an area of ingress to the premises.” There were “issues of fact as to MSG’s security procedures and whether the glass panel met statutory requirements and/or was dangerous” so that “MSG has not demonstrated freedom from negligence and is therefore not entitled to contractual indemnification” (Id. at 5). MSG asserted that it had not supplied an affidavit “from the security guard present at the time of plaintiff’s accident because” one was never demanded. This assertion “fails to recognize that as the proponent of a motion for summary judgment, it is MSG’s burden to establish prima facie entitlement to such relief.” The Court denied both summary judgment motions on the contractual indemnification claims (Id.).
The final issue was MSG’s claim that USA Basketball “breached its duty to procure insurance.” However, USA Basketball “has provided a certificate of liability insurance” that contained “a $1 million personal injury policy” with an excess liability of $5 million that “was in effect” at the time. “Since there is no dispute that USA Basketball obtained the insurance it was required to under the License Agreement” the Court granted summary judgment to USA Basketball on this claim and denied MSG’s competing motion (Id.).
The Court’s “Conclusion”
The Court “ordered” that Acevedo’s claims against USA Basketball and MSG’s crossclaim against it for breach of contract “are severed and dismissed,” but “the balance of USA Basketball’s motion as well as MSG’s motions are denied.” The Court stated that any “requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly denied and this constitutes the Decision and Order of the court” (Id.).
Acevedo claimed special damages of less than $20,000 so it seems strange that the case has continued for over six years without being settled. At some point it became clear that Turner was not responsible for the glass panel. Some of Turner’s summary judgment expenses could have gone to Acevedo to settle their part of the case. MSG and USA Basketball’s insurance companies have spent untold thousands of dollars fighting Acevedo, and each other, when that money could also have been used for settlement. Acevedo’s demands may have precluded that, but it is exactly for such cases that court-sponsored mandatory settlement conferences were created. This case should be resolved, and, if there truly is a glass panel that can hit patrons in the head as they enter, it should be long gone by now.