CPY Document

Stlt IV SHORT FORM ORDER SUPREME COURT- STATE OF NEW YORK PRESENT:

BON. BRUCE D. ALPERT Justice

TRIL/IS , PART 4 ROBERTP. CONTI

Plaintiff Motion Sequence Nos. 3Index No. 8459/01

Motion Date: March 16 , 2004 -against-

WCM PLUMBING & HEATING and ROY W. SANDERS Defendants.

WCM PLUMBING & HEATING and ROY W. SANDERS Third- Par Plaintiffs

-against-

RGL , INC. , ROTARY INTERNATIONAL DISTRICT 7260 , ROTARY CLUB OF WESTHAMPTON and WINGS OVER LONG ISLAND , INC. Third- Part

Defendants.

The following papers read on these applications for summar judgment: Notices of Motion Notice of Cross-motion Opposing Affnnation

Reply Papers Memoranda of Law

Upon the foregoing papers it is ordered that the motion by third-part Inc. ("

RGL"), the separate motion by third-part

WLI" and the cross-motion by third-par

defendant ,

defendants ,

defendant ,

RGL

Wings over Long Island , Inc.

Rotar International Distrct 7260 and

Rotary Club ofWesthampton ("Rotary Club third- par defendants ), each directed toward the

summary dismissal of the third-part

complaint,

are detennined as hereinafter articulated.

Plaintiff commenced the instant action to recover monetar damages for injuries allegedly sustained while attending an air show at the Francis S. Gabreski Airport on June 6 , 1998. It is alleged that the plaintiff was injured when a van owned and operated by defendants WCM and Sanders , respectively, made contact with and became entangled within a portion of a barrer at

the precise moment the plaintiff was attempting to skirt another section of the subject barer. The barer , covering an expanse of approximately 175 feet , consisted of yellow nylon

rope suspended across six orange and white plastic pylons , each four feet in height.

The plaintiff is asserted to have become ensnared therein and dragged some distance , as a consequence of the defendants ' conduct , and claims to have sustained serious and debilitating injures necessitating surgical intervention on

two separate occasions.

Taking RGL's motion first , the record reflects that RGL is a corporation fonned by Rocco

G. LaPenta and is in the business of coordinating entertainment events. It paricipates

in various

aspects of such events and has significant experience in air shows. The record further reflects that WLI contracted with RGL for LaPenta to serve as Air Boss at the subject air show on the

date of the incident , that WLI had a verbal agreement with WCM , a company owed by Paul Haines , to provide well for water and to satisfy varous other plumbing requirements before and

durng the air show. The record also indicates that WLI was fonned by members of the Rotar

Club third- part David Hil ,

defendants for the sole

purose of sponsoring the subject air show and that Col.

Jr. , served as overall director.

RGL moves for summary judgment on multiple grounds. Its counsel contends that: "The

crowd control barrer erected did not constitute a dangerous or defective condition. "

Counsel

further contends that: "There is no plausible argument by which the actions perfonned by RGL at the subject air show can be deemed to be a proximate cause of the plaintiffs regard , the Court notes that it is undisputed that the barrer

in question

injures. " In this

was erected by Wiliam

Haddock, an RGL employee.

In opposing the applications at bar, counsel for the defendants/third-par plaintiffs raises a two-pronged argument encapsulated within the following assumption: "Assuming, without

admitting, that there was a failure on the part of defendant Sanders (the operator of the van which

breached the rope barrier) to see the rope line , such failure was proximately caused by the improper placement of the rope (line) and the failure of RGL to take any actions to make the rope line visible.

The improper placement theory upon which opposing counsel heavily relies finds no evidentiar support in

the record. While none of the witnesses deposed recalls instrcting Mr.

Haddock, the RGL employee who erected the barrier, to place it at a specific location , the

testimony that it was situated in confonnity with the governing schematic stands uncontroverted. Notably, the defendants/third-par plaintiffs have proffered no expert proof in support of their improper placement theory.

The remaining aspect of opposing counsel' s argument is premised on the assertion that Mr. Haddock failed to make the barrer more visible.

Ignoring the then prevailing weather conditions (clear and suny), the color of the rope (yellow), the number , color and height of the pylons through which the rope was threaded (six

orange and white and four feet , respectively), this aspect of counsel' s argument presupposes the existence of a duty to maximize the visibility of the barer.

This issue raises the spectre of foreseeability and turns on the purpose for which the barrer was

erected.

It is undisputed that the barrer was established for crowd control purposes and served separate members of the public from the aircraft on display. Tellngly, there is no indication that vehicular traffic was expected in the area , as the rope barrer

also appears to

have functioned as a

funnel for pedestran traffc , guiding attendees to the area designated for spectators. It is well established that before a (part)

shown that (such part) 342; see ,

may

be held liable for negligence it must be

owes a duty to (another) (Palsgrafv Long

also , 1 Shearan and Redfield , Negligence (Rev ed),

Is. R. R. Co. , 248 NY 339 , pp 10- 11). " (Pulka v

Edelman , 40 NY2d 781 782) Duty is essentially a legal tenn by which we express our conclusion that there can be liability (see , generally, Green, The Duty Problem in Negligence Cases , 28 Col L Rev 1014). It

tells us whether the risk to which one person exposes another is within the protection of the law. (De Angelis v Lutheran Medical Center, 58 NY2d 1053 , 1055)

The existence and scope of a duty of care is a question of law for the courts entailng consideration of relevant policy factors (see Hamilton v Beretta U. 232). (Church v Callanan Industries , Inc. , 99 NY2d 104 , 110- 111;

New York, 70 NY2d 175 , 187)

A. Corp. , see also ,

the

96 NY2d 222

Eiseman v State of

WLI , as operator of the air show , and , by extension , RGL , Inc. , the entity retained by WLI

to ensure FAA compliance and under whose auspices the subject rope barrer

was erected ,

were

each under a duty to use due care to maintain the venue in a reasonably safe condition so that

those in attendance would not be unnecessarly exposed to danger. (see , Basso v Miler, 40 NY2d 233)

In analyzing questions regarding the scope of an individual actor s duty, the courts look

to whether the relationship of the paries is such as to give rise to a duty of care

(see ,

e. , Waters

v New York City Hous. Auth. , 69 NY2d 225; Pulka v Edelman , supra , at 783), whether the

plaintiff was within the zone of foreseeable har (see , e. , Palsgrafv Long Is. R. R. Co. , supra) and whether the accident was within the reasonably foreseeable risks (see , e. , Danielenko v

Kinney Rent A Car, 57 NY2d 198). " (Di Ponzio v Riordan , 89 NY2d 578 , 583) Thus , recognition of a duty is but one portion of the liability equation.

Whether a breach of duty has occurred *** depends upon whether the resulting injury was a reasonably foreseeable consequence of (a putative tortfeasor s) conduct." (Danielenko v

Kinney Rent A Car, Inc. , 57 NY2d 198 204) oreseeability of risk is an essential element of a negligence cause of action because a person can only be ' negligent' when the event giving rise to the injury could have been

reasonably anticipated--and thus avoided with the exercise of appropriate care (see , Di Ponzio v Riordan , 89 NY2d 578 583). " (Pinero v Rite Aid of New York, Inc. , 294 AD2d 251 252 , affd 99 NY2d 541) An intertined

consideration is the relationship between the risk created by the alleged

tortfeasor and the incident that caused the hann.

As articulated in comment f to section 281 of the Second Restatement of Torts , where the injury was caused by an occurrence that was not part of the risk or contemplated hazard involved in the actor s conduct , the actor bears no culpability.

Since the test of actionable negligence is what a reasonably prudent and careful person

would have done under the circumstances in the discharge of his or her duty to the injured par, a failure to guard against a remote possibility of accident or one which could not , in the exercise

of ordinar care , be foreseen does not constitute negligence... reasonable foresight is required but not prophetic vision. " (79 NY Jur2d , Negligence , ~ 13)

The possibility that a motor vehicle being drven on the runways or taxiways of the

airport would drve into the rope barer at one location and injure a spectator who was lifting the rope at a nearby location at that exact moment must be viewed as a very remote possibility, which a reasonably prudent person could not have anticipated.

While plaintiffs injures may have been an indirect consequence of the failure ofRGL' employee to maximize the visibility of the rope barer , the accident , in light of the pedestran use

to which the area was devoted , was no more than a remote possibility at the time of the barier erection even though the risk may now be readily perceived in hindsight. (see , Di Ponzio v Riordan , supra; Danielenko v Kinney Rent A Car, Inc. , supra)

When analyzed from this perspective , it appears that the intervening act of the defendant

motorist which led to the plaintiffs

injuries

is beyond the limited class of foreseeable hazards

that the operative common law duty imposed upon WLI and its agent , RGL , was designed to prevent.

Accordingly, under the sequence of events and confluence of factors from which the

underlying incident arose , the risk of injur

must be considered to

have been unforeseeable as a

mater oflaw. (see , generally, Davidson v Miele Sanitation Co. NY , Inc. - AD3d -' 774 NYS2d 778; see also , Pinero v Rite Aid of New York, Inc. , supra) Based on the foregoing, RGL' s motion for summar judgment is granted. Third- part

defendant

WLI moves for summary judgment on essentially the same grounds

as RGL. Its application is granted to the extent that the third-part plaintiffs seek to hold it liable for the allegedly negligent placement and/or dangerous or defective condition of the rope barer in question; and for the same reasons. The third-par plaintiffs additionally seek to hold WLI liable for the alleged negligence

of Mr. Sanders in the operation ofWCM' s van based upon the doctrne of respondeat superior. WCM would , by operation oflaw , be vicariously liable for the allegedly negligent operation of its van , as same was operated with its pennission and consent. (see , Vehicle and Traffic Law

~388) This branch ofWLI's motion is , however, denied because the deposition testimony of the witnesses raises triable issues as to whether a master-servant relationship existed between WLI

and Mr. Sanders and , if so , whether Mr. Sanders was acting within the scope of that relationship at the time of the accident.

The Court of Appeals has held that " the doctrne of

respondeat superior

renders a master

vicarously liable for a tort committed by his servant while acting within the scope of his employment." (Riviello v Waldron , 47 NY2d 297 302) The Court of Appeals has also held that: Whether an employment relationship exists necessarily is a question of fact , involving a detennination of ' the existence of a right of control over the agent in respect of the manner in

which his work is to be done ( Matter of Morton , 284 NY 167 , 172; see Matter of Libennan v

Gallman , 41 NY2d 774 , 778). All aspects of the arrangement must be examined to detennine

whether the degree of control and direction reserved to the employer establishes an employment

relationship (Matter of Morton , 284 NY , at p 173 , supra; Matter of Libennan v Gallman , 41 NY2d , at p 778 , supra; cf. Matter of Witten stein v Fugazy Cont. Corp. , 59 AD2d 249 , mot for Iv to app den , 43 NY2d 648). " (Matter of Vila Mara Institute of Music v Ross , 54 NY2d 691 692) In this regard , the Court notes that the status of an unpaid volunteer , such as Mr. Sanders

and that of a servant or employee are not mutually exclusive. (see , Restatement (Second) of

Agency ~225; Morgan v Veterans of Foreign Wars of the United States , 206 m App 3d 569 575 , app den 139 m 2d 598; see also , Anotation , Liability of Charitable Organization Under

Respondeat Superior Doctrne For Tort of Unpaid Volunteer, 82 A. L.R.3d Turning to the cross-motion , the Rotary Club third-part

defendants

1213)

move for summary

judgment on the grounds that they "had absolutely no role with the running, maintenance supervision and/or control of the air show in question. " This Court agrees and holds that the

cross-movants are entitled to summary judgment based upon the uncontroverted deposition testimony of the witnesses.

James N. Hulme , a witness for the Westhampton Rotar Club , testified that the

Westhampton Rotary Club "never themselves put on an air show. " (Transcript , p. 7) Mr. Hulme further testified that: "A corporation was established for the purose of operating that air show with others. " (Transcript , p. 7)

Mr. Hulme additionally testified that the 1997 air show "was done by an organization called MIRW , Inc. " (Transcript , pp. 8- 9) Mr. Hulme (who is an attorney) went on to testify that he fonned Wings Over Long Island , LLC , for the purpose of doing an air show in 1998.

, p.

(Transcript , pp. 10- 11) Mr. Hulme also testified that the Westhampton Rotary Club did not have

any supervisory role with regard to the air show or over WLI. (Transcript

13) Mr. Hulme did

testify that: "The people who were on the board of directors (of WLI) (he) think( s) were rotar

members and the rotary club along with a lot of other organizations provided volunteers for the actual operation of the show. " (Transcript , pp. 12- 13) David Hil , Jr. ,

a witness for WLI , testified at his deposition that he was employed by

WLI as "director of Wings Over Long Island Air Show. " (Transcript , p. 8) Mr. Hil fuher

testified that the volunteers were under the direction ofWLI (Transcript, pp. 12- 13), that Mr. Haines was "responsible for the ground of the air show, placement of the tents and lines , et cetera" (Transcript , p. 14), that Messrs Haines and LaPenta reported to him (Transcript , pp. 15

30), that WLI hired RGL and that he supervised the work of Mr. LaPenta s corporation. (Transcript , pp. 29- 30)

Mr. Sanders testified at his deposition that he volunteered to work at the air show. (Transcript , pp. 12 , 13)

Mr. Haines , the President and owner ofWCM , similarly testified that Mr. Sanders was a

volunteer at the air show , and that he was an unpaid volunteer himself. (Transcript, pp. 14 2627) Mr. Haines

further testified that he was the ground boss for the air show (Transcript, pp. 19

26) and was working together with Mr. LaPenta (i. , the air boss) to set up the air show. (Transcript , p. 18) Mr. Haines additionally testified that he had subcontracted the plumbing work

to T. Holbrook Plumbing. (Transcript , p. 31) Mr. Haines also testified that Mr. Sanders was never employed by WCM. (Transcript , p. 10)

Counsel for the third-par plaintiffs states that Mr. Haines testified "that among the

10-

group of people and organizations responsible for the area where plaintiffs

accident allegedly

occured was the (Westhampton Rotary Club) which' exercised dominion over the entire air

show " (Transcript, p. 83) Counsel argues that: " Clearly Mr. Haines ' testimony that the (Rotary Club third-part

defendants) were

responsible for maintaining and keeping safe that part of the

grounds where plaintiffs accident occured creates a question of fact as to their culpability. (and that) The question of fact is created not only by Mr. Haines ' allegation ' as an individual' , but also given that he was a member of both Rotares and President-elect of the (Westhampton

Rotar Club). "

The Court

disagrees.

The uncontroverted testimony of the witnesses establishes that Mr. Haddock, an RGL employee , erected the rope barrer proof that the Rotary defendants

in question ,

and that RGL was hired by WLI. There is no

as organizations had anything to do with the erection of the

crowd control bariers or the supervision of the work done at the air show by Messrs Haddock LaPenta, Haines or Sanders. Indeed , all the testimony is to the contrar.

Thus ,

there is no theory

of negligence under which the Rotar Club third-par defendants could be held liable for the placement or condition of the rope barrer in question or for the allegedly negligent operation of

the WCM van.

Counsel for the third-part plaintiffs fuhennore argues that: "The testimony of Mr.

LaPenta clearly indicates that he also believed that the (Rotar Club third-part

defendants) were

responsible for the maintenance of all areas behind the show line (all spectator areas). "

Mr.

LaPenta specifically testified that everyhing in front of the show line is the air boss

responsibility and that it was his understanding that everyhing behind the show line was the

sponsor s responsibility, i.

The Rotary Club. " (Transcript , p. 10) Mr. LaPenta

11-

understanding" is not , however, an evidentiar fact. Moreover, Mr. LaPenta s testimony does not indicate that the Rotar

Club

defendants

as organizations had anything to do with erecting the

crowd control barrers or in supervising the work done at the air show. The Court holds that Mr. LaPenta s testimony does not raise any question as to the "potential culpability" of the Rotar

Club third-part

defendants

Lastly, the Court notes that the fact that members of the Westhampton Rotar

Club and

members of other Rotary Clubs served as WLI directors , employees and volunteers does not standing alone , raise any trable issues as to the existence of a master-servant , principal-agent or

employer-employee relationship between Messrs Haddock, LaPenta, Haines or Sanders and the Rotary Club third- part defendants. Without such relationships , there is no basis for imposing

tort liability upon the cross-movants.

Accordingly, the third-part

complaint

is hereby severed and dismissed as to third-

par

defendants , RGL , Inc. , Rotary International District 7260 , and Rotar Club of West hampton

along with all cross- claims asserted against these paries. To the extent the third-part

complaint

expresses a claim against WLI based on the placement or condition of the rope barrer in

question , it is dismissed. That aspect ofWCM' s third-par claim which is directed against WLI

and premised upon principles of vicarous fault and the doctrne of

for the

respondeat superior

alleged tortious conduct of Roy W. Sanders in his capacity as a WLI volunteer is continued.

DATED: May 6 , 2004

ENTERED MAV

"V

NASSAU

COUNTY -e"iKtE