Marjorie
Vargas, Plaintiff,
against
Castle Golf Amusements, Inc.,
Defendant.
|
3392/2011
Robert J. McDonald, J.
The following papers numbered 1 to 18 were read on this motion by defendant,
Castle Golf Amusements, Inc. for an order pursuant to CPLR 3212(b) granting defendant
summary judgment and dismissing the plaintiff's complaint on the issue of liability; or in
the alternative for an order pursuant to CPLR 3126 striking the complaint and dismissing
the plaintiff's action on the ground that the plaintiff has willfully failed to comply with a
prior order of this court concerning discovery:
Papers Numbered
Notice of Motion-Affidavits-Exhibits.................1 - 7Affirmation in
Opposition-Affidavits-Exhibits........8 - 15
Reply Affirmation...................................16 -
18________________________________________________________________
In this negligence action, plaintiff, Marjorie Vargas, seeks to recover damages for
personal injuries she sustained as a result of an accident that occurred on August 18,
2008, wherein it is alleged that a go-kart came into contact with the plaintiff's left foot at
defendant's premises located at 1878 Middle Country Road, Centereach, Suffolk County,
New York. Plaintiff alleges that an unoccupied go-kart located in an area [*2]of the go-kart ride where go-karts are parked for loading
and unloading of passengers, suddenly moved, striking the plaintiff's left foot and
causing a serious laceration.
Plaintiff commenced an action against the defendant by filing a summons
and complaint on February 14, 2011. In her complaint, she alleges that Castle Golf
Amusements, Inc., owned a go-kart ride, a go-kart track and go-karts within the
amusement and theme park, and that the defendant negligently permitted the go-kart ride
and track to remain in a dangerous, unsafe and defective condition as a result of which
the plaintiff was caused to sustain serious personal injuries. Issue was joined by service
of defendant Castle Golf Amusements, Inc.'s verified answer dated March 14, 2012. A
preliminary conference order was signed by this court on April 25, 2012 and a
compliance conference order was signed by Justice Ritholtz on September 10, 2012. A
Note of issue was filed by the plaintiff on January 30, 2013. The Note of Issue was
vacated in the Trial Scheduling Part on April 3, 2014 due to outstanding discovery.
In her verified bill of particulars, the plaintiff alleges that on August 18,
2008, the plaintiff sustained an injury in the go-kart ride area of the amusement park
when her foot was struck by a go-kart due to the negligence of the defendant in allowing
the premises and go-karts to remain in a dangerous and unsafe condition. Plaintiff alleges
that the defendants failed to take suitable precautions for the safety and passage of
persons lawfully on the premises, in failing to remedy a dangerous condition, in failing to
give the plaintiff adequate warnings of an unsafe condition, in failing to make reasonable
inspections of the go-karts and go-kart ride to discover unsafe conditions and in failing to
remove the defective go-kart that struck the plaintiff prior to the happening of the subject
accident. It is also alleged that the defendant was negligent in failing to maintain barriers
or to warn individuals not to go into and through the area of the go-kart ride where
go-karts are parked. Plaintiff also alleges defendant was negligent in failing to have
personnel on site with requisite skills to properly supervise and oversee the go-kart ride.
As a result of the accident, the plaintiff is alleged to have sustained a laceration to the left
foot and big toe requiring 13 stitches, scarring, and traumatic nerve injury. Plaintiff
claims that the defendant had actual and constructive notice of the dangerous
condition.
Defendant now moves for an order granting summary judgment on the issue
of liability asserting that it could not be liable for the injuries sustained by the plaintiff
because the plaintiff [*3]cannot establish the manner in
which the incident occurred or that any failure on the part of the defendant was a
proximate cause of the plaintiff's injury.
In support of the motion, the defendant submits an affirmation from counsel,
Brian Brown, Esq; a copy of the pleadings; a copy of the plaintiff's verified bill of
particulars; copies of the examinations before trial of the plaintiff, Marjorie Vargas, and
defendant Castle Golf Amusements by Patricia Rubino; as well as a copy of the Castle
Golf accident report; photographs of certain areas of the scene; and a copy of the prior
order of this court directing the plaintiff to provide defendant with a copy of the video
taken at the plaintiff's wedding reception on March 23, 2012.
At her examination before trial, taken on February 5, 2013, the plaintiff,
Marjorie Espinal, previously known as Marjorie Vargas, age 30, testified that on August
18, 2008, she took her two younger brothers, Anthony and Milton, ages 9 and 13, to
Castle Golf, a small amusement park with go-karts located in Centereach, Long Island.
She described the track area as round, with an underpass and the cars parked on one side.
She stated that there was a fence that separated people waiting from those using the
go-karts. She gave her brothers the tickets to use the go-karts. There was one attendant
present who she described as a 14 - 16 year old male. The attendant strapped the boys
into separate cars. Plaintiff testified that she stood outside the fence and watched her
brothers drive the go-karts around the track. At the time, they were the only two people
utilizing the go-karts. The Plaintiff testified that she was taking pictures through the
fence and the attendant suggested that she put her purse down on one of the parked
go-karts to make it easier to take pictures. She leaned over the fence and put her purse
down on the back of one of the parked go-karts.
After 15 minutes, the brothers drove the go-karts to the parked car area
where the attendant was located and brought their cars to a complete stop. She and her
brothers began walking back through the park to her car at which time she remembered
that she left her purse on the back of a go-kart. At that point the plaintiff returned to the
area to get her purse while the boys kept walking towards the exit. When she arrived
back in the area she did not see her purse where she had left it. She observed the
attendant standing next to the parked go-karts and asked where her purse was. He saw
that the purse had fallen on the track where the go-karts were parked. She asked if she
could go in and get it and he said she could. The go-karts were parked in a line [*4]and her purse was between two karts. While picking up her
purse, as well as the items that had fallen out, one of the go-karts moved and the metal
part of the go-kart struck her left foot. She stated that she did not know what caused the
go-kart to move. She stated that the go-kart moved slowly and only moved a couple of
inches. She was struck on top of her foot adjacent to her big toe. She stated that the
attendant was standing in the area right next to her when the go-kart moved. When the
attendant saw the cut he went to get assistance. An ambulance took her from the scene to
the emergency room at Stony Brook Hospital. At the emergency room she received 13
stitches and a tetanus shot.
Patricia Rubino, testified at an examination before trial on May 31, 2013.
She stated that her husband, Lance Rubino, owned Castle Golf Amusements at the time
of the accident. He purchased the business in 2005 and sold it to Tiki Action Park in
March 2009. She and her husband personally operated the business. Her duties included
making sure the go-karts were in order and making sure the attendants were doing their
jobs correctly. She worked at Castle 50 hours per week. She described the go-kart area as
a figure eight track surrounded by a fence. She stated that the patrons waiting to go on
the ride waited outside the fence and entered when all the go-karts were stopped and
parked.
On the date of the accident, the attendant for the go-carts was Christopher
Barrett who was age 17 at the time. She stated that he underwent in-house training prior
to operating the go-kart ride which included instruction on how to operate the go-karts,
opening and closing procedures and safety checks. She stated that the attendant had been
supervised prior to operating the ride on his own. The attendants were stationed by the
entrance to the ride. She doesn't know if there was a video surveillance recording in
existence of the go-kart area from the date of the accident. She stated that the go-karts
were powered by gas and maintained by the attendants who would check the engines, oil,
seat belts and frames. Maintenance was conducted on a daily basis. She stated that there
were procedures to check the go-karts before the park opened. She testified that she did
not know when the go-kart that was involved in the accident was last inspected.
She also testified that when the five minute ride ended, each driver would
drive the go-kart to the area where the parked cars were. When parking the go-karts, the
go-kart driver could make contact with the rear of a previously parked vehicle. The
go-karts contained written warnings signs on the rear stating "no bumping allowed." On
the date of the accident she was on the premises and was notified over the radio by
Christopher Barrett [*5]that an accident had occurred. He
told her that the patron was requesting an ambulance. She proceeded to the area and
spoke to the plaintiff and called an ambulance. She stated that she prepared an accident
report that day based upon what she was told by the plaintiff and by Barrett and sent it to
her insurance company. Barrett told her that the plaintiff and the two boys had driven
go-karts. When the plaintiff drove her go-kart to the parking area Barrett told her not to
get out but she got out of the go-kart anyway. When she got out of the go-kart she put her
pocketbook on the back of the go-kart in front of hers. After she exited, she started to go
back to the parking area to get her pocketbook and he told her not to. He stated that she
did not listen to him and proceeded into the go-kart area while her brothers were driving
their go-karts into the parking area. He stated that as she was retrieving the pocketbook,
her brother hit into the go-kart, which she had previously parked, the front of which ran
into her foot. Ms. Rubino stated that she wrapped and cleaned the laceration. She also
spoke to the plaintiff at the scene. Ms. Rubino testified that the plaintiff told her that she
got out of the go-kart on her own without anyone telling her to and put her pocketbook
on the back of a go-kart. When the second go-kart came in it crashed into the back and
the pocketbook fell. She bent down to retrieve it and when the third go-kart came in, it
crashed into the back of that one and hit into the second one causing her foot to be stuck
between two go-karts.
Defendant contends that the motion for summary judgment must be granted
because the plaintiff, at her deposition, could not establish the manner in which the
incident occurred or establish any negligence on the part of the defendants. Counsel
states that plaintiff testified that when she was injured the go-karts were parked, no one
was driving a go-cart, the attendant did not move a go-kart and the attendant was next to
her and behind her not touching a go-kart. Although it is clear that a go-kart moved and
struck her foot, counsel clams that plaintiff could not provide an act or failure to act on
the part of the defendant that caused the go-kart to move that a was approximate cause of
the accident. Counsel also submits photographs which he asserts depicts the distance
from the fence to the parked go-karts and contends that the fence is too far from the track
for the plaintiff to have reached over and placed her pocketbook on the go-kart. In
addition, he claims that her version of the accident is in direct contrast to the alleged
version of the accident she gave to the Ms. Rubino in which she stated that she had
actually driven a go-kart, that her brother had hit a parked go-kart and pushed it into her
foot while she was retrieving her pocketbook. Counsel claims that pursuant to Ms.
Rubino's version the plaintiff was herself operating a go-kart and therefore could not
have been [*6]standing outside the fence taking pictures
while her brothers were on the ride.
Defendant also moves to dismiss the plaintiff's complaint for failure to
provide a copy of the videotape of her wedding reception which had been directed by
this court in its order dated May 6, 2013. Counsel claims that five months has elapsed
and the plaintiff has still refused to provide a copy of the videotape despite being served
with a copy of the court order in May 2013 and despite being sent several follow-up
reminder letters. Defendant claims that based upon the plaintiff's wilful failure to comply
with the court order, it would be appropriate to dismiss the plaintiff's complaint.
In opposition to the motion, plaintiff's counsel, Costas M. Eliades Esq.,
contends that the motion to dismiss plaintiff's complaint for failure to provide the
wedding video is now academic because on January 30, 2014, the plaintiff sent a flash
drive depicting the video of plaintiff's wedding reception to the defendant.
Plaintiff also asserts that summary judgment in favor of the defendant is not
warranted because there are material issues of fact as to the negligence of the defendant
and proximate cause of the accident which preclude granting summary judgment.
Counsel states that as there are stark contrasts in the parties versions of how the plaintiff
came to be in the area where the go-karts were parked, the defendant is not entitled to
summary judgment. Further, counsel submits that the unsigned and unsworn incident
report, which defendant annexed to the motion, cannot be considered by the court as it is
not in admissible form. Counsel also submits that non-party, Christopher Barrett, was
subpoenaed for a deposition but failed to appear for same. Counsel claims that the
plaintiff's testimony shows that the defendant's actions were a proximate cause of the
accident because the attendant directed the plaintiff to leave her purse on the go-kart in
the parking area and later directed her to retrieve the purse from an area in which the
go-karts were parked and where a parked go-kart could be put in motion. Moreover, it is
claimed that the defendant was negligent in the manner in which the go-kart ride was
operated, supervised and managed.
In reply, the defendant contends that the plaintiff has failed to show the
existence of a duty on the part of the defendant to the plaintiff, a breach of that duty, and
that the breach was a proximate cause of the accident. The defendant contends that
without stating how the go-karts moved, there is no proof that the defendant was
negligent in any manner or that it [*7]breached a duty to
the plaintiff.
Upon review of the defendant's motion for summary judgment, the plaintiff's
opposition and the defendant's reply thereto, this court finds as follows:
The proponent of a summary judgment motion must tender evidentiary proof
in admissible form eliminating any material issues of fact from the case. The failure to
make that showing requires the denial of the motion regardless of the sufficiency of the
opposing papers (see Mastrangelo v Manning, 17 AD3d 326 [2nd Dept 2005]).
If the proponent succeeds, the burden shifts to the party opposing the motion, who then
must show the existence of material issues of fact by producing evidentiary proof in
admissible form, in support of his position (see Zuckerman v. City of New York,
49 NY2d 557[1980]).
As stated by the defendant, to hold a defendant liable in negligence, a
plaintiff must demonstrate a duty owed by the defendant to the plaintiff, a breach of that
duty, and that the breach constituted a proximate cause of the injury (see Mitchell v
Icolari, 108 AD3d 600 [2d Dept. 2013]; Kraut v City of New York, 85 AD3d 979 [2d Dept. 2011];
Ruiz v Griffin, 71 AD3d
1112 [2d Dept. 2010]; Ingrassia v Lividikos, 54 AD3d 721 [2nd Dept. 2008]). In
making such a determination, courts look to whether the relationship of the parties is
such as to give rise to a duty of care, whether the plaintiff was within the zone of
foreseeable harm, and whether the accident was reasonably foreseeable (see Dance Magic, Inc. v Pike Realty,
Inc., 85 AD3d 1083 [2d Dept. 2011]; Lynfatt v. Escobar, 71 AD3d 743 [2nd Dept. 2010]).
Further, the courts have held that liability for an injury sustained on an amusement or
carnival ride is premised upon control, supervision, and or management of the injury
causing ride (see Lopez v Allied
Amusement Shows, Inc., 83 AD3d 519 [1st Dept. 2011]).
Here, the evidence showed that the amusement park owners and the
attendants employed by the owners, were the persons who controlled, managed, and
supervised the go-kart ride in question. As such they owed a duty of care to the patrons
of the park and the users of the ride to ensure their safety from unreasonable risks of
harm. The pre-trial testimony raises several questions of fact as to whether the attendant,
Mr. Barrett, failed to properly supervise the go-kart ride and whether that failure to
supervise was a proximate cause of the plaintiff's injuries. The plaintiff sufficiently set
forth the cause of the accident having testified that it was Barrett who was overseeing the
ride who told her to place her pocketbook inside the fence on the parked [*8]vehicle and when he saw her purse on the floor near a
parked go-kart told her it was alright if she entered the area to retrieve it. It was
reasonably foreseeable that the plaintiff could be injured in the area where the go-karts
were parked as the unoccupied go-karts were easily moved by contact from another
vehicle.
The testimony shows that the defendants were aware that the go-karts could
move if pushed by another go-kart that was entering the parking area. Therefore, there is
a question of fact as to whether the attendant failed to properly supervise the ride by
allowing the plaintiff into the parked car area knowing that she was retrieving a
pocketbook that had fallen between two parked cars and also having knowledge that the
cars could move if struck by another car coming into the parking area. In addition, there
is a question of fact as to whether the cars had been properly inspected and maintained so
as to prevent an occurrence such as the one involved here. Further, Ms. Rubino provided
a conflicting version of the accident in which the plaintiff herself was riding a go-kart,
got out of the go-kart before being told it was safe to do so, and picked up the
pocketbook after specifically being told by the attendant not to pick it up.Thus, this Court
finds that summary judgment is not warranted as there are questions of fact as to whether
the go-kart track was being negligently supervised, whether the negligent supervision
was a proximate cause of the accident, whether the attendant provided appropriate
warnings to the plaintiff and whether the plaintiff was comparatively negligent for failing
to heed the attendant's warnings.
Accordingly, as triable questions exist as to whether the defendant exercised
due care and proper supervision with respect to the operation of the go-kart ride and, if
not, whether such lack of care was a proximate cause of the accident (see Gorham v Methun, 57 AD3d
480 [2d Dept. 2008]), it is hereby,
ORDERED, that the motion by defendant, Castle Golf Amusements for
summary judgment dismissing the complaint of Marjorie Vargas is denied, and it
further,
ORDERED that he motion to dismiss the plaintiff's complaint for failure to
provide a copy of the plaintiff's wedding reception video is denied as academic. Further,
there was no showing by the defendant that the late delivery of the video was wilful or
contumacious nor did they demonstrate that they would be substantially prejudiced by the
late disclosure (see Iscowitz
[*9]v County of Suffolk, 54 AD3d 725 [2d
Dept. 2008]).
Dated: June 9, 2014
Long Island City, NY_______________________
ROBERT J. MCDONALDJ.S.C.