Did Homeowner Have Actual/Constructive Notice of Defect?
Joan Maria Vaz brought a personal injury action arising from an accident at the home of Giusseppina Zimmitti.
Zimmitti moved for summary judgment dismissing Vaz’ complaint.
The accident took place when the dining room chair that Vaz was seated in broke and collapsed under her, resulting in injuries. She commenced an action and asserted in her complaint that Zimmitti was negligent as she failed to use the degree of care which a prudent person would in like circumstances, despite having had actual and/or constructive notice of the dangerous and defective condition of the chair.
Zimmitti moved to dismiss the complaint and asserted that she did not have actual or constructive notice that the chair was defective. And supported her motion with the pleadings, Vaz’ bill of particulars, the deposition transcripts of herself and Vaz, an expert affidavit and report from a “wood scientist” with photos and her own affidavit.
In her affidavit, which was prepared and signed in Italian, then translated for the court by a translator, Zimmitti averred that she lives in her two family home with her son, Nicholas, who resides in the upper apartment, and that Vaz was hired by her to be a home health aide for her husband, who passed away, two months before the accident. She stated that “[a]fter my husband died, [Vaz] continued assisting me[.] While in my home, [Vaz] had full access to the dining room table and chairs”. Zimmitti explained that she never sat in the chair that collapsed, as she preferred to sit in the chairs that did not have arms, so she had no actual notice of any problem with the chair and that, before the accident, neither Vaz nor anyone else “expressed concern to me about any of the dining room chairs and never informed me that any of the dining room chairs were wobbly or appeared unsafe”.
Zimmitti’s depostion was conducted with an Italian interpreter. She testified that Vaz was her home health aide on the date of the accident, and worked in her home five days a week. She was shown a photo of the chair and testified that she had purchased the dining room set with six chairs approximately fifty-five years prior. After Vaz’ accident, Zimmitti had three of the six chairs moved to the basement and had not repaired them. She said the other two “were not strong enough” so they werere in the basement along with the chair which broke.
Vaz’ testified at her deposition that she was born in 1947 in Jamaica, and came to the United States in 1979. She testified that she was employed by an agency which provided hospice services and was assigned to work at Zimmitti’s home, working two to four hours a day, five days a week, to care for the Zimmitti’s husband. After the husband passed away, which she believed was in September of 2017, Vaz continued to come to care for Zimmitti for almost another year. She was paid in cash the entire time. She could not remember Zimmitti’s name,or the name of the agency. On the date of the accident, she was seventy-one years old. She was on Medicare, and she was receiving Social Security and a pension from her years working at Victory Memorial Hospital. Zav retired in 2013.
Zav testified that some of the dining room chairs were “shaky” and “wobbly” but she was not clear from her confusing answers if she was referring to the one with arms that she sat in on the date of her accident or the other chair with arms. Vaz testified that there were six chairs, but only two of them had arms. Zimmittti was at the dining room table and witnessed her accident, as did other guests who were present. Vaz described the accident as follows: “the legs broke and the chair fell and I was on the floor”.
Zimmitti’s expert provided an affidavit, a report with photos, and a curriculum vitae. He described himself as a “wood scientist.” He inspected the collapsed chair at Zimmittti’s home almost three years after the accident and prepared a report. His business is named Wood Science Consulting Inc., and is based in Duchess County, New York. He concluded that Zimmitti could not have had actual or constructive notice of any defect in the chair, as “a visual inspection of the joint prior to the failure would not have indicated that the joint or rail was compromised or wobbly”, but the chair had a “slope of grain” which indicated to him a reduced bending strength, which contributed to the chair failing, and that the Zav weighed 220 pounds and had leaned in the chair while sitting in it, “thus resulting in the failure”.
In opposition, Vaz provided an affirmation of counsel and an affidavit and expert report from an architect. The expert also inspected the chair and stated that “It is evident, based upon my investigation, that the property owner failed to inspect the subject chair for signs of structural fatigue prior to allowing Ms. Vaz access to it. I observed during my inspection that the front rail split where the left front leg had been secured. I also observed an excessive amount of adhesive which had been applied in the joint connection of the subject leg and the adjacent rails, indicative of a prior repair having been made… it is evident that, at some point in time prior to Ms. Vaz’ accident, the leg had been reattached to the chair… Without proper repair, the chair, in its structurally compromised condition, clearly posed a risk to the safety of any individual allowed use of it.”
There have been a number of cases which involve a chair that collapsed while being sat upon. Sometimes, a products liability action is commenced against the manufacturer. Common law negligence is also an available cause of action. Where the chair was in a commercial establishment, the courts have generally indicated that the analysis is whether the business owner or government entity owner had actual or constructive notice of a defective condition regarding the chair. In a recent Court of Appeals case, however, the court opined that the business must “establish prima facie entitlement to judgment as a matter of law concerning the reasonableness of
inspection practices”. But when the cases involve a non-commercial location, such as here, the analysis is whether the homeowner had actual or constructive notice of a defective condition regarding the chair.
The Court found that Zimmitti failed to make a prima facie case for summary judgment. Zimmitti offered the deposition testimony of both Vaz and herself, which demonstrated conflicting factual information about the chair. Zav claimed the chair was shaky and wobbly but Zimmitti claimed it was not shaky or wobbly and Zimmitti’s “wood scientist” could not change the outcome. Zimmitti’s inclusion of Vaz’ testimony which prevented the Court from concluding that Zimmitti made a prima facie case for dismissal. The outcome would be no different if Zimmitti’s expert was an engineer instead of a “wood scientist”. Vaz had been working in the home for at least six months or more before the accident, cooking and cleaning, and was familiar with the furniture.
However, had Zimmitti made a prima facie case by omitting the Vaz transcript and her expert’s affidavit and report, the submissions would have created a “battle of the experts” and raised a triable issue of fact.
Parentetically, it was noted by the Court that res ipsa loquitur, which was discussed in the papers, was inapplicable. For a plaintiff to rely on the doctrine of res ipsa loquitur, the accident must (1) be of a kind that ordinarily does not occur in the absence of negligence, (2) be caused by an agency or instrumentality within the exclusive control of the defendant, and (3) not have been due to any voluntary action or contribution on the part of the plaintiff. But Vaz could not circumvent the notice requirement by relying on res ipsa loquitur—a doctrine which had no application under the circumstances presented here.