On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9351-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2010 - Decided Before Judges Carchman and Messano.
Plaintiff Thomas DiBartolomeo appeals from the Law Division's grant of summary judgment to defendants New Jersey Sports and Exposition Authority (NJSEA) and Schindler Elevator Company (Schindler). We have considered the arguments raised in light of the record and applicable legal standards. We affirm in part, reverse in part and remand the matter for further proceedings.
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Id. at 230.
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. [Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]
We then decide whether the "motion judge's application of the law was correct." Atl. Mut., supra, 387 N.J. Super. at 231.
We owe no deference to the motion judge's legal conclusions. Ibid.
Plaintiff's amended complaint alleged that he was injured on October 1, 2006, while exiting Meadowlands Stadium after a New York Jets football game when an escalator malfunctioned causing him and other patrons to "trip and fall." Plaintiff claimed that NJSEA as owner of the facility, and Schindler, as the company "responsible for the maintenance of the escalators," were negligent.
The motion record revealed the following salient facts. Plaintiff attended the game with his friend, Bob Krauss. Together they sat in the mezzanine level. The stadium was full, and the game was very close. Most of the patrons waited until the end of the game to exit. Krauss proceeded to the escalator with plaintiff several steps behind him. There were no security guards at the top of the escalator, and Krauss, in his deposition, likened the scene to a "cattle run." Approximately one quarter of the way down, the escalator "bucked" twice and the treads "flattened." Krauss leapt the handrail onto the neighboring escalator and watched plaintiff and the other patrons slide down to the bottom of the escalator where "there were bodies piling up." Krauss described the escalator as being in a "free fall, like a sled."
Plaintiff testified in his deposition that the incident happened within "seconds" after he stepped onto the escalator step that he shared with another person he did not know. After traveling "fifteen [or] twenty feet down," plaintiff heard a "rumbling," the escalator shook, and he was catapulted to the bottom amidst a pile of bodies. Frederick Cristi, a nearby security guard, testified that the escalator was filled with patrons on every step. He heard screams and saw the escalator "free falling."
Sometime after the accident, Thomas Scairpon, a mechanic employed by Schindler, came to the stadium to repair the escalator. NJSEA and Schindler were parties to a "Preventive Maintenance Agreement" whereby Schindler would "conduct evaluations of equipment performance." The evaluations would "be conducted when conditions warrant[ed], and w[ould] take place during a regularly scheduled maintenance visit." However, under the agreement, NJSEA would "retain . . . responsibility and liability as owner . . . . This responsibility include[d] . . . advising, warning, or instructing passengers in the proper use of the equipment."
Scairpon had been called to the site previously on September 14, 2006, because the same escalator had a "step wreck at the top," which often occurred when the steps "turn around" and "pile up." Scairpon removed the escalator from service while he made repairs on that occasion.
Scairpon returned to investigate the malfunction that led to plaintiff's accident. He determined the escalator had "skipped a tooth" causing it "[to] shift to the bottom." He believed that the escalator's "free fall" was "probably [caused] [by] overloading of patrons." Scairpon claimed he was "always concerned" about the behavior of fans at football games. He testified that he spoke to stadium managers "all the time" regarding overloading of the escalators with unruly fans and suggested they take steps to prevent overcrowding of the escalators. Each escalator step was ...