13-1081-cv
Rodriguez v. Athenium House Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 4th day of February, two thousand fourteen.
PRESENT: RALPH K. WINTER,
GUIDO CALABRESI,
REENA RAGGI,
Circuit Judges.
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DOMINGO RODRIGUEZ, JENNIFER RODRIGUEZ,
Plaintiffs-Appellants,
v. No. 13-1081-cv
ATHENIUM HOUSE CORP., ANDREWS BUILDING
CORPORATION,
Defendants-Appellees.
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APPEARING FOR APPELLANTS: DAVID JAROSLAWICZ, Jaroslawicz & Jaros,
LLC, New York, New York.
APPEARING FOR APPELLEES: LAUREN B. BRISTOL (Scott L. Haworth,
Barry L. Gerstman, Haworth, Coleman &
Gerstman, LLC, New York, New York, on the
brief), Kerley, Walsh, Matera & Cinquemani,
P.C., Seaford, New York.
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Appeal from a judgment of the United States District Court for the Southern
District of New York (Laura Taylor Swain, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on March 5, 2013, is VACATED AND
REMANDED.
Plaintiffs Domingo Rodriguez, a former U.S. Postal worker, and his wife Jennifer
Rodriguez appeal from an award of summary judgment in favor of defendants Athenium
House Corporation and Andrews Building Corporation on Domingo Rodriguez‘s
negligence claims for damages allegedly sustained when a bulletin board hanging in the
lobby of defendants‘ apartment building fell and struck him on the head and back.1 We
review an award of summary judgment de novo, resolving all ambiguities and drawing all
inferences in favor of the nonmovant, and we will affirm only if the record reveals no
genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986); Nagle v. Marron, 663 F.3d 100, 104–05 (2d Cir.
2011). Rodriguez contends that the district court erred in failing to recognize issues of
material fact pertaining to defendants‘ (1) direct or vicarious liability for his injuries
under the doctrine of res ipsa loquitur, and (2) failure to provide Rodriguez with a safe
place to work in violation of N.Y. Labor Law § 200. We assume the parties‘ familiarity
1
Because Jennifer Rodriguez‘s claim for loss of consortium is entirely derivative of her
husband‘s negligence claim, our resolution of this appeal as to Domingo Rodriguez
applies equally to Jennifer Rodriguez. Accordingly, all further references to ―Rodriguez‖
in this order allude to Domingo Rodriguez.
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with the underlying facts and the record of prior proceedings, which we reference only as
necessary to explain our decision to vacate and remand.
1. Res Ipsa Loquitur
Rodriguez argues that, because the district court concluded that a reasonable jury
could find that negligent installation of the bulletin board caused his injuries, and because
there is an issue of fact as to whether defendants directly removed and reinstalled the
bulletin board or authorized third parties to do so, he was entitled to present his case to
the jury under the theory of res ipsa loquitur. We agree.
Res ipsa loquitur is an evidentiary doctrine ―that allows ‗an inference of
negligence [to] be drawn solely from the happening of the accident upon the theory that
certain occurrences contain within themselves a sufficient basis for an inference of
negligence.‘‖ County of Erie v. Colgan Air, Inc., 711 F.3d 147, 149 n.1 (2d Cir. 2013)
(quoting Dermatossian v. N.Y.C. Transit Auth., 67 N.Y.2d 219, 226, 501 N.Y.S.2d 784
(1986) (internal quotations omitted)). To hold a defendant liable under the doctrine,
however, there must be some evidence that the instrumentality of injury—here, the
bulletin board—was within the defendants‘ ―exclusive control,‖ so as to ―eliminate
within reason the possibility that the event was caused by someone other than the
defendant.‖ St. Paul Fire & Marine Ins. Co. v. City of New York, 907 F.2d 299, 302 (2d
Cir. 1990). ―[E]xclusive control is not a rigid concept; rather, it is ‗subordinated to its
general purpose, that of indicating that it probably was the defendant's negligence which
caused the accident.‘‖ Stone v. Courtyard Mgmt. Corp., 353 F.3d 155, 159 (2d Cir.
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2003) (quoting Corcoran v. Banner Super Mkt., Inc., 19 N.Y.2d 425, 432, 280 N.Y.S.2d
385 (1967) (emphasis in original)). Rodriguez argues that a reasonable jury could find
that defendants had exclusive control over the means for removing the bulletin board
from the wall and, therefore, to the extent his injuries were caused by the negligent re-
installation of the bulletin board during the summer of 2010, defendants were directly
liable. On an independent review of the record, we conclude that Rodriguez raised a
genuine issue of material fact from which a reasonable jury could conclude that
defendants had the sort of exclusive control over the bulletin board to support liability
under the doctrine of res ipsa loquitur.
Although defendants identify a number of third parties with access to the lobby
containing the bulletin board, in light of the district court‘s holding that a reasonable juror
could conclude that Rodriguez‘s injury resulted from negligent installation, only those
third parties capable of accessing the bulletin board for this purpose are relevant to the res
ipsa loquitur inquiry. See Pavon v. Rudin, 254 A.D.2d 143, 146, 679 N.Y.S.2d 27, 30
(1st Dep‘t 1998) (observing that courts ―apply[] res ipsa loquitur to accidents involving
items exposed to significant public traffic, where the specific mechanism that
malfunctioned was not handled by the general public‖) (collecting cases). Here, the only
third parties with access to the bulletin board for this purpose and the potential means for
removing the bulletin board during the summer of 2010 were third party independent
contractors and subcontractors working on two projects in the building. Rodriguez does
not dispute that these workmen had access to the bulletin board. Indeed, his own expert
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conceded the likelihood that the ―bulletin board was taken off the wall . . . because of the
workmen traffic hauling building material through the lobby . . . .‖ J.A. 825–26.
Rodriguez nevertheless contends that defendants‘ ―exclusive control‖ of the bulletin
board can be inferred from the fact that removal of the bulletin board from the wall
required opening the locked Plexiglass cover and taking out the screws, and defendants
alone possessed the required key. This theory is supported by record photographs, and
defendants‘ employee Howard Zien‘s admission that there was a lock to open the case for
which he had the only key. Defendants‘ alternative theory that the bulletin board was
forcibly removed from the wall by the third party workmen without defendants‘
knowledge or authorization presents a question of fact for the jury.
―To avoid summary judgment, [Rodriguez] was obligated simply to establish a
reasonable probability that the accident was caused by [defendants‘] negligence.‖
Williams v. KFC Nat‘l Mgmt. Co., 391 F.3d 411, 420 (2d Cir. 2004). The evidence
supporting Rodriguez‘s theory, when viewed in the light most favorable to him, satisfies
this standard in that a reasonable jury could infer that, as between defendants‘ employees
and third party workmen, ―the greater probability‖ of responsibility for the alleged
negligence ―lies at defendants‘ door.‖ Stone v. Courtyard Mgmt. Co., 353 F.3d at 158
(internal quotation marks omitted); see id. at 160 (―It is impossible for the plaintiff to say
which of these two defendants was at fault in this case (if either), but that is precisely
why New York law allows plaintiff to employ the res ipsa loquitur inference against each
defendant and let them explain what happened.‖).
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Vicarious liability warrants no different conclusion. Specifically, because Avent
saw the bulletin board on the floor in the lobby, and defendants‘ employee responsible
for overseeing the elevator construction work Kathleen Seltzer testified to being in the
building the ―whole time‖ that the work was being done, J.A. 435, a reasonable jury
could conclude that defendants‘ were aware that the bulletin board had been removed
and, therefore, had a duty to ensure its non-negligent replacement. Under such
circumstances, defendants and the third party workmen were arguably ―burdened with
supervision of the [bulletin board‘s installation] and a res ipsa loquitur inference could
have been drawn against either or both.‖ Stone v. Courtyard Mgmt. Co., 353 F.3d at 160
(internal quotation marks omitted).
2. Labor Law
Rodriguez contends that there is a question of fact as to whether defendants
violated N.Y. Labor Law § 200 by failing to provide him with a safe place to work. We
agree with defendants that Rodriguez forfeited this claim by failing to raise it in his
complaint or in opposition to the summary judgment motion before the district court, and
therefore ―[i]n the absence of manifest injustice,‖ we decline to hear such an assertion.
Robinson v. Gov‘t of Malaysia, 269 F.3d 133, 146 (2d Cir. 2011) (internal quotation
marks omitted).
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We have considered the parties‘ remaining arguments on appeal and conclude that
they are without merit. Accordingly, the judgment of the district court is VACATED
AND REMANDED.
FOR THE COURT:
CATHERINE O=HAGAN WOLFE, Clerk of Court
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