The decision in this case is unlikely to be used as precedent in future cases, except to distinguish it.
Although Rizzuto did present expert evidence that it is unsafe to use nothing more than glue to adhere 20-pound granite tiles to an elevator wall above peoples heads, it was presented only in a response to the defendants reply brief, and the court thus refused to consider it.
In a case on similar or identical facts, however, a timely presented report would obviously present a factual issue sufficient not only to survive summary judgment, but arguably entitle the plaintiff to summary judgment.
Even if not, just having survived the summary judgment stage should be all that is necessary to obtain a verdict from any sensible jury, the facts largely speaking for themselves.
Thus, solid preparation should enable a plaintiff to distinguish this case, even on identical facts.
Certain portions of the courts decision are more troublesome, however. The court acknowledged that, in Barry, the vinyl nosings were installed to fix a potentially dangerous condition, while in Rizzutos case, the granite tiles were installed as part of a general renovation unconnected with any specific danger.
Nevertheless, the court dubiously and unsupportably concluded, "this superficial distinction is immaterial." However, none of the justifications that the Supreme Court gave in Barry for finding the defects there not to be structural apply in the case at bar.
In Barry, the court stated, "To conclude [that nosings added to the original stairway are a structural defect] would be to accept … circular reasoning, effectively transmogrify[ing] all maintenance and repair defects into structural defects."
The same cannot be said of installing 20-pound granite tiles to an elevator wall above peoples heads. Installing the vinyl nosings in Barry was routine maintenance and repair. Installing granite tiles is structural renovation.
The court in Barry also stated, "the accident was attributable to the failure to safely repair or maintain the steps rather than a defect in the original structural design or construction of the steps."
Again, the same cannot be said in the case at bar; the accident was attributable to the decision to use nothing more than glue to affix the tiles, rather than something more permanent.
The court in Rizzutos case also disingenuously stated, "both Barry and this case involve a renovation," as if jerryrigging an old carpet is really comparable to an actual renovation that involves installing granite tiles.
Thus, for this decision not to be wholly contrary to law, the courts statement that the distinction is "superficial" must be read in the context of its refusal to consider the expert report that the original installation of the tiles was unsafe. To distinguish the decision in this case, a plaintiff should not need to do any more than timely obtain an expert report stating the obvious – that the installation of tiles over peoples heads with nothing more than adhesive is a structural defect.
– David Ziemer
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David Ziemer can be reached by email.