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Jets fan gets day in court over escalator malfunction

New York Jets Head Coach Rex Ryan would probably tell Thomas DiBartolomeo to just suck it up. But DiBartolomeo is going to sue instead. 

October 1, 2006, was a black day for Jets fans. Peyton Manning engineered a last-minute drive in Meadowlands Stadium to put the Indianapolis Colts ahead 31-28. 

Jets fans were left in stunned silence when a last-gasp kickoff return by the Jets came up short at the Colts’ 27 yard line after a wild flurry of laterals and fumbles

Because everybody stayed until the last second of the game, the ensuing mass exodus of 77,190 distraught Jets fans from Meadowlands Stadium had all the earmarks of a cattle stampede.

DiBartolomeo and his friend, Bob Krauss, were at the game, sitting in the stadium’s mezzanine level.

As DiBartolomeo and Krauss attempted to leave the stadium, the press of the crowd made things dicey at the various choke points, including the escalators.

Disaster struck when DiBartolomeo and Krauss were on an escalator. According to Krauss, when they were about a quarter of the way down, the packed escalator “bucked” twice and the treads “flattened.” The quick-thinking Krauss leapt the handrail onto the neighboring escalator. 

But DiBartolomeo wasn’t so fortunate, joining other Jets fans as they slid down to the bottom of the escalator into a pileup of bodies.

The escalator was maintained by Schindler Elevator.

A Schindler mechanic who investigated the accident concluded that the escalator had “skipped a tooth,” causing a “free fall” to the bottom. He believed that the malfunction was probably the result of overloading due to the press of the crowd, with each escalator step rated to bear only 300 pounds.

DiBartolomeo allegedly suffered a hip injury and hernia as a result of the accident, so he filed a negligence suit against the operator of the stadium, the New Jersey Sports and Exposition Authority (NJSEA), as well as Schindler Elevator.

The trial judge dismissed the lawsuit.

Wednesday, a New Jersey appeals court agreed that Schindler Elevator had no liability in the matter, looking to the terms of its service agreement with the NJSEA.

“Under the service agreement, NJSEA retained ownership of the escalator as well as the duty to ‘advis[e], warn[], or instruct[] passengers in the proper use of the equipment.’ Schindler never assumed such a duty. Thus, even if a factfinder were to believe [that Schindler] never warned [the NJSEA] about overloading until after plaintiff’s incident — Schindler breached no duty and cannot be liable,” the court said.

But the unlucky Jets fan had better luck in getting his lawsuit against the NJSEA reinstated.

The NJSEA argued that it was entitled to governmental immunity because DiBartolomeo injuries were the result of the Jets fan’s “misuse” of the escalator.

Naturally, this fails the “straight face” test and the court of appeals didn’t buy it, particularly in light of evidence that there had been other accidents involving the stadium’s escalators.

“In this case, providing plaintiff with all favorable evidence and inferences, he demonstrated that when the escalator was being used in a normal and foreseeable manner, it posed a danger to the general public exiting a game,” the court explained. “Plaintiff’s conduct was not unreasonable; it was consistent with the intended use of the escalator. The dangerous condition was NJSEA’s policy of operating escalators that were rated for only 300 pounds per step even though it was foreseeable and likely that greater loads would routinely be applied. (DiBartolomeo v. New Jersey Sports and Exposition Authority)

So it looks as though DiBartolomeo will have a jury hear his case against the New Jersey Sports and Exposition Authority. 

Let’s hope for DiBartolomeo’s sake that there aren’t too many Giants fans on that panel.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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