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An opera house does not have a general duty to protect its patrons from being bumped into and injured by opera-goers seeking their seats in the dark, the Appellate Division, First Department, held Monday. “When a disabled opera patron, experiencing physical difficulty in maneuvering into his seat in the darkened opera house, falls into another patron, knocking her down and causing injuries, regardless of how unfortunate the accident and its consequences may be, the injured audience member does not have a viable negligence claim against the opera house, in the absence of some breach of duty not present here,” Justice David B. Saxe wrote for a 3-2 majority in Gilson v. Metropolitan Opera, 4346. The panel overturned the Bronx Supreme Court’s denial of the Metropolitan Opera’s motion to dismiss. The woman who was hurt, Estelle Gilson, 75, and a friend attended a Dec. 3, 2001, performance of Strauss’ “Arabella” at the Metropolitan Opera at Lincoln Center. Gilson sat in an aisle seat in Row E of the dress circle. Donald Taitt and his wife, Caroline, sat in the middle of the row. Mr. Taitt suffered from Parkinson’s disease, according to Gilson’s attorney, Timothy F.X. Jones of the Manhattan-based John C. Dearie & Associates. During the first intermission, all the parties left their seats. Gilson and her friend returned when the theater lights flickered. The Taitts returned about 10 minutes into the second act. Gilson stepped into the aisle and down one stair to give them room to enter. “Mr. Taitt, who seemed to Gilson to be rigid, unsteady, and unable to move his arms, lost his balance and fell into plaintiff, who fell down the stairs, striking various portions of her body on the balustrade or the wall at the bottom of the stairs,” Saxe wrote. “She tumbled feet over head,” her attorney, Jones, said in an interview. “She fell almost 12 rows.” Gilson broke her right wrist, the bridge of her nose and the bone under her right eye and tore her rotator cuff, according to Jones. Gilson and her husband initiated an action against the Metropolitan Opera, as well as against Lincoln Center, which owns the opera house, and Taitt. The Gilsons argued that the Metropolitan Opera and its employees were negligent in allowing Taitt to return to his seat “without an escort or a flashlight to light his way, when the aisle lighting was too dim,” as summarized by Saxe. They said the opera house violated its own “Performance Staff Rules and Guidelines” as well as various sections of the city Building Code. The trial court dismissed the claim against Lincoln Center on the ground that the performance center is an out-of-possession lessor. It denied the Metropolitan Opera’s motion for summary judgment, saying questions of fact remained, “including, but not limited to whether defendant maintained the stair aisles in a dangerous manner thereby causing a dangerous condition which caused plaintiff’s accident.” The appeals court reversed, holding that even under the facts alleged, no basis existed for a viable negligence claim. Saxe noted that the plaintiffs did not claim a breach of any common-law duty owed by the opera house. “That the house lights were down at the time does not create any such duty,” Saxe wrote. “Nor does the existence of a ‘house rule’ precluding patrons from being seated after the theater is darkened.” To impose a duty on the Metropolitan Opera based on its own rules “would, in effect, be punishing it for attempting to ensure an exceptional level of courtesy to the audience and the performers,” he wrote. He added that such a decision “could also lead to a new and heightened standard of care for all theatrical venues in which the audience members sometimes take their seats after the house lights are turned down, such as movie theaters, concert halls, and other arenas.” The panel found the claims regarding Building Code insufficient to withstand the summary judgment motion. Though the plaintiffs presented evidence that the lighting in the opera house may not have met certain city codes, the panel ruled that, among other things, Taitt’s loss of balance and subsequent fall did “not appear to have been related to an inability to see his seat, but rather, to his difficulty in ambulating there.” Justices Joseph P. Sullivan and Eugene Nardelli joined Saxe in the majority. DISSENT Justice John W. Sweeny Jr. wrote a dissent joined by Justice Betty Weinberg Ellerin. He said material factual issues still existed that should have gone to trial. “Our colleagues in the majority have set forth many of the issues; however, they then proceeded to resolve them,” he wrote. “Similarly, the conclusion by the majority that there is no obligation for an usher to escort a patron to his seat … places an undue emphasis on just one point a jury may consider in determining negligence and proximate cause,” Sweeny added. “Under the unique facts of this case, whether an usher should have escorted the patron, once the decision to let him in the theater was made, is a question of fact, not law.” Jones said he intended to appeal the ruling. The Gilsons, however, are no longer pursuing the action against the Taitts, he said. The Metropolitan Opera’s attorney, Patrick M. Murphy, a partner at the Mineola, N.Y.-based McCabe, Collins, McGeough & Fowler, said he was pleased with the decision. “It seems that they’ve accepted and credited the arguments we’ve made, and we’re happy with it,” he said.

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