Dexter “Optical Distraction” Lawsuit Dismissed

In Njewadda v. Showtime Networks, Inc. 2019 NY Slip Op 29031 (NY Sup. Ct. NY Cty. Jan. 29, 2019), the court dismissed plaintiff’s personal injury claim against Showtime, the MTA, and the New York City Transit Authority (NYCTA).

In sum, plaintiff in this case alleges that while in NYC’s Grand Central subway station, after descending stairs by the “S” train shuttle,

she turned around and attempted to ascend the staircase to ascertain his whereabouts, when she saw and was confronted with, under the steps thereto, a semi sub-merged but dramatically oversized photograph, poster and or wrap-around advertisement of the actor Michael C. Hall, who portrays himself as DEXTER, a Showtime series about a serial killer[;] [t]hat the photograph, extending the full length of the steps from the top of the platform to the bottom, depicted a shocking, and menacing face of a Caucasian man (DEXTER) exhibiting an expression of fear or shock and was covered, draped or enwrapped in cellophane/plastic wrap [(the “Dexter Advertisement”)][;] [t]hat the sight of [the] photograph startled, shocked and overwhelmed [p]laintiff causing her to panic and become fearful, which fright, fear and anxiety caused her to panic and lose her balance on the steps resulting in her falling down the steps to the bottom thereof” (Complaint, ¶¶ 28-30).

In dismissing plaintiff’s claims against Showtime and CBS, the court noted, inter alia, the absence of any evidence that they “created or had notice of a dangerous condition given that plaintiff admitted in her deposition testimony that the subject stairway was clean and defect free and it was only her reaction to the ‘scary’ Dexter Advertisement which caused her to fall” and therefore that “the record is devoid of any evidence that defendants created or had notice of a dangerous condition.”

In addition, “[p]laintiff’s argument that it was the placement of the photo by Showtime or CBS which proximately caused plaintiff’s fall is likewise belied by plaintiff’s deposition testimony that her fall was caused by her reaction to the Dexter Advertisement not by its placement under the stairs.”

As to the NYCTA, the court held:

Plaintiff has likewise failed to state a cognizable action for negligence against the NYCTA. As discussed above, it is uncontroverted that there was no defect or dangerous condition on the stairs but rather plaintiff’s fall was caused by her reaction to the Dexter Advertisement under the stairs. In opposition, plaintiff argues that the Dexter Advertisement constituted “an ocular trap or hazard”, “an ocular startle/shock trap and or hazard” , “a malignant [*7]optical distraction”, “an ocular distraction” or “an optical shock trap” to unwary pedestrians. (Plaintiff’s Affirmation in Opposition, ¶¶ 55, 67-68, 77, 96). Plaintiff argues that such ocular trap caused her to become frightened and startled resulting in her fall and injuries.[FN10] Plaintiff’s counsel admitted during oral argument however that plaintiff’s Complaint fails to even allege that the Dexter Advertisement constituted an ocular device which distorted her vision (Tr at 14 l. 16-18).[FN11] Plaintiff’s counsel fails to cite any case supporting plaintiff’ position that a picture or advertisement placed passively under the stairs or in any other location would give rise to a claim for negligence without pleading any affirmative negligence act by defendants.

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