New York State Court of Claims

New York State Court of Claims

BRADT v. THE STATE OF NEW YORK, #2000-004-004, Claim No. 97717


Synopsis


Step and fall off higher than normal curb. State found 75% responsible, Claimant found 25% responsible.

Case Information

UID:
2000-004-004
Claimant(s):
DORIS E. BRADT
Claimant short name:
BRADT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the title of the Claim to delete a named defendant over which the Court has no direct jurisdiction.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97717
Motion number(s):

Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
MARTIN, HARDING AND MAZZOTTIBY: Victor L. Mazzotti, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER,
Attorney General
BY: JAMES E. SHOEMAKER Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 5, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The trial of this Claim was bifurcated by Order of the Court. This Decision addresses the issue of liability.


Claimant seeks damages for injuries allegedly sustained on April 12, 1997 on the campus of the State University of New York at Cobleskill (Cobleskill). Claimant fell shortly after exiting Bouck Hall on the Cobleskill campus.


Although the subject of age was not addressed at the trial, based on the Court's observation of the Claimant during the course of the trial, the Court finds that Claimant was born on June 29, 1926, give or take a few days, and at the time of the incident which gives rise to this Claim was just short of 71 years of age.[1]


The facts, in the main, are not in controversy.


Claimant arrived at Bouck Hall around 7:00 p.m. in a van driven by her son-in-law, Mark Gauthier, accompanied by her daughter and the children of her son-in-law and daughter. She entered Bouck Hall and attended a fund raising basketball tournament, which involved the players negotiating the basketball court in wheelchairs. Gauthier was actively involved in the project and transported wheelchairs to the game in his van, which he unloaded from the van prior to entering Bouck Hall to take part in the game. The game ended sometime between 9:00 p.m. and 9:30 p.m. Gauthier left Bouck Hall prior to the Claimant to load wheelchairs into the van. The Court finds that Claimant left Bouck Hall through the same door by which she gained entrance. After exiting the building, Claimant walked directly ahead on a sidewalk leading from the building to a campus road which ran parallel to the face of Bouck Hall. (
see, Cl. Ex. 1, 2, 4 and 5) Gauthier's van was parked on the other side of this campus road in close proximity thereto. (see, Cl. Ex. 3 and 12) It was dark and, according to Gauthier, "raining", according to Claimant "misty".[2] The concrete sidewalk which ran from the entrance to Bouck Hall to the campus roadway was separated from the roadway by a granite curb which, the Court estimates, was approximately four inches wide. (see, Cl. Ex. 5 and 10) The top of the curb and the concrete sidewalk were at the same elevation, which was some 10½ to 11 inches above the surface of the campus roadway. (see, Cl. Ex. 7 and 8)

There were no light poles or light fixtures along the sidewalk which the Claimant traversed, at any point between the door to Bouck Hall and the curb. There was another entrance to Bouck Hall to the left of the entrance used by the Claimant, as one faced the building, (
see, Cl. Ex. 4 and 5) which would be to the north of the entrance used by the Claimant. (see, Cl. Ex. 12) That entrance was serviced by a lantern type light on a pole placed near a short stairway leading to and from the other entrance.

Asked on direct what she did after the basketball game, Claimant testified that she was "walking out to go to the van, I know there was a curb and when I went to step down, I fell". Claimant also testified on direct that she stepped off the curb with her right foot.


On cross-examination, Claimant testified that she could not remember whether there were any people in front of her as she walked out of Bouck Hall but that "there might have been a few". At her prior examination before trial, she testified that she "was following some other people out of the door to the car". At that same examination before trial, Claimant was asked "Who were you with when you were coming out the door?" and she responded, "I can't remember who I was with. I was coming out, I think I was with my granddaughters. I know I was with my granddaughters because they hollered that I fell". Asked at the trial if she had a recollection of walking out of the gym she responded, "Yes, I can remember but, some of the things, my granddaughters was in the car, in the van". On each side of the sidewalk leading from the doorway to the curb, close to the curb, there were inlaid bricks. (
see, Cl. Ex. 1 and 2) Claimant was asked if she saw those bricks as she came out and she responded, "It was too dark to see". At her examination before trial, asked what happened, Claimant testified "I came out and I went to step, and when I went to step, I went right over". Also her examination before trial Claimant was asked if, when she came out of the building, she could see the sidewalk and she responded, "No, it was dark". She was then asked, "You didn't know you were on the sidewalk?" and she responded, "I know I was on something, but I didn't, I couldn't see nothing, it was so dark there you couldn't see nothing". Asked further at her examination before trial "Did you see the roadway before you got to it?", she responded, "Well, I looked down, I seen it, but like I said, I fell right off in there, my right foot, that's when I usually go with my right". Asked at the trial if she recalled seeing the curb, she responded, "Yes". She had been previously asked at her examination before trial if she had seen the curb and she responded, "No". Finally, on cross-examination, Claimant was asked if she recalled whether the "area of the curb" was wet and she responded, "a little".

Claimant's expert, a professional engineer and land surveyor, visited the scene of Claimant's accident on June 19, 1998 and found the conditions on that date the same as shown in Claimant's Exhibit 1, a photograph taken shortly after the accident. He measured a 10½ inch difference in elevation between the top at the curb and the surface of the roadway and pointed out, the Court finds correctly, that facing Bouck Hall, "if one looked to the right, the curb face gradually descended, until at a point 45 feet to the north, the curb face was at six inches". (
see, Cl. Ex. 9 and 10) He thought this "not consistent", since six inches was the "accepted standard". He also testified that as one faced the building and "looked to the left, approximately 58 feet...the curb face once again had a curb face depth of six inches". Asked whether he had an opinion as to the cause of the "condition" where Claimant "stepped off the curb, of a height of about 10½ inches", Claimant's expert responded that he did and he then opined that it was the result of "improper maintenance of the roadway".[3] Asked what he meant by improper maintenance of the roadway, Claimant's expert testified,
generally speaking, you provide a leveling bed of concrete, you set the granite curb...once that's completed then you generally pave the street. The pavement is done so that it is paved so that there is a depth, of the curb face, of six inches. This six inch standard that I referred to is the standard used by the New York State Department of Transportation and is shown in their highway manuals as published. It is also the standard that every municipality that I have ever worked in used. It is also the standard that is shown in a text used by architects and engineers known as, Architectural Graphic Standards.

Claimant's expert continued, "When I made my inspection I observed that the section directly in front of where the accident occurred...had been repaved...asphalt pavements are subject to constant deflection, that's the reason we call them flexible pavements. Over time if they're not properly maintained water will seep beneath the pavement...if you allow the water to get in there several things happen. One is that the soil will compress. Two, they will be subject to...freezing and thawing and this causes the pavement to change. It may bubble up, causing a pothole or it may depress".

Claimant's expert was of the opinion that the pavement on the roadway was in excess of 20 years old and that,
at some time in the past, more than five years ago, perhaps as many as ten years ago, a patch was made because it was necessary, I assume, and when that patch was made they struck the patch level from right to left, instead of following the natural contour of the sidewalk and of the curb and it is my opinion that that is why the curb face is six inches at most of the area...and yet at this point it reaches a point of 10½ inches and that I would attribute to improper maintenance.

Claimant's expert added:
During the course of my investigation I drove around the campus and I took measurements at a number of other locations and I found a consistent pattern of the six inch curb face. I also examined documents that were provided by New York State with respect to repair work that had been done on the Cobleskill campus and in examining those drawings I found that the drawings indicated a curb face of approximately six inches.

Claimant's Exhibits 14 and 15 are copies of "SITE IMPROVEMENT" plan sheets which were approved by "STATE UNIVERSITY OF NEW YORK" on May 19, 1988. Asked about these exhibits, Claimant's engineering expert testified "The actual curb face was not dimensioned on, I believe, either of these. However, they were drawn to scale and when I first saw these drawings, I scaled those curb faces and they scaled at six inches". The Court finds that Claimant's engineer is correct. Parenthetically, Bouck Hall is shown on both Claimant's Exhibits 14 and 15.

In light of the foregoing, the Court finds that, whether the result of heaving, sinking, patching or repair, the distance between the pavement level and the sidewalk level at the entrance of Bouck Hall increased from approximately six inches to 10½ to 11 inches. The Court further finds that this condition had existed for years prior to Claimant's accident.


Claimant also called an architect as an expert witness who generally supplied the same opinions with regard to the lack of maintenance as the Claimant's engineering expert. The architect also testified that he went to the scene in October of 1997 at night and measured light intensity. He testified that he took his light intensity measurement "after a rainfall". Asked if, based on his investigation, he had an opinion whether the "curb area" was in a "defective and hazardous condition", this witness responded, "based upon the dimensions and height of the curb above the paving and, based upon the inadequate lighting that I measured, that that curb is a hazard, trap, nuisance. It's like a time bomb, it's the so called accident waiting to happen".


After Claimant rested, the Court adjourned the trial since a State witness, the director of the physical plant at Cobleskill, was not available. Thereafter, the director's examination before trial was submitted to the Court by agreement of counsel, the State's counsel objecting to certain portions thereof which are not relevant herein.


The director of physical plant testified that when he learned of this lawsuit he measured the drop off from the sidewalk to the asphalt at "around 11 inches". He testified that there was a light in the vestibule in front of the doorway of Bouck Hall. Asked "How far down the sidewalk would you say that that light illuminates?" he responded, "I don't know". Asked if he knew of any artificial lighting that would illuminate the area where Claimant fell, he responded "Light from the adjacent building, Wheeler Hall, is projected down".[4]
Asked by Claimant's counsel "Have you ever heard of anyone else falling off a curb on SUNY Cobleskill property?" he responded, "No". This was the extent that the subject of prior similar accidents at the subject curb, or the absence of them, was addressed at the trial.

Although assessing the light available at the scene of the Claimant's mishap in mid-April by measuring light in October and tossing light from the top of another building into the hopper raises some interesting questions, the most interesting aspect of the lighting issue, other than Claimant's testimony, was supplied through Gauthier. He testified that, at the time of Claimant's fall he was in the parking lot on the far side of the roadway in front of Bouck Hall.[5]
Asked at the trial about lighting, Gauthier testified, "It was very dark. I did not see any lights on". He was then asked, "Where you were positioned in the parking lot, did you see Doris Bradt come through those doors?". He responded, "I seen her come through the doors but then I was busy doing things so I didn't watch her the whole time walking down the walkway. I did see her when she got to the curb area". Asked what he saw he responded, "I seen her stepping off and then I seen her fall". Asked if anything obstructed his vision he responded, "No. I was at the back of my van so I pretty much could see direct".

Taking their testimony at face value, one could conclude that Claimant saw virtually nothing after leaving the doorway to Bouck Hall, except, possibly, the campus roadway and that Gauthier saw nothing except Claimant come through the doorway and then, later, her stepping off the curb and the fall. Gauthier's accomplishment is all that more remarkable since it is a virtual certainty that Claimant was surrounded by other persons who were leaving the basketball game at the same time.


Attributing a fall to inadequate or the absence of lighting can be a two edged sword, when one has previously traversed the unlit area. "It is well established that a landowner has ‘no duty to warn against a condition that can be readily observed by the reasonable use of the senses. The situation is then a warning in itself' (citations omitted)"
Tarrazi v 2025 Richmond Avenue Associates, Inc., 260 AD2d 468, 469. In other words, darkness dictates an increased level of awareness of one's surrounding quite apart from whether or not there is a hazard in one's path.

Considerable pains were taken at the trial of this Claim to establish that, although Claimant entered Bouck Hall by the same entrance by which she exited, she did not step up from the asphalt roadway to the top of the curb in the area where the difference in elevation was excessive and hazardous. The Court finds that she did not. Nonetheless, when she entered the building it was light out and she necessarily had an opportunity to observe her surroundings, including the juxtaposition of the campus roadway, the curb, the sidewalk and the entrance to the building. Thus she is chargeable with knowledge that, as she walked down the sidewalk, she was approaching the curb and the roadway, whether it was dark or not. Under the circumstances, if she could indeed see virtually nothing, she had a duty to herself to walk with increased care and awareness, quite apart from the dangerous condition in her path created by negligence maintenance on the part of the State. In point of fact, however, if Claimant could see the roadway, she could see the curb, although her view of the curb was probably somewhat obstructed by patrons of the basketball game walking in front of her.[6]
Be that as it may, it is highly unlikely that Claimant would have observed the excessive difference in elevation between the asphalt roadway and the top of the curb immediately in front of the entrance on her way into Bouck Hall and, therefore, she had no reason to anticipate that the distance from the top of the curb to the asphalt roadway surface below would have been anything different than what she normally encountered.

After considering all the proof, the Court finds that the State was 75 percent responsible and the Claimant 25 percent responsible for the accident and Claimant's injuries caused thereby.


The Court will set this matter down for trial on the issue of damages as soon as practicable.


ENTER INTERLOCUTORY JUDGMENT.


May 5, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims




[1]
In her Verified Bill of Particulars, Claimant states that she was born on June 29, 1926.
[2]
Unless otherwise indicated, all quotations are from the Court's trial notes or from the trial electronic recording cassettes and are verbatim.
[3]
The filed Claim speaks of the State's negligence as "creating and providing a defective dangerous curb" (¶ 3) and Claimant's Bill of Particulars speaks of "installing a curb with a height measured from pavement to walk substantially greater than 6 inches" (¶ 23), both of which suggest a design or construction defect. In "CLAIMANT'S TRIAL MEMORANDUM OF LAW" we find "Claimant brings the within action on the grounds that the defendant was negligent in failing to properly MAINTAIN 1
the curb where claimant fell". A footnote referencing this sentence states "Claimant is not claiming a construction defect". This unequivocal distancing from design and construction was almost certainly dictated by the fear that the State University Construction Fund may be lurking in the wings, (since that agency may have been involved in the design and construction of Bouck Hall and environs) and the jurisdiction morass that this would trigger, if such were the case. (see, Schauer v State of New York, Claim No. 91876, Decision, Hanifin J., filed April 30, 1997) Whatever the cause of the distancing, however, the Court finds that the gravamen of this Claim is, correctly labeled, negligent maintenance and not design and construction.
[4]
Wheeler Hall was located to the northwest of Bouck Hall. (see, Cl. Ex. 12)
[5]
Claimant's Exhibit 3 is a photograph taken from the entrance of Bouck Hall looking down the sidewalk to the east and showing the parking lot on the far side of the roadway. Gauthier put an X on this photograph to illustrate the parking slot his van was in. The X is in the first parking spot to the north of the roadway.
[6]
With regard to lighting, the Court notes that the other patrons of the basketball game did not pour over the curb like lemmings.