On Sunday, November 20, 1994, Toni Ann
(hereinafter "claimant"), who was then two and a half years old, was accompanied
by her mother, Danielle Gallipoli, and her great-grandmother, Gloria D'Angelo,
at the visiting room at Bedford Hills Correctional Facility ("Bedford"). They
were visiting claimant's grandmother, Cherie Gallipoli. Claimant was playing on
the floor, when a stack of chairs toppled over and caused her injury. Claimant
contends that stacked chairs are a dangerous condition and that defendant was
negligent in permitting them to remain in the visiting room. Defendant argues
to the contrary and maintains that the chairs were kept in the visiting room to
accommodate the number of visitors which was particularly high on weekends. The
trial of this claim was bifurcated and this Decision pertains solely to the
issue of liability.
The visiting room was a large rectangular room with a number of tables and
stackable chairs. Vending machines and a stack of chairs were located next to
the right wall, near a guard post. (Exs. B, D).
Claimant's mother, Danielle Gallipoli, testified that she, her mother and
grandmother, were seated at a table on the right side of the visiting room, at a
distance of approximately six feet from the stacked chairs. Gallipoli described
the chairs as two seats attached at the arms with metal legs and vinyl
strapping. Gallipoli stated that the chairs were broken and that there were
eight to ten chairs stacked at an approximate height of five feet. She
testified that she had observed the stack of chairs on prior visits.
Gallipoli was aware that, in the back of the visiting room, there was a
nursery, supervised by inmates, available for claimant. Gallipoli felt,
however, that given claimant's age, it was preferable for her to remain under
Gallipoli's supervision. During the first hour and a half of the visit,
claimant played quietly on the floor with a toy, seated near her mother.
Gallipoli testified that she heard a sudden noise and turned to observe a 10
year old boy tumbling down with the stack of chairs and onto claimant.
Gallipoli screamed and removed claimant from under the chairs.
Claimant, who was seven years old at the time of trial, was not permitted to
testify because it was apparent, upon questioning, that she did not have a
sufficient understanding of the difference between truth and falsehood and the
significance of the oath. Nonetheless, there was no evidence to suggest that
claimant's conduct was a contributing cause of the accident.
Correction Officer Claud Parker testified that he has been employed at Bedford
for seven years and was on duty in the visiting room on the date in issue. He
stated that, on weekends, one officer is stationed at the visiting room entrance
and three additional officers are assigned to the visiting room area and
patrolled the area by walking, rather than remaining seated at stationary posts.
Parker testified that children, supervised by adults, are permitted in the
visiting room, however, the children are not supervised by the correction
officers; supervision for children is provided only in the nursery by
Parker described that the chairs in the visiting room as stackable, single
seats, similar to those depicted in defendant's exhibit B. Parker testified
that, on the day of the accident, four to five chairs were stacked at a height
of approximately four feet. He considered the stack solid. Contrary to
Gallipoli's testimony, Parker stated that the chairs were usable and not broken.
Parker was at a distance of 40 feet from claimant when the accident occurred.
He came to her assistance and estimated that the chairs were located eight feet
from the table.
It is well established that "[t]he State just as any other party *** is
responsible, in the operation and management of its schools, hospitals and other
institutions, only for hazards reasonably to be foreseen, only for risks
reasonably to be perceived." (
Flaherty v State of New York
, 296 NY 342, 346). With respect to the
safety of persons on its property, the duty of the State is one of reasonable
care under the circumstances (see
, Miller v State of New York
NY2d 506, 513; Preston v State of New York
, 59 NY2d 997, 998; Basso v
, 40 NY2d 233,241). The State, however, is not an insurer of the
safety of its premises and negligence cannot be inferred solely from the
happening of an accident (see
, Killeen v State of New York
NY2d 850, 851; Condon v State of New York
, 193 AD2d
Upon listening to the witnesses testify and observing their demeanor as they
did so, the Court finds that the credible evidence established that claimant was
injured while momentarily unsupervised by her mother, when a stack of single
seat chairs toppled over onto claimant, due to a 10 year old boy's unforeseen
conduct. The Court finds Officer Parker's testimony most credible, in that
there were four to five single seat chairs stacked against the visiting room
wall to be utilized for an excessive number of visitors on the weekends. The
Court finds that, under the circumstances presented, the presence of four to
five stacked chairs did not create a dangerous condition. Rather, the facts
establish that the accident was an unforeseen occurrence of which defendant
cannot be held liable.
Defendant's motion to dismiss, upon which decision was reserved, is now
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 90746.