New York State Court of Claims

New York State Court of Claims

CLINE v. THE STATE OF NEW YORK, #2000-011-106, Claim No. 100564


Synopsis


Claimant is awarded damages for past pain and suffering for negligence arising from a trip and fall in a parking lot of a correctional facility.

Case Information

UID:
2000-011-106
Claimant(s):
MARGARET CLINE
Claimant short name:
CLINE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100564
Motion number(s):

Cross-motion number(s):

Judge:
Thomas J. McNamara
Claimant's attorney:
Levinson, Zeccola, Reineke, Ornstein & Selinger, P.C.(John S. Selinger, Esq., of counsel)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Frederick H. McGown, III, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
August 2, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:
Affirmed - Third Dept., 12/6/01
See also (multicaptioned case)



Decision

This is a claim for negligence arising from an incident in which Claimant tripped and fell while walking to her car in a parking lot at Wallkill Correctional Facility.

On November 26, 1998, after visiting the son of a friend at Wallkill, Claimant left the visitor's area and walked toward her car in the parking lot. It was raining heavily at the time and she testified that she walked as quickly as possible and was looking at her car as she went. Before she reached her car, her foot became caught under an asphalt lip which partially circled a recessed manhole cover in the parking lot. She fell forward and extended her left hand and arm to lessen the impact. After falling she felt pain in her left hand, arm and shoulder and in her right foot. She was taken from the scene by ambulance to St. Luke's Hospital emergency room for treatment.

The State like any other landowner, has the duty to maintain its premises in a reasonably safe condition in view of all the circumstances including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk (
Preston v State of New York, 59 NY2d 997; White v Gabrielli, ___ AD2d ___, 707 NYS2d 505, parking lot).
Defendant maintains that as a governmental body, its policy and practice with respect to placing the manhole cover may not be the basis for the imposition of liability (
see Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). Defendant, however, has the initial burden of establishing its right to judgment on the basis of qualified immunity whereupon the burden shifts to the Claimant to present evidence to support a finding that immunity should be denied because the safety plan evolved without adequate study or lacked a reasonable basis (Appelbaum v County of Sullivan, 222 AD2d 987; Cummins v County of Onondaga, 198 AD2d 875,877 affd 84 NY2d 322).
The parking lot where Claimant fell was repaved in 1993 by the Department of Transportation. Ernst Hofelmann, the maintenance supervisor at Wallkill for the past 12 years, testified that a new top coat was applied which raised the level of the surface. According to Mr. Hofelmann, a riser was not used to raise the manhole cover where Claimant fell. The cover was situated in a sloped area of the parking lot and using a riser would have raised at least a portion of the cover above the surface of the lot and created a tripping hazard.

Although Mr. Hofelmann testified that he conferred with the engineers from DOT on all the details of the job, he also testified his responsibilities on the project were to order material and coordinate the work. He further testified that he did not explore other methods of leveling the manhole cover beyond using a riser as that would have been done by DOT. No testimony from those involved at DOT was elicited. The proof does not establish that the decision to leave the manhole cover in the condition it was found on November 26, 1998 was the product of a plan or study. Accordingly, Defendant is not entitled to qualified immunity.

Michael Nuzzolase, the supervisor for the Village of Goshen Department of Public Works, testified that manhole covers should be flush with or just below the surface of a paved area. While he recognized that placing a riser beneath this manhole cover would not have made the cover flush with the surface, he suggested a few ways in which the cover could have been brought flush with the surface of the lot.

Claimant testified that as she walked to her car, the entire parking lot was covered with water and she didn't see the manhole cover. Her foot slipped and was then caught under the lip of asphalt above the manhole cover. She fell forward to the ground where she was found lying on her stomach by a correction officer who summoned help. Photographs of the area of the lot where the manhole cover is located show that the uphill portion of the cover is significantly below the surface of the paved lot while the downhill side is closer to the surface. The photographs together with the testimony by Claimant establish that the raised asphalt around the manhole cover was an unreasonably dangerous condition which caused Claimant to fall. The State, therefore, is liable for the injuries she suffered.

Claimant was taken to St. Luke's Hospital emergency room where she complained of pain in her fingers, left arm and shoulder. X-rays taken at the hospital of the left shoulder showed a fracture through the surgical neck of the humeral head, an avulsion fracture of the greater tuberosity and a non-displaced comminuted fracture of the base of the fifth metatarsal of the right foot. Her left arm was place in a sling and she was given a soft shoe for her foot and told to see her physician. The following day, Claimant went to Mercy Hospital in Port Jervis where she made the same complaints. X-rays were taken again and she was told to see her physician.

On November 30, 1998, she was seen by Dr. Bowman who referred her to Dr. Bhanusali, an orthopedist. She was seen by Dr. Bhanusali on December 2, 1998 at which time, Claimant testified, he placed soft casts on her arm and foot. Claimant was seen by Dr. Bhanusali on four other occasions. The last visit was on February 8, 1999. During that visit, Claimant was encouraged to do range of motion exercises for the shoulder and advised to get physical therapy for the left shoulder.

Claimant testified that she had eight to ten sessions of physical therapy. She was also seen by Dr. Kulak because of weakness in her left hand. Dr. Kulak performed carpal tunnel release surgery on Claimant's left wrist on July 1, 1999 at Horton Memorial Hospital. Claimant has a 2-3 inch non-disfiguring scar on her left wrist as a result of that surgery.

According to Claimant, she has constant pain in her left arm and shoulder and takes 8-10 Tylenol a day. Her right foot is better though she feels pain there when it rains. She testified that she has a constant burning sensation in her left wrist and that she is a diabetic and has lost sight in one eye because her blood sugar was high and could not be controlled during the year following the accident. Claimant, who is left handed, testified that prior to the accident she hand painted china which she can no longer do because of the pain and reduced sight. She also has been depressed after the accident because she has no sense of self-worth.

Records of the treatment provided by each of the hospitals and physicians mentioned were placed in evidence but no expert medical testimony was proffered at trial. Claimant testified that she had no pain in her left hand, arm or shoulder and right foot prior to the time she fell at Wallkill Correctional Facility and that she had a great deal of pain in those areas afterward. In addition, the records of treatment, particularly the x-ray reports, provide objective proof of injuries in those areas after the accident. This evidence is sufficient to support a finding that the fractures to the left shoulder and right foot were caused by the fall on November 26, 1998. However, because the treatment records are prima facie proof of only the facts contained therein(see CPLR 2306) and as no expert medical opinion testimony was presented, the proof is insufficient to connect the left carpal tunnel syndrome and loss of vision to the accident. In addition, there is not adequate proof from which to conclude that the pain which Claimant currently experiences is permanent.

Claimant is not without some responsibility for the happening of this incident. She testified that the parking lot surface was covered with water yet she was walking as quickly as possible and was focused on her car rather than on where she was walking. Claimant is twenty-five percent responsible for the happening of the accident and Defendant is seventy-five percent responsible.

Claimant is entitled to damages of $30,000. for all her past pain and suffering reduced by her 25% share of culpability to $22,500.

LET JUDGMENT BE ENTERED ACCORDINGLY.


August 2, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims