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
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
see Friedman v State of New York
, 67 NY2d 271; Weiss v
, 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
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
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
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.