In this timely filed claim, Florence Stanton, Claimant, alleged that she was
injured when she slipped on a broken step in Van Hoesen Hall on the campus of
SUNY Cortland. On the date of her injury, September 20, 1993, she was employed
as a secretary by The Research Foundation of State University of New York (The
Research Foundation) and worked in Van Hoesen Hall.
Defendant denied that it had been negligent and, in addition, asserted that
Claimant's cause of action was barred by Sections 11 and 29(6) of the Workers'
Compensation Law on the grounds that Claimant was a special employee of the
State of New York, or a joint employee of the State of New York and The Research
Foundation. Because the affirmative defense is potentially dispositive, I will
address it first.
Workers' Compensation is the sole remedy available to an employee against his
or her employer for injuries sustained in the course of employment (
Gonzales v Armac Industries
, 81 NY2d1, 8; Billy v Consolidated Machine
, 51 NY 2d 152, 156; Poppenberg v Reliable Maintenance
, 89 AD2d 791; see also,
Workers' Compensation Law
§11, 29). But, the identity of an injured worker's employer is not
always easy to ascertain. When an employer transfers a general employee, the
worker becomes the special employee of the transferee and is barred from
bringing a negligence action against the transferee employer (see,
Thompson v Grumman Aerospace Corp.
, 78 NY2d 553, 557; Lane v Fisher
Park Lane Co
, _____AD2d_____, NYLJ, Dec 4, 2000, at 21, col 3). Whether or
not a worker should be considered a special employee is generally a question of
fact, but it is presumed that the employee is continuing in the service of the
general employer until there is a "clear demonstration" that the general
employer surrendered, and the special employer assumed, control of the special
employee (Thompson v Grumman Aerospace Corp.
Lane v Fisher Park Lane Co
; Stone v Bigley
, 309 NY 132, 135).
The evidence in this case does not support the conclusion that Claimant was
Defendant's special employee. Claimant testified that she worked exclusively
for Deborah Miller, the Coordinator of the Migrant Education Outreach Fund, and
that she and Ms. Miller were both employed by The Research Foundation, a
not-for-profit corporation. During her entire tenure at The Research
Foundation, Claimant never worked for or received directions from any State
University of New York employee, and did not enjoy any of the fringe benefits of
SUNY employment such as pension eligibility or free parking.
Defendant's evidence of Claimant's special employment consisted of nothing more
that its cross-examination of Claimant. It established only that SUNY Cortland
provided office space, furniture and certain other resources to The Research
Foundation and that a SUNY dean participated in the search team that hired
Claimant's supervisor. None of this evidence provided "a clear demonstration"
that The Research Foundation had surrendered its control over Claimant (
see, Thompson v Grumman Aerospace Corp.
, 78 NY2d 553,
Nor did the evidence prove that Claimant was a joint employee of The Research
Foundation and SUNY. There was no showing that the Migrant Education
Opportunity Program was a joint venture between SUNY and The Research Foundation
or that SUNY and The Research Foundation exercised joint control over Claimant's
see, Poppenberg v Reliable Maintenance Corp.
, 89 AD2d 791,
; Matter of Janikowski v Yardleys of London
, 11 AD2d
577). Therefore, I find that the Workers' Compensation law does not bar her
claim against Defendant.
I now consider the merits of that claim.
The building where Claimant fell, Van Hoesen Hall, is located near the center
of campus and is build into a hillside. It is a three-story building which has
two staircases. Students, faculty and administrators use the stairs to access
the classrooms and offices in the building. Many also find it convenient to
pass through Van Hoesen Hall when walking from one part of the campus to
another. They use the building's stairs because the entrances on the downhill
and uphill sides of the building are located on different levels. Consequently,
the staircases are heavily traveled.
One morning at approximately 6:30 a.m., Patrick Stack, a janitor employed by
Defendant, noticed that a piece of terrazzo had broken off a step in one of the
stairways. The stairway was the one that was closer to the janitor's break
room. The broken step was located on the flight that ran between the first and
second levels. It was about three or four steps from the top of the flight. In
his deposition, Mr. Stack testified that the broken part was at the leading edge
of the step and was about ten inches long.
Stack recalled removing the broken piece and immediately alerting the
maintenance department. He left the area without taking any steps to cordon off
the broken step or to warn stairway users of the hazard. Taking specialization
close to the heights of absurdity, he explained at trial that he believed that
only the maintenance department had the authority to secure the area. He
recalled Claimant approaching him in the break room later that day and telling
him that she had just fallen on the stairs. He testified that he told her to
file an accident report.
There is some dispute about when Stack noticed and reported the broken step and
when Claimant fell. Stack gave two different accounts. He testified at trial
that he found the broken step at 6:30 on the morning of Monday, September 20.
Stack also testified in his deposition that only 30-45 minutes passed between
the time he reported the broken step and the time Claimant told him about her
fall. These two pieces of testimony, taken together, suggest that Claimant fell
at or shortly after 7:00 a.m. At trial, however, Stack recalled that Claimant
told him she had just fallen at about 9:30 a.m.
Claimant thought her accident took place later in the day. She testified that
she left her office at about 1:00 p.m. and fell a minute or two later. Her
recollection is consistent with the accident report she filed on September 20
(Exhibit A), which also places the fall at 1:00 p.m.
Claimant described her fall in the following terms: She was on her way to
obtain materials that her boss needed for a 2:00 p.m. meeting. She was wearing
flat, rubber soled shoes. While descending the staircase, she lost her balance
on the broken step and started to fall. She attempted to break her fall by
grabbing the railing, but only succeeded in twisting and causing herself further
injury. She finally landed at the bottom of the stairs. She looked up to the
step where she had lost her balance and noticed that there was a six to
seven-inch piece missing. After collecting herself for a moment, she stood up
and went to exit the building. As she passed through the doors, she encountered
Mr. Stack and another janitor. She told them about her fall and the defective
step. She recalled the janitors telling her that they were aware of the
condition and had reported it to the maintenance department on the previous
Friday (September 17
Claimant introduced two work orders that were potentially related to this
claim. A September 17, 1993 form (Exhibit 1) stated that in "Cornish/V-H,"
there was "[a] broken/loose step inside building, side door by entrance near
Public Safety" that "David C." repaired on September 24
. A second work request (Exhibit 2), dated September 20, 1993, called for
repairs to a "Broken Stair" in "VHH" and said "Pl Repair ASAP." The form
reflects that "David C." also made these repairs on September 24.
David Colantonio was a mason/plasterer who worked in Defendant's maintenance
department. He is the "David C." referred to in the work orders. He explained
in his deposition that the two orders would have been generated by his
department when it received telephone calls requesting repairs. The dates on
the orders would have corresponded to the dates that maintenance received the
requests. It was his belief that the September 20
work order (Exhibit 2) related to the step on which Claimant fell, and that the
September 17 work order (Exhibit 1) related to a repair done in Cornish Hall.
He said that he completed both repair jobs on September 24, and he estimated
that the repairs took about 1-1 ½ days. He recalled that the broken part
of the Van Hoesen Hall stairway was at the leading edge of the third or fourth
step from the top of the flight. It was twelve inches long and one inch wide.
Mr. Colantonio said that it was the department's "first priority" to repair
broken steps as soon as possible after it received a work order.
"There's a terrific amount of traffic" in the stairway in question, "[p]eople go
down there by the hundreds." When he arrived to make repairs, he would have
closed off the affected part of the staircase using a rope, a barricade and
cones. Those wishing to use the stairs once it was barricaded would have had to
stay on the other side of the staircase.
When it acts as a property owner, the State is held to the same standard of
care as any private landowner (
Basso v Miller
, 40 NY2d 233; Preston v State of New York
, 59 NY2d
997). The State must act as a reasonable person in maintaining its property 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 (Miller v State of New York
, 62 NY2d 506, 511). But
the State is not an insurer, and negligence may not be inferred solely from the
happening of an accident (Tripoli v State of New York
, 72 AD2d 823;
Mochen v State of New York
, 57 AD2d 719). To prevail on her claim,
Claimant must establish by a fair preponderance of the evidence that the State
breached its duty of care by (1) creating, or having actual or constructive
notice of, a dangerous condition; and (2) failing to take steps to correct, or
at least neutralize, the dangerous condition within a reasonable time. Claimant
also must prove that the State's failure to maintain its property proximately
caused her injury (Mandel v City of New York
, 44 NY2d 1004).
Claimant has met her burden of proof here.
I find that Mr. Stack discovered the broken step at 6:30 a.m. on September
, giving Defendant actual notice of the condition. I was persuaded by Mr.
Colantonio that the September 17 work order related to a different step. The
fact that Claimant recalled the janitors telling her that they reported the
defect on September 17 does not undermine her credibility. It may mean that the
janitors were initially confused about which step Claimant was describing or
that they simply gave her inaccurate information about the date that they
reported the problem.
I further find that the accident occurred just after 1:00 p.m. on September
. Both witnesses were trying to be careful to remember the events of the day in
question accurately. But Claimant's recollection seemed more trustworthy than
Mr. Stack's. She was able to describe where she was going at the time of the
accident, and related her departure time to preparations for a 2:00 p.m.
meeting. Her testimony was also consistent with the accident report she
prepared on the day in question. As described above, Mr. Stack offered two
different accounts of when the accident took place. His first recollection
would have had Claimant falling just after 7:00 a.m. His second recollection,
that she fell at 9:30, was somewhat more plausible. However, Mr. Stack admitted
at trial that he did not actually remember when Claimant reported the fall.
Rather, he decided that she reported the fall at 9:30 because that was the time
when he was usually in the break room.
Defendant argues that the broken step was only a trivial defect. It points
out that a number of people, perhaps hundreds, used the step between 6:30 a.m.
and 1:00 p.m. But the fact that no one else was hurt during that time does not
mean that the step was not hazardous. The location of the broken step and the
size of broken area convince me that the condition was indeed hazardous, and
that Defendant had a duty to make sure that the hazard would not cause any
There is no question that Defendant breached its duty of care and that its
breach contributed to Claimant's accident. It would have taken only a few
minutes for Mr. Stack to barricade the broken part of the stairway in the manner
Mr. Colantonio described . It would have taken even less time for him to post
warnings. While Mr. Stack promptly reported the broken step to maintenance, he
did not immediately take the other precautions, even though he knew that the
staircase was about to be heavily traveled. As a result of his initial lapse,
and the maintenance department's failure to respond promptly to his report, the
staircase was unguarded for at least six and one-half hours before the broken
step caused Claimant to lose her balance and
In spite of the overwhelming evidence of Defendant's negligence, it should not
shoulder the responsibility alone. Claimant is required to see that which is
before her and which is able to be seen (
Weigand v United Traction Co.
, 221 NY 39). There is nothing in this
record that shows that her ability to see was impaired or obstructed in any way.
In fact, she candidly admitted that she was looking straight ahead as she
proceeded down the steps, and did not look down at any time. In light of this
testimony, I find that Claimant was also negligent and must share some
responsibility for her injuries.
The Court fixes the State's negligence at 85% and the Claimant's negligence at
The Chief Clerk of the Court is directed to enter an interlocutory judgment on
the issue of liability. This claim will be scheduled for trial on the issue of
damages as soon as practicable.
LET JUDGMENT BE ENTERED ACCORDINGLY.