New York State Court of Claims

New York State Court of Claims

GORE v. THE CITY UNIVERSITY OF NEW YORK, #2000-014-111, Claim No. 96097


Claim for personal injury dismissed after trial; the alleged defect did not constitute a dangerous condition.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

S. Michael Nadel
Claimant's attorney:
Levy & LevyBy: Susan J. Levy, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Nancy Hornstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 5, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


On May 9, 1996, at approximately 10:20 A.M., the claimant, a student at York College, a senior college of the City University of New York, fell on a theater stage, located in the Little Theater at the College. She seeks to hold the defendant liable for injuries she sustained, on the ground that she fell as the result of tripping on a raised portion of the stage.

The claimant was attending a theater course which met once a week. On the day she fell, she was acting as the production manager for a theater production given by the students in the class. She testified that while carrying two light shopping bags filled with props, and a light book bag over her shoulder, she entered the theater, climbed some steps, and then walked down an aisle in between theater seating, so she could cross the stage in order to arrive back stage to meet the members of her performance group. She said that she took two steps onto the stage when her right foot became caught in a raised portion of the stage floor which extended the entire length of the stage, causing her to fall forward on her knees and hands. Ms. Gore testified that the unevenness on the stage floor was approximately one half inch to three quarters of an inch, which she said was an estimate. She did not measure the unevenness on the stage floor, and she testified that the divergence could have been more, or it could have been less, than her estimate. She stated that the length of the stage floor was that of a "normal stage floor."

Ms. Gore testified that she had first noticed the unevenness in the stage floor at the beginning of the semester, in late January or early February 1996. She said that on previous occasions other students in the class stumbled over the uneven floor, and that she and some of her classmates had informed the instructor, Professor Charles McClennahan, of the condition. She asserted that between that time and the time of the accident, there was little activity on the stage, since during that period the students were seated in the auditorium seats during class, as a result of which she had little occasion to walk across the stage. On cross-examination she conceded that she had crossed the stage for rehearsals during the week before the incident, and had not fallen on those occasions.

The claimant stated that she was not in a rush, but she was eager to get to class, and contended that on the day of the incident she was not mindful of the condition of the stage floor, since she assumed that the unevenness had been corrected because the instructor had been alerted to the condition several months earlier. She stated that she was looking straight ahead as she walked, and that the lighting in the theater on the day of the incident was dim, as it had been every other time she attended the class.

On direct examination the claimant stated that Professor McClennahan witnessed the incident; on cross-examination she said she was unsure whether he had seen her fall, but that she was certain he was present at the time. Ms. Gore testified that other students in the class, who were present at the time of her fall, witnessed the incident. No witnesses to the incident testified at trial.

Ms. Gore stated that following the incident several classmates helped her up, and then she sat down in the theater for five or ten minutes to regain her composure, at which point she experienced pain in her left arm, knee, elbow and back. Following this respite, she carried out her duties as production manager for the play, on which she was being graded by the instructor. Ms. Gore explained that because it was near the end of the semester, she had to finish the school day, even though she was in pain. On direct examination she stated that following the production she met with a classmate to study for another class, and then she took an exam. On cross-examination she stated that there was no exam that day, but that she had planned to meet a fellow student at a prearranged time to obtain some notes for an exam that was to be held at some point during the following two weeks. At approximately 3:20 P.M., she went to the school's security office to report the incident. She testified that she requested to be seen by a nurse, was told that the nurse was not there at that time, but that that medical assistance was offered to her in the form of security calling for an ambulance. She declined the offer because she felt that it was not appropriate to call an ambulance for her injuries at that time. According to Ms. Gore, later that day her mother drove her to an emergency medical center where she saw a doctor for her injuries. The following week she returned to the scene of the incident to attend the theater class, at which time she took photographs of the stage area.

Sergeant Celia Gallashaw, a Public Safety Officer at the College, was called as a witness by the claimant. She testified that she was trained in the investigation of accident scenes and that it was part of her responsibilities to conduct such an investigation following a report of an accident. Sergeant Gallashaw testified that she remembered that Karen Gore reported an accident which had occurred in the Little Theater, but at trial she relied on her written incident report to recall the specifics of the event. She said that she had prepared a two page report of the incident (Claimant's Exhibit 1), which included information the claimant reported to her, as well as her own observations pursuant to an investigation of the scene of the incident.

The section of the incident report which contains information which Sergeant Gallashaw said was reported by Ms. Gore includes the following: "Student Karen Gore . . . reported she slipped on a piece of raised tile as she walked across the stage in the Little Theatre. Ms. Gore stated she did not immediately report the accident because she had a class and after class another appointment." On direct examination of Sergeant Gallashaw the following exchange took place:
Q: Now she told you, didn't she, that she tripped on a misleveled rise on the stage floor, isn't that right?
A: She told me that she slipped and fell. I'm referring to my report.
Q: Could you tell me when you wrote slipped, was that accurate or could it have meant something else? You just wrote that there.
A: This is what she told me and this is what I wrote.

Sergeant Gallashaw stated that there is a difference between slipping and tripping, and if Ms. Gore told her that she had tripped she would have written tripped rather than slipped in the incident report. She testified that Ms. Gore did not tell her that other students had tripped or stumbled at the same location, or that she had been carrying two shopping bags and a book bag at the time of her fall.

Also included in Sergeant Gallashaw's report is the name of Professor Charles McClennahan, as a witness. Sergeant Gallashaw stated that the name was given to her by Ms. Gore, and that she did not know if he actually observed the incident. She testified that no other names of witnesses were supplied to her by the claimant.

The relevant portion of the investigation report which, according to Sergeant Gallashaw, contains her own observations, states: "The stage area is constructed in two parts. The center of the stage is approximately ½ inches higher [than] the surrounding area. See exhibits #2-4 [photographs], red pen indicates the raise area." She testified that during the investigation she did not measure the difference in height between the two stage sections, but rather she made an estimate. She stated that the height difference could have been more than one half inch or less than one half inch. As part of her investigation she placed a pen on its side in the area where the stage portions met to show a comparison in height and to indicate the area where the accident occurred, and then photographed it.[1]
She testified that the difference in height was not as great as the width of the pen, and that as depicted in the photographs, one could not see the higher section of the stage rise above the barrel of the horizontally positioned pen. She stated that there was no width or gap between the stage sections and that the raised area ran across the length of the stage. She noted that the unevenness on the stage was not easily detectable, and that in order to detect it she had to slide her foot over the area.
The sergeant asserted that the condition on the stage which allegedly caused the accident was not significant, as she was neither aware of any prior incident occurring in that location, nor had anything else brought the condition to her attention. However, as a result of Ms. Gore's fall Sergeant Gallashaw concluded that the rise in the stage was a hazard because someone had slipped there, but if no one had slipped, she reasoned, she would not have considered it as such.

As clearly stated by Judge Bell of this Court in
Davis v State of New York (Claim No. 92168, unreported decision filed January 30, 1998), "the mere happening of an accident on a defendant's premises does not create liability [citations omitted]. The [defendant]'s duty with respect to the maintenance of its facilities is to use reasonable care to guard against foreseeable hazards or dangerous conditions [citations omitted]. The measure of reasonableness is essentially factual in nature. Since the [defendant] is not the insurer of its premises, before a finding that the [defendant] breached its duty of reasonable care can be made, claimant had a duty to prove by a fair preponderance of the evidence that the [defendant] created a dangerous condition or had actual or constructive notice of a dangerous condition and unreasonably failed to remedy the condition [citations omitted]."
The threshold issue presented by the facts in evidence is whether the unevenness on the stage floor amounts to a dangerous condition for which the defendant can be held liable. "[W]hether a dangerous or defective condition exists on the property of another so as to create liability ‘depends on the peculiar facts and circumstances of each case' and is generally a question of fact . . . ."
Trincere v County of Suffolk, 90 NY2d 976, 997 [citations omitted].
In accordance with the foregoing, and based upon the entire record,[2]
the Court concludes that, regardless of whether the defendant was aware of the condition on the stage, the minimal unevenness did not constitute a dangerous condition. "[T]he defect was so trivial and slight in nature that it could not reasonably have been foreseen that an accident would happen." Evans v Pyramid Company of Ithaca, 184 AD2d 960. See, also, Lopez v New York City Housing Authority, 245 AD2d 273. The condition complained of "possessed none of the characteristics of a trap or snare." Guerrieri v Summa, 193 AD2d 647, 648. See, also, Morales v Riverbay Corp. 226 AD2d 271, Scally v State of New York, 26 AD2d 606, affd 24 NY2d 747, Keirstead v City of New York, 24 AD2d 486, affd 17 NY2d 535. The unevenness on the floor of the stage was not hidden, but was readily observable by the reasonable use of the claimant's senses.[3] See, Tarricone v State of New York, 175 AD2d 308.
In view of the Court's determination, any inferences respecting notice, to be drawn from the absence of a witness statement from Professor McClennahan, or the failure of the defendant to call him to testify at trial, or from the alleged absence of records of inspection of the Little Theater, as urged by the claimant, are immaterial. To the extent, however, that either or both of these inferences could be understood to affect the claimant's burden of proof as to whether the unevenness in the stage floor amounted to a dangerous condition, neither is supported by the evidence in the record.

Sergeant Gallashaw testified that she included Professor McClennahan's name, as a witness, in her report because his name was given to her by Ms. Gore, but that she did not know if he actually observed the incident. Sergeant Gallashaw testified that soon after the time of the incident she spoke to Professor McClennahan over the telephone and asked him to submit a witness statement, but that he did not. On a second occasion she attempted to contact him, but he was unavailable. She did not make any further attempts to contact him, and never received a statement from him.

Nothing in the record would indicate that Professor McClennahan should have been expected to testify favorably to the defendant, nor is it disputed by the claimant that he was no longer employed by the defendant, or otherwise within its control, at the time of trial.[4]
See, e.g., Savage v Thomas J. Shea Funeral Home, Inc., 212 AD2d 875; 1A NY PJI3d 98; Michael M. Martin, et al., New York Evidence Handbook, §, p. 174.
With respect to the claimant's contention that actual notice of a dangerous condition should be inferred from the defendant's failure to produce records of inspections of the Little Theater, there is no evidence in the record that documents existed which were not produced.
See, e.g. Fares v Fox, 198 AD2d 396. Carlos Larios, Supervisor of Maintenance at York College, in his deposition testimony (Claimant's Exhibit 19), testified that although his duties included the preparation of records of inspections he made of buildings on campus, no inspections of the Little Theater were made, and that no inspection records concerning the Little Theater were prepared. Sergeant Gallashaw did not testify that inspection records existed. She testified about "security notices" which, she said, are not the same as inspection records, the preparation of which were not within her responsibilities.
All motions at trial not specifically ruled upon are denied.

In accordance with the foregoing, the claim is dismissed.


September 5, 2000
New York, New York

Judge of the Court of Claims

[1] Referred to as "exhibits #2-4" in her report, supra, they were introduced into evidence as Claimant's Exhibits 2 and 2A, and Defendant's Exhibit AA. Similarly, two photographs introduced into evidence as Defendant's Exhibits FF and GG depict the claimant inserting the end of a mechanical pencil, with the writing point retracted, at virtually the same location.
[2] In addition to the five photographs noted, supra (footnote 1), 17 other photographs depicting the unevenness on the floor of the stage, all of which were taken by the claimant (or at her behest in her presence), were introduced into evidence: Claimant's Exhibits 7, 8, 9, 10, 11, 12, 13 and 14, and Defendant's Exhibits KK, LL, MM, NN, OO, PP, QQ, RR and SS.
[3] The claimant's contention that because of dim lighting, the condition could not easily be seen and created a dangerous condition, is unsupported. Sergeant Gallashaw testified that the Little Theater was dimly lit to create a theater-like atmosphere which one would expect to encounter in such an environment, and that she had no difficulty in seeing the stage when carrying out her investigation. Claimant's Exhibits 25, 26, 27, 28, 29 and 30 do not establish that the lighting in the theater was in a state of disrepair or otherwise faulty, but, rather demonstrate that normal maintenance procedures were in fact carried out by the College's staff.
[4] The claimant's motion (Motion No. M-57981), determination of which was held in abeyance pending trial, is denied as moot. The Court previously informed counsel that the specific relief requested, Professor McClennahan's social security number, would not be granted, but that the motion would be held in abeyance as a basis for precluding his testimony, in the event that the defendant called him to testify at trial.