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
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
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
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
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.
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
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
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
In accordance with the foregoing, and based upon the entire
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
, 193 AD2d 647, 648. See, also, Morales v Riverbay Corp
AD2d 271, Scally v State of New York
, 26 AD2d 606, affd
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
, Tarricone v State of
, 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.
See, e.g., Savage v Thomas J. Shea Funeral Home, Inc
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.
., 212 AD2d 875; 1A
NY PJI3d 98; Michael M. Martin, et al., New York Evidence Handbook,
§220.127.116.11, 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
All motions at trial not specifically ruled upon are denied.
In accordance with the foregoing, the claim is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.