New York State Court of Claims

New York State Court of Claims

VACHON v. THE STATE OF NEW YORK, #2000-015-511, Claim No. 97812


The current State Uniform Fire Prevention and Building Code (9 NYCRR 600 et seq.) does not apply to a pre-existing building unless alteration costs within a six month period exceed 50% of the replacement costs of the building.

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):

Claimant's attorney:
Law Offices of Nora Constance MarinoNora Constance Marino, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, Esquire
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 11, 2000
Saratoga Springs

Official citation:

Appellate results:
Affirmed - Third Dept., 8/2/2000
See also (multicaptioned case)

The trial of this claim which seeks to recover for personal injuries allegedly sustained by the claimant when she tripped and fell on the landing and western steps of the south portico of the New York State Capitol was bifurcated and this decision addresses the liability issue.

The south portico is comprised of a colonnade supporting a roof at the State Street entrance located on the south side of the State Capitol in Albany, New York. The landing of the portico is constructed of rectangular granite blocks or flags which were set in place between 1870 and 1875. The incident occurred at the western stairway of the portico and the photographic exhibits depict that stairway as containing one granite step between the landing of the portico and the sidewalk. The stairway is seventy-three inches in width with a metal handrail located upon the left, or building side, of the portico as one faces it looking from State Street eastward. The railing was installed at a cost of approximately $200.00 during 1995 at the request of a disabled State Senator and has since been removed. The weather at the time of the accident was sunny, clear and dry.

On April 7, 1997, the seventy-two year old claimant traveled by bus from her home in New York City accompanied by her daughter and common-law husband in order to attend a meeting at the State Capitol concerning rent control. Claimant testified that the bus arrived at the Capitol on the morning of April 7 and that it was a clear day. Claimant approached the south portico in order to enter the Capitol, observed the hand rail at the western staircase and used that handrail as she stepped up upon the landing and entered the building. Upon the conclusion of the meeting claimant exited the Capitol with her husband and daughter by way of the south portico. Claimant's husband and daughter descended the western staircase ahead of the claimant who, according to her testimony, was looking straight ahead as she approached the stairs. Claimant testified that the sole of one of her shoes caught upon something causing her to pitch forward. She described what occurred next as follows:
  1. Are you right-handed or left-handed?
  2. I am left-handed.
  3. When you normally go downstairs, which side do you normally go to?
  4. Automatically always to the left.
  5. What did you do when you felt yourself beginning to fall?
  6. Well, I reached for the banister, and it wasn't there. It was at the - -
  7. And what happened after that?
  8. Then I fell forward on both my hands. There were two steps there and I couldn't regain my balance and I went forward and landed on my hands . . .
The Court received into evidence Exhibits 1, 3, 4, 5 and 6, photographs of that portion of the portico and steps involved in the incident which claimant identified as accurately depicting the accident location. Claimant's testimony was less than precise with respect to where her fall occurred upon the landing and staircase. For instance, Exhibit 5 is a closeup of the handrail depicting a very small portion of the landing and step closest to the building. At one point in her testimony, claimant testified that the portion of the landing and step depicted in Exhibit 5 is where she fell. Later, claimant testified on two separate occasions that she was on the left side of the landing approaching the staircase at the time of her fall as she always goes to the left because she uses her left hand to hold a handrail or banister. Claimant was unable to testify with certainty as to what caused her to trip although she did state that her loss of balance began in that portion of Exhibit 3 depicting the space where the two granite flags closest to the western staircase abut. Claimant testified on a number of occasions that as she fell she reached out to her left expecting to find a handrail or banister to grab onto in an attempt to break her fall.

Claimant's daughter, Liza Grace Vachon-Coco, testified that she descended the stairway approximately six feet in front of her mother with her father immediately to her right. She heard her mother yell, turned and saw her in the process of falling down the steps before striking the ground. Ms. Vachon-Coco stated that she had observed the crack between the two granite flags as she approached the staircase, stepped over it in order to descend the stairs and that she believed it was this crack upon which her mother stubbed her shoe causing the fall. Ms. Vachon-Coco looked about the area after the fall and did not observe any garbage, debris or other material upon which her mother may have tripped. Her description of her mother's location upon the landing and steps at the time of her fall was confusing and imprecise. As best the Court can discern from that testimony, the claimant was close to the street side granite column when the incident occurred.

New York State Police Officer Steven McDonough was on duty and arrived at the scene of the accident within three minutes from the time he received a report from his dispatcher. He observed claimant partially laying and sitting on the west side of the State Street steps of the south portico. He made inquiry of claimant as to what occurred and she advised that "she lost balance on the steps"[1]
. Officer McDonough investigated the area and did not discover anything such as stones, toys, ice, or loose debris that could have caused or contributed to the fall. McDonough described the entire area where the incident occurred as well lit by the bright sunlight. Officer McDonough related that he was unaware of any prior accident occurring upon the steps or landing of the south portico in his ten years working at the State Capitol.
Claimant offered the deposition testimony of Kevin O'Connor in which he stated that he was employed by the New York State Office of General Services and had held the position of Building Superintendent of the New York State Capitol since March, 1995. Upon learning of the accident, Mr. O'Connor traveled to the south portico and undertook a visual inspection which failed to disclose any debris or loose materials which may have constituted a tripping hazzard.

According to claimant's counsel, there are two negligent acts on the part of the defendant which give rise to liability for claimant's injuries. The first alleged act of negligence is the presence of a raised flag located at the top of the western stairway landing which caused claimant to trip. The second negligent act on the part of the State was the failure to place a second handrail upon the landing and steps of the western stairway forty- four inches from the existing handrail. Both sides offered expert testimony regarding these issues.

Stanley Fein testified on behalf of the claimant and related that he has been a licensed engineer in New York State since 1967 and evaluates approximately 100 litigation related cases annually. Mr. Fein stated that he first spoke with claimant's counsel concerning this case in November of 1998 and shortly thereafter received certain photographs of the area and was advised of certain measurements made by claimant's counsel, which Mr. Fein confirmed through measurements taken on the morning of the trial. Mr. Fein testified that he had not read the claim, bill of particulars or any deposition testimony prior to arriving at the opinions he expressed at trial. Nor did he take into account the way in which the claimant fell in reaching his opinions. Mr. Fein testified that had claimant used the available handrail the accident would probably not have occurred. He went on to relate that in his opinion the stairway was not in compliance with the state Uniform Fire Prevention and Building Code (9 NYCRR 600
et seq.), hereinafter referred to as the Building Code or Code, in that the stairway was seventy-three inches in width and had only one handrail while the Code requires that every stairway have handrails no further than forty-four inches apart (see, 9 NYCRR 735.3(a)(10)). Mr. Fein stated that good and accepted engineering practice since the late 1930s has been to install handrails on all stairways in all buildings. He felt that the western stairway of the south portico was particularly dangerous because the installation of a single handrail would have reasonably led users of the stairway to believe that a second handrail was located forty-four inches to the south of the existing handrail. Mr. Fein testified that a second dangerous condition was the raised granite flag depicted in Exhibit 3 as the difference in elevation between the stones created a tripping hazzard when considered in relation to its proximity to the stairway. The witness stated that the difference in elevation between the two granite flags would have taken years to develop.
Upon cross-examination Mr. Fein testified that he had no idea when the portico was built. Further, the witness conceded that the Uniform Fire Prevention and Building Code is inapplicable to structures or parts of structures which predate its adoption in 1984, unless renovated subsequent thereto at a price exceeding 50% of the structure's replacement cost. Mr. Fein stated that in his opinion the cost of installing the handrailing that was in place on the date of the incident was approximately $200.00.

Building Superintendent Kevin O'Connor appeared as a witness for the defendant. Mr. O'Connor related that he and his staff conducted inspections of the exterior of the Capitol on a daily basis and that in the course of inspecting the scene of the accident approximately one-half hour after its occurrence he found the south portico platform and steps free of debris and tripping hazzards. Mr. O'Connor related that every day hundreds to thousands of people use the south portico entrance to the Capitol and there was no history of any prior accidents occurring at the site previous to April 7, 1997. The witness placed the value of the Capitol at one to one-and-a-half billion dollars and related that the handrail depicted in the photographic exhibits was installed during 1995 at a price of between $100.00 to $200.00.

Licensed civil engineer Michael Bryski testified as the defendant's expert. The witness related that he has been a professor of highway design and building construction at Hudson Valley Community College since 1969 and has been Chairman of the department since 1980. He is a member of the American Society of Safety Engineers and has been taking and giving courses in pedestrian slip, trip and fall prevention for over thirty years. Claimant's counsel conceded that Mr. Bryski was an expert in the field of civil engineering and accident reconstruction with respect to the evaluation of slip and fall accidents on pedestrian walkways.

Mr. Bryski related that upon being retained by the defendant he did an on-site examination of the south portico and interviewed Officer McDonough who was present immediately after the fall. Mr. Bryski reviewed the claim, the bill of particulars, the discovery and inspection responses, the deposition transcripts of claimant and Kevin O'Connor as well as the claimant's expert witness response. In addition, Mr. Bryski researched climatological data for the month in which the accident occurred. In the course of his physical inspection Mr. Bryski took notes which revealed that the involved stairway was seventy-two inches in width. The witness measured the height differential of the crack where the two granite flags abutted and found that there was a differential of 3/16 of an inch at the southern edge of the abutment and 1/8 of an inch at the northern edge.

Mr. Bryski testified that he was unfamiliar with the requirements of any building code which may have been in effect at the time of the portico's construction and that the 1984 Code referred to by claimant's expert only applied to a pre-existing building when there was a renovation of the structure which exceeded 50% of the replacement cost. Mr. Bryski stated that even if the current Code did apply to the south portico it would not require a second handrail as that regulation only applies to stairways having three or more risers and the portico stairway had only two. Upon cross-examination, Mr. Bryski stated that even if a second handrail had been available and claimant had reached it she most likely would not have been able to use the handrail to prevent her fall. When pressed by claimant's counsel, Mr. Bryski was asked and answered as follows:
  1. All right. Well, then you can clarify it for me. What are you basing it on?
  2. Again, literature I've reviewed in the past, primarily in the National Research Council literature, which it included a lot of studies made on many aspects of ascent and descent of stairs, including that part, the use of handrails.
  3. Okay. So, from all this literature you've read and all your knowledge, you're saying that it's impossible for someone to stop himself from falling by grabbing onto something?
  4. No, I can't say impossible, because different people have different strength. Arnold Schwarzenegger could do it. I'm not sure I could.
During the course of the trial, defense counsel made a motion to dismiss the claim for failure to establish a prima facie case which will now be addressed.

Like any landowner, the State has a duty to the public to maintain stairways upon its property in a reasonably safe condition (
Gramm v State of New York, 28 AD2d 787, affd 21 NY2d 1025). Ordinarily, the State must have notice of the alleged defective condition before liability will attach (De Luke v State of New York, 169 AD2d 916), unless the defendant or one of its contractors created the dangerous condition (June v Zikakis Chevrolet, 199 AD2d 907). Of course, it is claimant's burden to establish his or her prima facie case, including proximate causation. As stated by the Appellate Division, First Department in Lynn v Lynn, 216 AD2d 194, 195:
". . .'Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury' (Ingersoll v Liberty Bank, 278 NY 1 7; see, Feblot v New York Times Co., 32 NY2d, at 495, supra, citing Digelormo v Weil, 260 NY 192, 199-200, supra; see also, Schneider v Kings Highway Hosp. Center, 6 NY2d 743, 745). If 'there are several possible causes of injury, for one or more of which the defendant is not responsible, plaintiff cannot recover without proving the injury was sustained wholly or in part by a cause for which the defendant was responsible' (Digelormo v Weil, 260 NY, at 200, supra)." (Bernstein v City of New York, 69 NY2d 1020, 1021-1022).
The Court will first address the alleged defect concerning the height differential of the granite flags. In the case of
Trincere v County of Suffolk, 90 NY2d 976, 977, the Court of Appeals held that "there is no 'minimal dimension test' or per se rule that a defect must be of a certain minium height or depth in order to be actionable", but went on to hold that under certain circumstances a court should decide that an alleged defect was of such a trivial nature that as a matter of law it could not give rise to liability. Such a determination "depends upon the peculiar facts and circumstances of the case, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury" (Denmark v Wal-Mart Stores, ____ AD2d _____, 699 NYS2d 499). If after considering those factors a court arrives at a determination that the defect is trivial as a matter of law the claim premised thereon should be dismissed (Aguilar v New York City Transit Auth., ____ AD2d ____, 2000 WL 352521; Iadarola v Meadows Plaza Development Corp., ____ AD2d ____, 2000 WL 471444). Once it is determined that the difference in elevation is trivial, the alleged defect will not be actionable unless the injured party can establish that it has the characteristics of a trap, snare, or nuisance (Leverton v Peters Groceries, Inc., ____ AD2d ____, 700 NYS2d 316; Tesak v Marine Midland Bank, 254 AD2d 717). A height differential of less than one inch will not be deemed a trap or a nuisance if the condition is open and apparent (Burstein v City of New York, 259 AD2d 579). The appellate courts are not reluctant to determine as a matter of law that a height differential is so trivial as to be non-actionable (Maloid v New York State Elec. & Gas Corp., 257 AD2d 712, claimant's version of the accident coupled with clear color photographs led court to conclude as a matter of law that a one-half inch to three-quarter inch height differential was so trivial as to not be actionable since the condition was open and obvious; Riser v New York City Hous. Auth., 260 AD2d 564, a one inch difference in height between slabs upon which a pedestrian might stub his toe, trip or stumble can be established by photographic evidence to be trivial as a matter of law as long as it does not have the characteristic of a trap or snare; Santiago v United Artists Communications, Inc., 263 AD2d 407, photograph showing defect coupled with expert testimony of a one-half inch depression established as a matter of law that the alleged defect was trivial; Lopez v New York City Hous. Auth., 245 AD2d 273, 274, a three quarter inch height difference between two segments of pavement is not actionable as a matter of law after "considering the exiguous dimensions of the defect").
Here, the height differential between the two involved granite flags was measured by the State's expert as between 1/8 to 3/16 of an inch. The photographic evidence and the testimony of claimant's daughter that she was able to observe and avoid the seam establishes that the height differential was open and obvious and therefore cannot be considered a trap or nuisance. Based upon the trial testimony and the photographic exhibits, the Court determines as a matter of law that the height differential between the two granite flags was so trivial as to not be actionable.

With respect to the alleged Code violation due to the absence of a second handrail, the issue of whether a building code is violated by the absence of a handrail upon a stair is a question of law for a court when the underlying facts concerning the location, construction and measurements of the stairway are not in dispute (
Gaston v New York City Hous. Auth., 258 AD2d 220). The law is settled that when a building pre-exists the Code it must conform therewith only if all alteration costs within a six month period exceed 50% of the replacement cost of the building (Cole v Emunah Gen. Contr., 227 AD2d 877; 9 NYCRR 1231.3(c)). There is no evidence in this record of any such construction which would have the effect of making the 1984 Code applicable to the landing and stairway of the south portico which was constructed between 1870 and 1875. While the Court recognizes that there may be negligence even in the absence of a Code violation (Wilson v Procters Theater & Arts Ctr. & Theater of Schenectady, 223 AD2d 826), the claimant must still establish the manner in which the defendant's negligence contributed to her injuries. If the alleged defect is readily observable by the reasonable use of the injured party's senses there is no need for a warning (Sanna v Wal-Mart Stores, Inc., ____ AD2d ____, 2000 WL 463547). Moreover, if the alleged defect in a set of steps at the State Capitol is such that the claimant herself should have observed it then her own negligence will be held to have been the cause of the accident (Loehr v State of New York, 6 AD2d 918). Finally, a claimant's "own testimony that she did not know what had caused the accident supports a finding that, as a matter of law, the allegedly defective condition was not a proximate cause of the ... accident" (Wright v South Nassau Communities Hosp., 254 AD2d 277, 278).
Upon this record, the claimant has not met her burden of establishing by a preponderance of the evidence that the absence of a second handrail constituted negligent conduct which contributed to her injuries. The absence of the handrail did not violate the Building Code. Furthermore, the existence of a handrail upon the building side of the stairway and the absence of another handrail on the opposite side were readily observable conditions that the claimant should have noted through the use of her senses and for which the State had no duty to warn. More importantly, the claimant was not able to describe to the satisfaction of the Court where upon the stairway her fall actually occurred so as to enable the trier of fact to determine that a second handrail would have prevented the accident. In particular, claimant's expert testified that if there was a second handrail it should have been located forty-four inches south of the existing handrail. Accepting the testimony that the width of the stairway was seventy-three inches, a second handrail forty-four inches south of the existing handrail would still have left a gap of approximately thirty inches to the south of the second handrail. As best the Court can discern from claimant's testimony, her fall would have occurred to the south of the second handrail had it been installed according to Code. Consequently, even had she reached with her left hand for that handrail it would have been of no assistance in breaking her fall. To determine that a second rail located forty-four inches to the south of the existing handrail would have prevented claimant's injuries would be an exercise in surmise and conjecture. Furthermore, claimant could have avoided the accident by the use of the existing handrail. Claimant has not established by a preponderance of the evidence that negligent conduct on the part of the defendant proximately caused her injuries. As a consequence, the dismissal motion must be granted.

Let judgment be entered accordingly.

May 11, 2000
Saratoga Springs, New York

Judge of the Court of Claims

[1]All quotations are from the trial transcript.