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
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Law Offices of Nora Constance MarinoNora Constance Marino, Esquire
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, Esquire
Assistant Attorney General
May 11, 2000
Affirmed - Third Dept., 8/2/2000
See also (multicaptioned
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:
Are you right-handed or left-handed?
I am left-handed.
When you normally go downstairs, which side do you normally go to?
Automatically always to the left.
What did you do when you felt yourself beginning to fall?
Well, I reached for the banister, and it wasn't there. It was at the - -
And what happened after that?
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
. 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
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
.), 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
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
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:
All right. Well, then you can clarify it for me. What are you basing it
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.
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
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
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,
". . .'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,
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
, 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
, 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,
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
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
All quotations are from the trial