DE LOS SANTOS v. New York, #2000-016-010, Claim No. 91884
State 80% liable for slip & fall resulting in permanent bladder
RAQUEL DE LOS SANTOS
DE LOS SANTOS
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Bonina & Bonina, P.C.By: Tyrone F. Sergio, Esq.
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, AAG
April 13, 2000
See also (multicaptioned
Raquel De Los Santos alleges that on October 12, 1993, as a consequence of
defendant's negligence, she fell on a staircase just inside the state office
building located at 80 Centre Street in Manhattan. At the time, De Los Santos
was employed by the District Attorney of New York County working with assistant
DAs on arraignments in the courtroom and ensuring that the computer system
reflected what happened in court.
Claimant's office was at 80 Centre Street; the courthouse is close by at 100
Centre Street. Claimant worked a four-day schedule late into the evening, from
4 p.m. to 1:45 a.m.
That October day, De Los Santos reported for work just before 4 p.m. Typically,
she would start working at data entry for an hour in the offices of the DA at 80
Centre, but that afternoon was assigned immediately to
Claimant went down the elevator and passed through a set of doors to a stairway
that led to the street -- this was the 10 Hogan Place entrance. In addition to
Hogan Place and Centre Street, the state office building had a third entrance
Worth Street; as the most direct route to the courthouse, 10 Hogan Place was
the busiest of the three. It was raining and had been raining for at least 12
hours. De Los Santos walked down the left side of the middle section of the
stairway, holding on to the railing with her left hand; in her right hand was
an umbrella and pocketbook. Wearing leather shoes, she was looking ahead
through the set of doors leading outside to see what the weather was like.
Claimant took a few steps, stumbled and slid down the stairs, suffering a spinal
injury that affected her bladder.
The seven-step staircase in the small vestibule between the two sets of
was divided by a pair of railings into three segments -- a center section 5
½ feet wide, flanked by two sections each 4 feet in width. There were two
sets of four doors at street level and at the top of the staircase, but because
most of them were customarily not in service, pedestrian traffic was directed
toward the middle section of the staircase, which was considerably more worn
than the outer sections. Moreover, also due to the positioning of the available
doors, the traffic in the middle section of the stairs tended to bear left in
These steps were made of marble. Over time, marble will become even smoother
with wear, and defendant's expert conceded that marble is "known to be slippery
when wet in many cases." Consequently, built into the surface of the marble was
a slip resistance substance: i) as "nosing" at the edge of each step and ii)
in narrower strips inlaid lengthwise, two per step (cl exh 7D). Nonetheless,
the nosing and strips are themselves subject to wear. In addition, years of
foot traffic had worn down the steps to a scooped or dished-out condition near
the railing claimant had used.
There were no known eye-witnesses. De Los Santos testified that:
As I was
going down the stairs to relieve the court part specialist, I took I believe
three steps and I fell, I slipped, I fell backwards, and I slipped all the way
down the stairs to the bottom of the steps.
Claimant said she had slipped on the third step from the top which, like most
of the steps, was wet, but could not recall whether there was water on the top
step. Claimant confirmed that she descended "right foot, left foot, right
foot". I conclude from the credible evidence that claimant's right foot slipped
on the third step, and she was holding onto the railing at the time. The right,
rather than the left foot, puts her closer to the dished-out area.
* * *
At trial, each party put an engineering expert on the stand. Claimant called
John Fruin and the defendant, Harlan Fair. Both described the middle staircase
section as in questionable condition:
- "[It is in] total disrepair and has been poorly maintained" (cl's
- "The overall condition, I would say, of the center portion is poor" (def's
According to claimant's expert, the stairs were not sufficiently level or slip
resistant, and the height between stairs varied too much as a consequence of the
dishing-out effect. Fruin viewed the condition as "a textbook" violation of the
State Building Code:
Treads shall be set level and true, and top surfaces shall not vary more
than one-eighth of an inch in any run. Risers
shall not vary more than
one-eighth inch in height on any run. Stair treads and landings shall be
provided with nonslip surfaces. [9 NYCRR § 765.4(a)
Fruin testified that the steps were "not level and true because of the erosion
pattern which, in some areas, is as much as a half-inch depression. The
friction strips on the edges of the steps are worn away from heavy use, and also
the nosings of a few steps, the nosings are a very important aspect of stair
movement ...where you have your weight balance on one foot, your foot is rolling
around the nose, and if there is a missing piece of nosing, even a very small
missing piece of nosing, it can throw your foot off while you're trying to
balance on just one foot.... You need a level surface for your weight transfer
when you put your foot down."
Claimant's expert stated that the third step was a dangerous condition which
was a substantial contributing factor to De Los Santos' slip and fall. He
assumed claimant's right foot landed on
the third step, but not necessarily that she stepped on the dished-out part of
that step. Fruin explained, "Well, [the third step down] presents an unusual
task from a human factors terms. On your left foot, you have -- the friction
strip is still there so you have good friction, and it's fairly level ... and
your right foot would be experiencing something completely different. There's a
missing friction strip and it's dished down and worn away. So you have
different riser heights ...we imprint the stair in our first couple of steps,
and we then adjust accordingly. Here you have a situation that's virtually
impossible to adjust [to] because of variable conditions. Left foot, right
foot, you know, it's almost like saying your left foot doesn't know what your
right foot is doing..."
A different conclusion was reached by Harlan Fair, the defendant's expert
engineer, whose opinion was that the condition of the steps did not cause De Los
Santos' fall as she recounted it. However, at no time has the defendant
disputed that the stairs were not in compliance with the State Building Code.
According to defendant's expert, such a fall, in which claimant's feet went out
from under her, could only occur in one of three other ways:
i) In the case of a narrow step, the walker oversteps and her foot slides
off the nosing resulting in a fall; but Fair described the 12-inch step surface
at 80 Centre as "a very wide tread".
ii) The slope on the tread is
downward so that if it became slippery, the result would be a "ski jump effect
which would slide the foot out." That was not the case here because the tread
has been worn in the center by people hitting the center with the ball of their
foot: "there's a little valley there so, if anything, the slope is not
contributing to that kind of a slip where the foot goes outward, flies outward,
and the individual is laying out in the air on their back...like ...falling on
iii) "If there's no nosing, and it's very slippery, and ... no
anti-slip device at all, it would be possible for the person to step down with
their foot and have the foot go out. But I must say that this is not an accident
where the foot has been planted on the step and the individual is going forward,
because if that were the case, if the individual were stepping with one foot on
the third step and stepping forward and starting to swing the other leg over and
that foot slipped backwards...that fall would have the individual going straight
out face down."
Defendant's expert contrasted the short vestibule at 80 Centre Street with a
building "having a long lobby where you can roll out a nice, long carpet to
absorb the water as it comes in." The maintenance staff of the building was
well aware of how wet the stairs at the 80 Centre entrance could become.
Jorge Rangel, the maintenance supervisor at the building, explained: "On rainy
days, it was a routine for all the State employees under my supervision to put
mats on all exits and mop the areas, especially Hogan Place, there there was
more traffic... [and place y]ellow signs that would read ‘Wet Floors'".
He added that the mats were rubber and placed at the top and bottom of the 10
Hogan Place entrance.
Initially, Rangel said that a maintenance worker would be stationed at an
entrance "constantly throughout the day." But on cross: "Q. So they would mop
up one area, and then they would leave and go to the other entrance. A. Right.
But they would spend more time on this, you know...the other areas would not get
the amount of water that this place would get."
The witness, in my view, was not initially being evasive; rather, he was
trying to reconcile the problem of assigning his staff throughout the building
with his experience that the Hogan Place entrance had the biggest problem when
Note also that claimant fell at around 4:00 in the afternoon. Not only are the
maintenance personnel moving from one entrance to another, but claimant's fall
may have occurred during or just after a change in shifts – Rangel did
have a night crew that could continue mopping until midnight.
One additional matter should be briefly touched upon -- the lighting in the
vestibule, which was the subject of testimony on both natural light coming
through the outer, windowed doors and the electric illumination. This testimony
was inconclusive, and the lighting condition will not be a factor here.
* * *
Sufficient credible evidence has been adduced that claimant would not have
fallen were it not for the condition of the
The steps -- and the third step -- were wet and, in violation of the State
Building Code, that step was not level and had its slip resistant material
largely worn away. A violation of the State Building Code can be some evidence
of negligence to be considered together with the other evidence, provided the
violation was a substantial factor in bringing about the fall. PJI
§2:29; Wagner v Kenific
, 161 AD2d 1092, 557 NYS2d 650 (3d Dept
1990). The defendant had actual notice of this longstanding condition.
According to Rangel, the dished-out portion was the same as when he started work
there in 1981. His testimony was a little unclear as to whether the nosing and
non-skid strips were as worn in 1981 as in 1993, but their wear was certainly
visible and apparent for quite some time before 1993. Compare with Gordon v
American Museum of Natural History
, 67 NY2d 836,
501 NYS2d 646
The building had a plan in place to mop "continuously" and put down mats and
signs yet, from the credible evidence, the defendant did not implement its own
plan on October 12, 1993. There was unchallenged testimony that when claimant
fell, there were no yellow signs, nor a mat at the top of the stairs. In fact,
when Fruin visited the site a month later on a day he described as having rainy
periods, he saw no warning signs and only a mat at the foot of the stairs. The
day Fruin did his inspection may have had only sporadic rain, but that is the
point. The procedure for ensuring that the stairs were safe on rainy days was
an ad hoc
one. Ironically, as a general proposition, the law of torts
imposes no obligation to continually mop rain, moisture or slush from snow
because of a recognition of how difficult such task can be, especially while the
precipitation is ongoing. Negron v St. Patrick's Nursing Home
, 248 AD2d
687, 671 NYS2d 275 (2d Dept 1998); Kovelsky v City University of New
, 221 AD2d 234, 634 NYS2d 1 (1st Dept 1995).
The cost and disruption of repairs would not have been unreasonable in view of
the danger comprehended by the State Building Code (see
§2:12). The condition of the steps did not require construction
of an entirely new staircase. Fruin suggested "you would fill in the spaces..."
and then place "new metal tread surfaces on top of the marble...that's a
quick....relatively inexpensive fix." The defendant's expert similarly
remarked: "resurface it with another plate on all treads down the center area."
Disruption would be minimal; the outer sections of the stairway, described as
pristine, could be fully utilized.
But what of Ms. De Los Santos who negotiated these stairs without incident for
nine years? Nor was there evidence of any prior such accidents. Was she not
under a duty to keep a "known danger in mind"?
Flynn v City of New York
, 103 AD2d 98, 102, 478 NYS2d 666, 669 (1984).
Again, the defendant had notice of the condition. This is not a highway design
case in which a qualified immunity of the State can be called into question by
the accident history. See Friedman v State of New York
, 67 NY2d 271, 502
NYS2d 669 (1986) involving a history of certain highway crossover accidents.
Further, the physical condition of the steps can credibly be viewed as subtle,
affecting balance perhaps more than the typical obstruction or hole as in
With that said, claimant must bear some of the
responsibility. She testified she would normally come into the office and work
on the computer entering data for an hour before being assigned to the
courthouse. On October 12, 1993, De Los Santos was directed to go right to
court. She was likely hurrying to some extent, her right hand holding an
umbrella and pocketbook and she was looking straight ahead, not down, to see if
it was still raining, even though she had just come into the
In view of the foregoing, I find the defendant negligent for claimant's fall
and the resulting injuries, with its responsibility partially shared with
claimant, whom I find 20%
De Los Santos complains of a bladder malfunction as well as back and shoulder
pain. The back and shoulder pain was not medically substantiated; no expert was
called. Moreover, claimant was in an automobile accident a few years before,
suffering, she "believed", neck and shoulder injuries. No credible proof was
offered at trial on claimant's back or shoulder. Consequently, the only injury
at issue is the one to her bladder.
Claimant called as a witness, Dr. Robert Gluck, a urologist who saw claimant
half a dozen times over a five-year period, most recently in May of 1998.
Defendant did not present any medical witnesses. Gluck testified that De Los
Santos had a neurogenic bladder which was caused by her fall. The fall injured
the spinal cord and the nerves failed to properly regenerate, which is "sedating
to the bladder...If the nerves get injured it's common to develop an unstable
It is a permanent condition; Gluck explained that if a spinal cord injury
condition did not improve over the five-year period he had seen claimant, it
will never improve. At the time of the fall, claimant did have diabetes, but
Gluck stated that such was unrelated to her bladder problems. The neurogenic
bladder meant problems of frequency, urgency and incontinence. Her frequency of
urination was every half-hour; "urgency is the feeling that you have to run to
the bathroom and incontinence is leakage...urine leaks out uncontrollably."
Claimant was placed on medication (Tofrinal)
, but when last seen in 1998 still had symptoms of frequency, urgency and
leakage. Gluck concluded De Los Santos would need medication the rest of her
life and would have to always wear pads in an effort to keep dry. In addition,
De Los Santos developed a fungal infection in her groin area, which was treated
with the drug Mycelex.
Claimant's bladder problems began immediately -- on the day of the fall. The
medication only slows the flow. She urinates without warning, as often as every
15 or 20 minutes and wears bladder pads 24 hours a day, but they are not fully
absorbent. She gets up three or four times a night because the pads are soaked;
her mattress also requires a covering. Finally, the medication and pads do not
prevent a noticeable odor of urine.
After initially missing work for half a year, De Los Santos tried to return but
lasted only a few months. Her condition made work difficult, if not
impossible. In that vein: " I was very active, I walked miles, I was bowling
with a group...I was very active and I don't have now a social life. I don't
dare go out much for fear of having a bladder accident...everywhere I go I have
to find a bathroom and change ... At church, I have to sit at the back of the
church because sometimes it leaks...when I don't want to miss the sermon and
I'll sit and then it just leaks, and then I have the embarrassment of the wet
pants or clothing..."
Pain and Suffering.
This is a permanent condition that has a round-the-clock effect in the most
Born September 1, 1945, De Los Santos is now 54 years old and has a life
expectancy of 27.7 or 28 years. Thus, I find:
Past pain and
Future pain and
The totality of the testimony was that claimant's salary at the time of injury
was $22,631; at her current age, claimant has a working life expectancy of 7.7
or 8 years:
Past loss of wages: $147,000
Future loss of wages $181,000
Consistent with the decision on liability, the only medication or related
supplies subject to special damages is that arising from her neurogenic bladder.
This includes aminopyrine for bladder control and the pads for absorbency. The
credible testimony set out the cost for aminopyrine at $23 for a 20-day supply,
and the use of two boxes of absorbent pads at $8 per week, both for a lifetime
of use. No cost figure has been supplied for Mycelix which is taken for skin
irritation, and no medical testimony was received on its nature and duration.
It will not be included in special damages.
Moreover, claimant incurred $4,645 in out-of-pocket medical expenses detailed
in claimant's exhibit 9.
Special damages in the amount of:
Past medication/pads: $
Future medication/pads: $23,300
Medical out-of-pocket: $
Total damages of $1,161,245
Claimant's proportionate share of liability was twenty (20) percent; and
accordingly, the damage award in favor of Racquel De Los Santos is $928,
The Chief Clerk is directed to enter judgment for the Claimant in the amount of
$928,996 to be held in abeyance pending a CPLR Article 50-B hearing which the
Court will schedule.
All motions not previously ruled upon are deemed denied.
April 13, 2000
HON. ALAN C. MARIN
Judge of the Court of Claims
The State Uniform Fire Prevention and
Building Code, 9 NYCRR §600 et seq.
; §1110.1 covers state
It is likely unnecessary to decide whether De
Los Santos stepped in the dished-out area. In view of the testimony on the
location of the wear pattern and that she could have held onto the railing and
walked at some distance from it, I would conclude by a preponderance of the
evidence that she placed her foot in the depression or on its edge. In any
event, the dished-out area probably had an impact beyond its contours because
the effect is akin to a catch basin's overflow.
The burden is on the defendant to show that a
medical procedure could mitigate the damages; the only such reference was from
Dr. Gluck who mentioned an implanted bladder pacemaker, but principally in the
context of DeLosSantos' condition worsening. No showing was made that the
reasonably prudent person in claimant's position would have undergone this
operation per PJI §2:325.