New York State Court of Claims

New York State Court of Claims

DE LOS SANTOS v. New York, #2000-016-010, Claim No. 91884


State 80% liable for slip & fall resulting in permanent bladder malfunction.

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):

Alan C. Marin
Claimant's attorney:
Bonina & Bonina, P.C.By: Tyrone F. Sergio, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, AAG
Third-party defendant's attorney:

Signature date:
April 13, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)

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 court.
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 on
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 doors
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 each direction.
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 expert).

- "The overall condition, I would say, of the center portion is poor" (def's expert).

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:[1]

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) -9]

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 ...falling on ice."

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 it rained.
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 stairs.[2]
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 (1986).
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 York, 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
PJI §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 Flynn. 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 building.
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 bladder. "
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 basic way.

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 suffering: $150,000
Future pain and suffering[3]: $650,000

Loss of Wages
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

Special Damages
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: $ 5,300
Future medication/pads: $23,300
Medical out-of-pocket: $ 4,645
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, 996

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
New York, New York

Judge of the Court of Claims

[1] The State Uniform Fire Prevention and Building Code, 9 NYCRR §600 et seq.; §1110.1 covers state agencies.

[2] 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.

[3] 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.