New York State Court of Claims

New York State Court of Claims

REID v. THE STATE OF NEW YORK, #2001-001-527, Claim No. 99600


The Court grants defendant's motion to dismiss the claim for failure to establish a prima facie case of negligence, which was made at the close of claimant's proof and on which decision was reserved.

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):

Susan Phillips Read
Claimant's attorney:
Robert L. Sims, Jr., Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Gail Pierce-Siponen, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 31, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

At approximately 10:55 on January 9, 1997, claimant Gilbert Reid ("claimant"), a paraprofessional employed by the New York City Board of Education, arrived at the gymnasium at the Roberto Clemente State Park with students from the school at which he worked, who were scheduled to attend a puppet show there along with students from other public schools from the five boroughs (T 6-8, 45[1]
; DT-L 7-8[2]). Shortly after his arrival, claimant walked into and struck his head on one of the gymnasium's basketball backboards, which he alleges was positioned "negligently low" (claim filed on January 7, 1999 [court exh. 1]), and suffered injuries for which he seeks damages from defendant State of New York ("defendant" or "the State").
As a paraprofessional, claimant was assigned to assist the classroom teacher and, on the occasion of this particular field trip, he was charged with watching over two SIE ("Special Instruction Education") students, whom he described as "retarded . . . with behavioral problems" (T 9) and difficult to control and maintain (T 21). Accordingly, when claimant entered the gymnasium he looked for seating in the bleachers where he felt that his two students "would be most comfortable" and "[i]n order for them to have comfort, they needed as much privacy as possible" (T 22). In other words he looked for an area of the bleachers where fewer students were seated and so chose to sit in an upper row (
id.) Specifically, he testified that
because of the behavior problems that the two students had, I left one student at the bottom of the bleachers, and accompanied one up to a higher level. I set [sic] the student about three feet in from the edge of the bleachers, from the edge of the walkway, and went back down to get my other student who had gone off in some direction. I ran and got him. We went back up, and the one that I had set [sic] three feet in had moved to the edge, making it impossible. . . .

blocking my entrance. I figured that it would be too difficult to get him to move. I tried, but he gave me some resistance, so I abandoned the idea. I took the other student and decided to go behind the bleachers where he was sitting, and I entered the walkway, holding the student's hand that I wanted to sit. We walked--went into the walkway and started in behind him. I was looking back at the student while holding his hands and pulling him, and I turned. I was walking fast, but when I turned, I turned on a back--the corner of a basketball backboard, hitting my head. My intention was to carry the student behind the one that was sitting and lift him, and that way, we could both sit on the same seat that--where the student was already seated. I was going to lift him in to the seat from behind and sit in the middle myself
(T 9-11).
The basketball backboard that claimant walked into, striking his head on the corner of it, was a "regulation" size, roughly four feet by two and one-half feet by his estimate and white in color with a red basketball rim mounted on it (T 23; claimant's exhs. 3 and 4). Claimant did not notice the backboard on his trips up and down the bleacher's walkway (T 24-25), but he did not suggest that the backboard was anything other than plainly visible. Claimant's other witnesses, Myrna Talbot and Robbin Walker ("Walker"), who were both in the gymnasium at the time of the accident, noticed the backboard (T 48, 66), which they described respectively as "[q]uite big" (T 49) and "very big" (T 66).

Although claimant had previously given a different account of how his accident occurred (T 28-31; court exh. 2 and defendant's exh. A; see also, T 48), he repeatedly testified at trial that he walked backwards into the backboard without looking where he was going. Specifically,
Q Okay. Now, you said you came up the walkway and then you walked in behind the student who was sitting on the bleachers.

A Yes.

Q All right. Now, then you said you turned, can you explain that portion again, please, what had happened exactly.

A Yes. I was holding the student's hand and looking back at him. I was not looking in the direction in which I was moving
(T 11).

Q In what position were you?

A I was in an upright walking position. However, I think I could have been just a little slouched because I had a shorter student. The student is shorter, I had his hand, and I was pulling him behind me, but I was looking at him also.

Q Okay.

A I wasn't looking in the direction in which I was moving, and I was moving fast.

Q M-m h-m-m.

A When I did turn my head, I turned it and hit the bottom of a basketball backboard
(T 12).
Q How close were you--now, were you standing still or were you moving your legs when you struck--your head struck the backboard?

A I was moving my legs, and I would say that my head was probably projected forward--

Q M-m h-m-m.

A --because I was pulling the kid from the back
(T 25).
Q --at the time that you were--just before you hit your head on the corner of the backboard, as you just testified to, were you facing in the direction of the backboard or were you facing away from the backboard?

A I was facing away from the backboard, looking at the student that I was pulling behind me.

Q Okay. So you were looking in a direction opposite from the way you were walking, is that correct?

A Yes, I was. M-h h-m-m
(T 38).
I. Discussion
A landlord is not the insurer of the safety of those coming onto the premises. Rather, a landlord's duty is only to maintain the property in a reasonably safe condition in view of all the circumstances, with foreseeability as a measure of liability (
Basso v Miller, 40 NY2d 233). The claimant bears "a very fundamental and necessary burden" to show a dangerous or defective condition because of which defendant should have foreseen the reasonable possibility of injury to users (Allen v Carr, 28 AD2d 155, 157, affd 22 NY2d 924), yet failed to remedy or warn in a timely fashion (Basso v Miller, 40 NY2d 233, 241, supra). A landowner has no duty to warn of an open and obvious danger that can be readily observed by the use of one's senses, however (Tagle v Jakob, 2001 NY LEXIS 3465); "[u]nder such circumstances, the condition is a warning in itself" (Tarricone v State of New York, 175 AD2d 308, 309).
Further, where a dangerous or defective condition exists, notice is a prerequisite to finding the landowner liable. Specifically, the landowner either must have created the dangerous or defective condition or must otherwise have actual or constructive notice of it (
Batiancela v Staten Island Mall, 198 AD2d 743; Browne v Big V Supermarkets, Inc., 188 AD2d 798). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it"; a general awareness that a dangerous condition may exist is legally insufficient to create constructive notice (Gordon v American Museum of Natural History, 67 NY2d 836, 837).
Next, the dangerous or defective condition must be a substantial factor in bringing about the claimant's injury (PJI 2:70;
Boltax v Joy Day Camp, 67 NY2d 617). Such is not the case where the claimant's own culpable conduct is the sole cause of the injuries sustained (2 NY PJI 259; see also, Iwaszkiewcz v Callanan Industries, Inc., 258 AD2d 776; Daversa v Harris, 167 AD2d 810).
Finally, a claimant bears the burden of proof by a fair preponderance of the credible evidence (
see, PJI 1:23). The trial court, in its capacity as trier of facts, must view the witnesses and consider their statements upon direct and cross-examination in determining whether each witness is credible and the weight, if any, to be given to the evidence (see, PJI 1:8, 1:22, 1:41; see also, Johnson v State of New York, 265 AD2d 652; DeLuke v State of New York, 169 AD2d 916).
Here, claimant tries to establish a dangerous or defective condition of which defendant had knowledge by virtue of a purported admission of the State's former employee, Luis Lugo ("Lugo"), the assistant recreation director at Roberto Clemente State Park (DT-L 4-6) at the time of claimant's accident, to Walker, who recounted the following conversation with him[3]
I asked him, I says, look, these things are pretty low and you have the stands going up in there, and it looks like they could be moved back because we were there on other occasions where we didn't even see these things sticking out. So I says, well, why didn't they push this stuff back. He says, well, I told them to do that but they don't listen, they didn't do it. . . . I says, why wouldn't you--and I wasn't the only one who asked. It was a common question. The things go back, why weren't they back. No one put these things back. It could have been a kid that walked into this stuff because it was just that low. So he says, I don't know, miss, they just don't do what they're supposed to do; they pulled out the bleachers and that was it, they didn't do the rest of the things that they were supposed to do
(T 61-62).
Claimant's theory, however, suffers from two fatal deficiencies. First, Lugo testified that on the day of an event in the gymnasium at Roberto Clemente State Park, the retractable bleachers are pulled out from the northeast wall by means of an electronic control and the two basketball backboards near these bleachers (there are six backboards altogether) are raised manually by means of a crank (DT-L 8-11); and that both of these backboards had, in fact, been raised prior to claimant's accident (
id.; see also, DT-L 16, 18). When asked "Do you recall making the statement to Mr. Reid [not Walker] that normally the backboard would you [sic] have been up, but you thought it would be all right?", he answered "No, I don't recall that," and reiterated that both backboards were raised at the time of claimant's accident (DT-L 16). In any event, the hearsay statement of an employee is not admissible against an employer as an admission unless the proponent of the statement can demonstrate that the admission was made within the scope of the employee's authority (Loschiavo v Port Authority of New York, 58 NY2d 1040, 1041; see also, Tyrrell v Wal-Mart Stores, Inc., 2001 NY LEXIS 3421), and claimant has failed to establish that Lugo (assuming he was the unidentified employee who made the statements testified to by Walker) had the authority to speak on behalf of the State.
More to the point, claimant injured himself because he walked backwards "moving fast" (T 12) while looking at and struggling with a fractious child. As a result of not looking where he was going, he walked into and struck his head on the basketball backboard, a large and obvious feature of the gymnasium. As noted previously, a landowner has no duty to warn of an open and obvious danger (assuming the basketball backboard, whether or not raised to its highest possible position relative to the bleachers, may properly be characterized as a danger) that can readily be observed by the use of one's senses (
see, Tarricone v State of New York, 175 AD2d 308, supra [claimant climbed onto and fell off a ledge overlooking a river]; see also, Poerio v State of New York, 144 AD2d 129 [claimant bicycled under a press box and hit a crossbeam]; Russell v Archer Bldg. Centers, Inc., 219 AD2d 772 [customer tripped over bottom rail of partially filled display rack when she backed into it while viewing merchandise on opposite side of aisle]). In view of these circumstances, any hazard posed by the basketball backboard was open and obvious and claimant's own culpable conduct was the sole cause of any injuries that he sustained when he walked into it.
II. Conclusion
Based on the foregoing, the Court now grants defendant's motion to dismiss the claim for failure to establish a prima facie case of negligence, which was made at the close of claimant's proof and on which decision was reserved. The Chief Clerk is directed to enter judgement accordingly. Any other motions on which the Court previously reserved judgment or which were nor previously decided are denied.

December 31, 2001
Albany, New York

Judge of the Court of Claims

[1]Numbers preceded by the letter "T" refer to the corresponding page(s) in the transcript of the liability trial.
[2]Numbers preceded by the letters "DT-L" refer to the corresponding page(s) in the transcript of the deposition of Luis Lugo (Court exh. 3).
[3]Actually, Walker does not recall the name of the male State employee with whom she conversed. She identified her interlocutor as a Hispanic male who "was directing" (T 57; see also, T 58-60, 67-69).