New York State Court of Claims

New York State Court of Claims

PRISCO v. THE CITY UNIVERSITY OF NEW YORK, #2001-001-530, Claim No. 99374


Synopsis


Claimant has not proved by a fair preponderance of the credible evidence that a dangerous or defective condition existed and caused her to fall and suffer injuries, or, in the alternative, that CUNY had constructive notice of any dangerous or defective condition that may have existed; therefore, the claim is dismissed.

Case Information

UID:
2001-001-530
Claimant(s):
ANGELA PRISCO The Court of Claims has no jurisdiction to hear claims against individuals or entities except the State of New York and certain other entities specified by statute; therefore, the caption has been amended, sua sponte, to reflect the only proper defendant here (see, Education Law § 6224 [4]).
Claimant short name:
PRISCO
Footnote (claimant name) :

Defendant(s):
THE CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :
The Court of Claims has no jurisdiction to hear claims against individuals or entities except the State of New York and certain other entities specified by statute; therefore, the caption has been amended, sua sponte, to reflect the only proper defendant here (see, Education Law § 6224 [4]).
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99374
Motion number(s):

Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
John J. Appell, 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:
January 14, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
While a student at the College of Staten Island ("the College"), a senior college of the City University of New York ("CUNY"), claimant Angela Prisco Klayman ("claimant") injured her left knee at approximately 10:00 p. m. on January 10, 1998 when she fell down the steps of an aisle of the empty bleachers of the College's main gymnasium shortly after the conclusion of the basketball game played there that evening (T 12-15, 53-57).[1] As a student-athlete (a tennis player) who worked for the College's Auxiliary Services, claimant had set up and operated the shot clock during the basketball game, and had just begun post-game clean up when she fell, an accident that she attributes to an alleged dangerous and defective condition of the bleachers of which CUNY had constructive notice (T 14, 38, 97-98; claim, filed November 30, 1998).
I. Testimony
A. Claimant's testimony
The College's main gymnasium, where both classes and spectator events take place (T 64-65;
see also, T 108), is outfitted with a full-size basketball court with a pair of automatically controlled retractable bleachers (T 15, 33; see also, T 102). The bleachers are fully or partially deployed for spectator events, but at other times are closed up against the wall (T 33, 42; see also, T 105-108, claimant's exh. 6; compare T 71-72 with T 107). The bleachers' plank seating is plastic; its stairs and aisles are wooden (T 42-43; see also, T 134-135, claimant's exhs. 5 and 6).
Two vending machines are located in the hallway outside the entrance to the main gymnasium; these machines dispense soda, juice, water, iced tea and Gatorade (T 27-28, 69-70;
see also, T 108-109, claimant's exh. 7). In addition, at the time of claimant's accident the College's softball and baseball teams operated a concession stand in the mezzanine outside the main gymnasium where refreshments, including hot dogs, soda and candy, were sold during basketball games (T 68-69; see also, T 109-113).
Claimant, who had worked at six previous basketball games during the season (T 65, 79), arrived at the main gymnasium at roughly 6:30 p.m. for a 7:45 p. m. tip-off (T 38). The retractable bleachers had already been pulled out for the game, and claimant's job that evening as an employee of Auxiliary Services was to "set up the shot clock, make sure it was working at the time, and basically, [to] sit at the shot clock and operate it" (T 39) as well as to set up chairs and then to put away the shot clock and chairs and to clean up as directed after the game (T 82;
see also, T 98-101).
The shot clock was set up on the scorer's table, located at mid-court in front of the bleachers on one side of the court (T 46;
see also, T 98) and directly opposite a table placed at mid-court on the other side for the athletic director and the broadcasters for Staten Island Cable, which was televising the game (T 44-48). Staten Island Cable's cameras were positioned on the floor at either end line of the basketball court (T 44-45).
Both sides of the bleachers were open for the basketball game (T 47;
see also, T 146), but claimant did not observe any of the estimated 40 spectators in attendance seated in the bleachers behind or in the vicinity of the broadcasters' and athletic director's table (T 48-49, 55). She testified that she only left the scorer's table at half-time (T 40), and that during the game her attention was focused on tending the shot clock (T 80).
According to claimant, after the basketball game ended, she shut down the shot clock and "they did the books and everything so I was sitting around talking to people around me. . . . And I had gotten up. . . . and I was going to do--because sometimes you have to put the chairs, you know, in order where the basketball team was sitting, and my supervisor had asked me to pick up a piece of paper on the other side of the bleachers" (T 50-51). Claimant's supervisor that evening was Edward Buttle ("Buttle") (T 51), and specifically, he
--well, it's funny actually, when he asked me to do this. He asked me to pick up a piece of paper on the bleacher and I said, a piece of paper, and I didn't say nothing [sic], of course, because I was just going to do it and I went up to the fourth step to pick up the piece of paper he asked me to. He didn't say on the fourth step, but he said, could you pick up that piece of paper right there, and he had walked out and went [sic] to get something. So I said [to myself], with all the papers around here he wants me to pick up this particular paper [?]
(T 52).
When Buttle gave claimant this direction, "[h]e was walking out of the gym, and he usually sat with us behind there [i.e., at the scorer's table] to make sure we didn't make any mistakes or--and he just said, Angela, could you go pick up that piece of paper for me and he just walked out the door" (T 54).
Claimant testified that she walked up the stairs of a walkway of the bleachers immediately to the left of the broadcasters' and athletic director's table about four steps and then placed her left foot down and "kind of genuflected to get the piece of paper," (T 55) which was on the floor (not the planks) of an aisle of the bleachers, about two feet to the side of the stairs (
id., T 81). In her own words, "I picked up the piece of paper. While I was turning picking up the piece of paper, my leg must have got [sic] stuck in some sticky substance or--and I just fell down to the bottom. Not to the bottom--just the bottom steps" (T 55 [emphasis supplied]) where "my knee hit against the bottom--the last step of the bleacher. . . . " (T 57); and "my [left] foot just got stuck. It was like cement. Like I couldn't maneuver anything, and I just fell. It had to be some of kind of--when--after I had fallen, I looked back and when they--the trainer came in I looked back and I saw--there was [sic] footprints all over the place. It was all black so I figured it was black substance. I am not sure if it was black, but it had to be juice or soda or some sort of substance" (T 56 [emphasis supplied]); and "I was attempting to move. I didn't stop. I just picked up the piece of paper, turned and was ready to step down to get off the bleachers. . . . My foot just stood there and it twisted and I fell down the bleachers" (T 56-57). Claimant was wearing rubber-soled flats at the time (T 53).
Although claimant acknowledged that she was unaware of "what [her] foot got stuck in" prior to her accident (T 56), afterwards she observed that "it was black footprints all around the area that I had fallen, but the area that I did fall, I noticed a big black--there was a footprint that had to be about maybe--I'm not sure the width. . . . " (T 58). When asked "[W]as that the liquid that was black, or was it the wood that you were stepping on that was black?" claimant responded that "It had to be the wood that I was stepping on that was black because a lot of parts of the bleachers were black like this--. . . . picture here" (T 58-59), referring to claimant's exhibit 3, a photograph that her counsel stipulated had been taken by his investigator in mid-April 1998 (T 31) of an area of the bleachers other than the exact location where claimant had fallen the previous January.[2]
Claimant described the floor of the bleachers where she fell as blackened and dusty, similar to the condition claimed to be portrayed in claimant's exhibit 4, another photograph taken by her counsel's investigator in mid-April 1998 (id.) of an area of the bleachers other than the exact location where she fell (T 60-63). When subsequently asked whether the substance, the floor or something else was black, claimant responded that the "[t]he wooden floor is black. It looks like a footprint and it had to be a sticky substance either on top of it or underneath it that made me get stuck to it" (T 68 [emphasis supplied]); and further that "it was black all over the bleachers" (T 87), that the substance was dry, not wet, and, to her knowledge, the substance did not exhibit any wetness at all (T 87-88; see also, T 82; but cf., T 87). There were no witnesses to claimant's accident (T 73).
Claimant also testified that she returned to the main gymnasium a few days after her accident to ask the trainer, John Nostro ("Nostro"), to fill out an accident report as requested by her insurance company (T 74-75). This accident report (claimant's exh. 1), however, was dated January 10, 1998, the date on which the accident occurred (
see also, T 122). The report, which claimant signed, describes her accident as follows: "[Claimant] twisted her [left] knee as she fell down the bleacher steps walking" (claimant's exh. 1, T 82-83).
The claim verified by claimant on November 20, 1998 alleges that she "was caused to slip and/or trip and fall due to [CUNY's] negligence . . . in failing to remove debris and wetness. The incident occurred when the claimant was caused to slip and fall on debris and/or wetness on the fold away bleachers which had become and remained on the bleachers from a prior basketball game and which was never cleaned prior to the claimant's accident" (Court exh. 1, ¶ 4; T 84).

Finally, claimant's verified bill of particulars dated April 20, 1999 states the following in relevant part: that CUNY was negligent "in failing to remove garbage and debris from the bleachers; . . . in failing to warn the [claimant] of a wet, slippery and debris strewn condition; in allowing old debris to remain on the bleachers" (claimant's exh. 2, ¶ 8); that "claimant was caused to slip and fall on crushed debris which was compacted when the bleachers had been closed and/or from patron traffic from a prior event in the gym. The debris became extremely slippery by virtue of it[s] being flattened and smooth and produced a hazardous condition" (
id., ¶ 9); and "that the debris was present since the last event in the gymnasium when the bleachers had been opened and utilized. Upon information and belief the debris existed for approximately one week[']s time" (id., ¶ 11) (T 85-88).
B. Buttle's testimony
Buttle, a long-time College employee (T 94, 134) who held the position of equipment manager at the time of claimant's accident (T 94-96), was responsible for readying the main gymnasium for the basketball game, including making sure that all the necessary equipment and uniforms were on hand (T 95). He routinely inspected the bleachers both before and after each basketball game or special event held in the main gymnasium to check for any spillage or debris that needed to be cleaned up (T 113-119, 142-144). Cleaning the bleachers was "the last thing" that Buttle did after a basketball game (T 119, 143): Buttle made sure that all the equipment had been properly stowed and faxed game statistics to the local newspapers (T 119, 128-129) in addition to inspecting and cleaning first the floor and then inspecting and cleaning the bleachers before closing them up (T 107, 119, 143-144); he acknowledged that he might delay mopping the bleachers until a day following an evening event (T 127-130, 143-144).

Buttle testified that it was up to him to decide when the bleachers were dirty enough to require wet mopping, a one and one-half to two-hour task that he usually performed himself (T 127-131, 150-153), but that he dry or "dirt" mopped the bleachers before every event (T 130-131, 149). He insisted that a dried-up sticky substance could not have been present on the floor of the bleachers on January 10, 1998 from a prior event, as claimant hypothesized: "If the game before it was--it was like you [claimant's counsel] said it was sticky, black and all that, that means before that game [on January 10, 1998] would have started, I would have wet mopped them [the bleachers], yes. I would have wet mopped them before that game started" (T 152).

Buttle sat at the scorer's table during the basketball game of January 10, 1998, keeping track of game statistics (T 98). He was finishing up the "stats" when he became aware that claimant had fallen to the floor on the opposite side of the main gymnasium (T 101-104, 137). He does not recall having asked her to pick up a piece of paper, and offered that he would not usually "just . . . tell a kid to go pick up that piece of paper. I say--when I say clean, that means clean" (T 155;
see also, T 103-104). Buttle signed the accident report (T 144-145; claimant's exh. 1); he and claimant never spoke about her accident (T 156); and she never told him that she had fallen because she slipped on any substance in the bleachers or that her foot had gotten stuck in some substance in the bleachers (T 145, 155-156), nor did she complain to him at any time about any "sticky stuff' or "slippery stuff" on the bleachers' floors (T 144, 146, 154). Finally, Buttle did not know of any other slip-and-fall accidents in the bleachers (T 145).
II. 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, 189 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; see also, Johnson v State of New York, 265 AD2d 652; DeLuke v State of New York, 169 AD2d 916).
In this case, claimant hypothesizes that a spectator sitting in the main gymnasium's bleachers at an event held prior to the basketball game played on January 10, 1998 (or perhaps a student who was attending a class or program in the main gymnasium, since claimant contended that the bleachers often remained open between basketball games [T 71-72]) spilled a sugar-laden liquid, probably juice or soda purchased from one of the vending machines in the nearby hallway or from the concession stand in the mezzanine; that a spill could not have occurred during the basketball game on January 10, 1998 because whatever she stepped in was dried up and sticky and because she did not observe anyone sitting in the bleachers where she later fell; and that Buttle failed to detect or clean up this tacky residue before the basketball game started, as he should have. This scenario, however, is hardly the only possible explanation for claimant's accident and depends at a minimum on the credibility of her testimony about what caused her to fall, which was not only uncertain in the telling but also quite different from her prior accounts.

Specifically, the contemporaneous accident report (claimant's exh. 1) indicates that claimant twisted her left knee when she fell while walking down the bleachers' steps. There is no indication that she caught her foot in a sticky substance, lost her balance and fell. Admittedly, Nostro, the athletic trainer who examined and treated claimant at the scene of the accident, completed the report either that night or a few days later; however, claimant was the only possible source of Nostro's information about the circumstances of her accident (T 73), and she signed the report. Moreover, claimant does not seem to have mentioned the sticky substance to Buttle (whom claimant testified she drove home after her accident [T 51, 73]), Nostro or any of the other people apparently present in the main gymnasium when she fell (T 72-73), or to have warned them about any condition causing treacherous footing in the bleachers.

Next, the claim (Court exh. 1), verified by claimant, and the verified bill of particulars (claimant's exh. 2), both presumably drafted by counsel based on information that claimant supplied, attribute her accident to debris and crushed, slippery debris and a wet, slippery condition of the bleachers. Neither hints at the presence of a dried-up but sticky substance as the cause of her accident.

Finally, claimant's testimony was neither definite nor convincing. She repeatedly qualified what happened and what she saw; e.g., "my leg
must have got [sic] stuck in some sticky substance" (T 55 [emphasis added]); "[i]t had to be some kind of [sticky substance] (T 56 [emphasis added]); "I figured it was black substance. I am not sure if it was black, but it had to be juice or soda or some sort of substance" (id. [emphasis added]); "it had to be a sticky substance . . . that made me get stuck to it (T 68 [emphasis added]). At the same time, claimant insisted that whatever it was that caused her to fall was dry and sticky rather than wet or debris as alleged in the claim and bill of particulars (T 82, 88).
In short, claimant's trial testimony varies significantly from her prior accounts of the cause of her accident and much of her trial testimony on the point is tentative if not outright speculative, all of which leads the Court to conclude that she has no inkling what caused her to lose her balance and fall. Moreover, there is no evidence to corroborate any of claimant's versions.[3]
First, there were no witnesses other than claimant to the presence of any substance (whether wet or dry and sticky) on the step (or floor) of the bleachers (T 73, 76-77), which claimant herself failed to detect when she planted her foot on the fourth step of the bleachers before bending down to pick up a piece of paper (T 56). Second, although he has no specific memory of having done so on the night of claimant's accident, Buttle, whom the Court finds to be credible, testified that it was his practice to inspect the bleachers both before and after every basketball game or special event to check for any spillage or debris that needed to be cleaned up (T 113-119, 142-144), and he insisted that if the sticky condition described by claimant or her counsel had, in fact, been present before the game, he would have detected and removed it (T 152). Claimant fell shortly after the game ended and before Buttle had a chance to inspect the bleachers--the "last thing" that he would do after a game (T 119, 143)--but he did not in any event report having later found any sticky substance. Third, although spectator events were frequently held in the gymnasium, Buttle knew of no other slip-and-fall accidents in the bleachers, which cuts against any suggestion that the bleachers were generally unkempt and debris strewn (T 145-146, 154).
Next, even assuming the presence of a sticky substance as testified to by claimant, she has not established defendant's constructive notice of it. Her proof on the point rests in part on an assumption that because whatever it was that she claims (at trial) to have slipped on was dry and sticky rather than wet (as she originally alleged), it could not have resulted from anything that a spectator spilled (or dropped, since there is no evidence that anything, and specifically any liquid, was spilled) on the floor of the bleachers during the basketball game of January 10, 1998. But how long it might have taken for some unknown something inadvertently deposited on the bleachers' floor to become tacky and whether any residue was (or would have been) visible and apparent is anyone's guess.

As additional proof that the sticky substance, whatever it was, must have existed for a sufficient length of time prior to her accident for Buttle to have discovered it and cleaned it up, claimant relies on the acuity of her observation that the bleachers where she fell were unoccupied at all times during the basketball game of January 10, 1998 (T 48-49, 55). The testimony establishes, however, that these bleachers were open for spectators to sit in them (T 47, 146); claimant's job was to watch the shot clock, not to surveil the bleachers (T 80); and, in any event, she left her station at the scorer's table at mid-court during half-time (T 40).

Finally, claimant also tries to establish constructive notice with photographs of the bleachers (particularly, claimants' exhs. 3 and 4;
see, n 2, supra). Photographs may be used to prove constructive notice of an alleged defect if taken reasonably close to the time of the accident and if there is testimony that the defect at the time of the accident was substantially as pictured in the photographs (see, Batton v Elghanayan, 43 NY2d 898, supra; see also, Karten v City of New York, 109 AD2d 126). In other words, a claimant may prove a prima facie case of constructive notice by means of photographs fulfilling certain indicia of reliability. In this case, however, the photographs were taken nearly three months after an accident attributed to a transient condition (T 31), show the bleachers closed rather than open (T 37) and, according to claimant, do not depict the exact area where she fell anyway (T 36).
Moreover, the Court is at a loss to understand exactly how these photographs may be interpreted as support for claimant's theory of the case. First, claimant testified that "a lot of parts of the bleachers" were blackened (T 59), and Buttle similarly testified that the wooden steps and aisles of the five-year old bleachers[4]
were discolored and darkened in places, apparently from the wear and tear of foot traffic (T 134-135), although he was unable to discern any such "blackened area" in claimant's exhibits 3 and 4 (T 133-134). Claimant also testified that the "blackened area" supposedly depicted in claimant's exhibit 3 resembled the "blackened area" of the step where she fell (T 58-59); however, in her testimony she attributed her fall to a sticky substance that was the residue of a spill on a blackened area of the bleachers, not to any inherent characteristic of the "blackened area" itself.
Similarly, claimant analogized both the "blackened area" and dustiness depicted in claimant's exhibit 4 to the "blackened area" and dustiness of the step where she fell (T 60-64), but claimant did not attribute her fall to the presence of any dust on the bleachers' floor. The Court assumes that by this testimony claimant intends to intimate that the bleachers were usually or often dirty in order to buttress her argument that Buttle must not have cleaned them prior to the basketball game of January 10, 1998. Of course, the fact that an area of the bleachers was dirty in April is no proof that there was a sticky substance on the fourth step of an aisle of the bleachers the previous January. Moreover, the Court can not tell from this photograph (claimant's exh. 4) whether the dusty and dirty area depicted is an aisle or any area of the bleachers that would ever be accessible to foot traffic. In addition, Buttle testified that any photographs taken in mid-April (as these were;
see, n 2, supra) would depict the bleachers a few weeks after the conclusion of the basketball season, a time when they generally remained closed and so were not cleaned as often (T 147-149), but were still sullied by the students using the main gymnasium daily who "put soda bottles or . . . all kinds of junk there [i.e., on exposed surfaces of the closed bleachers]" (T 148).
III. Conclusion
Based on the foregoing, the Court finds that claimant has not proved by a fair preponderance of the credible evidence that a dangerous or defective condition of the bleachers existed and caused her to fall and suffer injuries, or, in the alternative, that CUNY had constructive notice of any dangerous or defective condition that may have existed; therefore, the claim is dismissed. The Chief Clerk is directed to enter judgment accordingly. Any motions on which the Court previously reserved judgment or which were not previously decided are denied.

January 14, 2002
Albany, New York

HON. SUSAN PHILLIPS READ
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]Counsel for the State objected to the use at trial of these and the other photographs taken by claimant's investigator on the basis that the State had only been provided with black-and-white xerox copies, not with laser color copies or actual reproductions as agreed to at claimant's deposition (T 16-27). This objection was overcome by claimant's agreement at trial to provide color copies of the photographs to the State's counsel promptly and to make claimant available for further cross-examination about these photographs, if requested by the State (T 25-27). The State never objected to the introduction of these photographs into evidence on any other basis, and did not, in the end, request to recall claimant for further cross-examination after receipt of the color copies.
[3]The Court notes that in the cases cited by claimant in support of her position, the existence and nature of a dangerous and defective condition appears to have been either conceded or substantiated by more than the plaintiff's testimony standing alone; see, e.g., Batton v Elghanayan (43 NY2d 898 [photographs of a hole in a concrete-like basement floor taken a day after accident]); LoJacono v Schieder (281 AD 799 [stairs gave way]); Huth v Allied Maintenance Corp. (143 AD2d 634 [independent witness observed someone spill soda on floor some 20 to 30 minutes before plaintiff slipped and fell at the spill site]); Qevani v 1957 Bronxdale Corp. (232 AD2d 284 [wet condition characterized by court as visible and apparent at time of accident]); Cameron v H. C. Bohack Co. (27 AD2d 362 [undisputed that claimant fell on granular material resembling detergent while walking in aisle of self-service market]); Emmi v State of New York ( 143 AD2d 876 [while there were no witnesses to inmate's accident, former inmate who escorted him to prison hospital immediately afterwards testified that he had observed a skid mark approximately two feet long in a patch of grease on the corridor where inmate fell]); Weisenthal v Pickman (153 AD2d 849 [plaintiff's fall caused by sticky candy wrapper removed from her shoe while she was lying on ground by one of two other people present]). In summary, the key question in these cases was generally not whether a dangerous or defective condition existed, but whether it was visible and apparent for a sufficient length of time prior to the accident in question for defendant's employees to have discovered and remedied it (i.e., whether there was constructive notice).
[4]Buttle's testimony does not make clear whether the bleachers were five years old in 1998 when claimant fell or in 2001 when he testified.