At approximately 8:30 a.m. on July 29, 1999, claimant Jane Van Beek
("claimant") injured her left ankle and foot when she fell to the pavement of a
walkway leading from the parking lot to an entrance of the Coykendall Science
Building ("Coykendall"), which is located on the campus of the State University
of New York College at New Paltz ("SUNY-New Paltz") (T 7-11,
She alleges that the dangerous and defective condition of the walkway caused her
to fall and that defendant State of New York ("defendant" or "the State") is
liable for allowing this dangerous and defective condition to exist despite
actual and constructive notice of it (claim, filed January 24, 2000).
At the time of her accident, claimant was carrying books and papers in both
arms (T 9, 30), was wearing shoes that she described as "[l]oafer front, back
open" (T 30) and was looking straight ahead (T 30-31) when her "foot got caught
in a crevice in the sidewalk," which caused "all [of her] books [to] fly out of
[her] hands" as she fell to the pavement (T 9;
, T 40). Claimant's daughter, Corinne, observed the happening of
this accident (T 9-11, 39-40).
Since the end of June 1999, claimant's daughter had been attending a class held
at Coykendall (T 8, 12, 47) and claimant, a school teacher, customarily drove
her daughter to the campus and "brought [her] own school work with [her] to do
some school work at the college" while she waited for her daughter's class to
finish (T 8;
, T 54-55), as was her intention on the day of the accident.
Claimant and her daughter had walked over the walkway where claimant fell at
least ten to 15 times without incident in the four weeks or so immediately
preceding the accident (T 15, 31, 41, 46).
Claimant described the condition of the walkway where she fell as "all broken
up" (T 12) and testified that she had complained about its dilapidated state,
mostly to "other students, you know, who were going there" (T 13), but that she
had also had a conversation with a SUNY-New Paltz employee, Carol Quick
("Quick"), in which she had remarked that "[t]his place is falling apart, and
you know, all the sidewalks are falling apart, the curbs are falling apart,
what's happening to this place, because my daughter was going to be going to
school there" (T 18;
, T 34). Claimant's daughter described the walkway as
"terrible," exhibiting "deep cracks, and even if there weren't deep cracks, the
sidewalk was still cracked up in certain places so there were loose pebbles.
And the places where there were deep cracks, they were deep like a good inch,
inch-and-a-half, if not two inches deep. So somebody could easily trip. And
this wasn't in just one spot. This was all over, all the sidewalks were like
this" (T 42).
In both her trial and deposition testimony, claimant characterized the crevice
where she allegedly caught her foot as "quite deep" (T 36), but her assessment
of its actual depth varied: at trial, she testified that it could in no event
have been as shallow as one inch; at her deposition, she testified that its
depth might have exceeded two inches, but then again, might have been "[o]ne to
two inches, something like that" (T 35) and that she couldn't be "definite"
about the depth (T 36). At trial, claimant contended that she could, in fact,
"be quite definite" about the depth of the crevice because she "had a gum pack,
and I measured against the gum pack" (T 36), but did not explain how this
measurement was taken. Claimant's daughter testified that claimant caught her
foot in a "a deep crack" without quantifying its depth (T 40).
At trial, claimant was unsure whether she had previously noticed the crevice
where she allegedly caught her foot on any occasion prior to her accident (T
33), although at her deposition she testified that she had not (T 33-34). When
asked if she had previously noticed this particular crack, claimant's daughter
responded "Yes, I would say so" (T 47).
Claimant testified that she returned to the scene of her accident "[a] couple
of days" (T 20) afterwards and took four photographs (claimant's exhs. 1, 2, 3
and 6), which fairly and accurately represent the condition of the walkway in
the vicinity of Coykendall when and where she fell (T 21-29). Her daughter, who
was with claimant when she fell and who accompanied her when she returned to
take the photographs, corroborates her testimony on these points (T 43-44).
In addition, on August 2, 1999, claimant reported her accident by telephone to
Patrolman Bramley ("Bramley") at SUNY-New Paltz. He dispatched someone by radio
to look at the accident scene and prepared a "Service and Regulatory Incident
Report," which includes claimant's oral account to him of her accident and
treatment in the immediate aftermath of it (claimant's exhs. 7-c and 7-d) as
well as two clear, close-up photographs of the accident scene (claimant's exhs.
7-a and 7-b; T 61).
Upon his return from vacation, Brian McCabe ("McCabe"), who has served as the
Environmental Health and Safety Officer at SUNY-New Paltz since February 1998,
reviewed this "Campus Police Report," talked to Bramley and proceeded to the
accident scene (T 58-59) where he observed "about a two-foot square section of
sidewalk that was slightly depressed" by about half an inch relative to the
adjacent sections of the walkway (T 61, 71). McCabe's estimate of the depth of
the depression was based on a "rough field measure," which is to say that when
he placed his finger in the depressed area, his fingernail was covered (T
McCabe also prepared a memorandum and diagram, dated August 16, 1999, to
document his field investigation, which states that "[a]t the CSB [Coykendall
Science Building] cement ramp, I found a crack approx. 25 feet long. On the
East end of the crack, there was a small triangle shaped piece of concrete that
has sunk approx. ½ " from the adjacent surface level" (claimant's exh.
7-e). He further noted that "[a] work order was submitted to have this triangle
shaped piece brought back up to the surrounding level" (
As SUNY-New Paltz's Environmental Health and Safety Officer, McCabe maintains
copies of those "Campus Police Reports" that involve injuries or fires (T 58).
He searched his office's file of these reports and found no evidence that any
accident had previously occurred on the walkway where claimant fell (T 62-63).
When he searched the file of "Maintenance Work Requests," the type of report
that a complaint about conditions on the walkway would prompt, McCabe found only
one report about a "small hole" at a spot 100 to 150 feet distant from the
accident scene (T 63-65). Finally, McCabe testified that the walkway where
claimant fell was a common pedestrian entranceway into Coykendall, particularly
during the summer of 1999 when part of the parking lot was fenced off as a
staging area for two construction projects, which "would basically force people"
to approach and enter Coykendall following the same route as traveled by
claimant and her daughter (T 61-62).
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
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,
). 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
, 2001 LEXIS 3465); "[u]nder such circumstances, the condition is a
warning in itself" (Tarricone v State of New York
, 175 AD2d 308,
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
, 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
, 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
, Iwaszkiewicz v Callanan Industries,
, 258 AD2d 776; Daversa v Harris
, 167 AD2d
Finally, a claimant bears the burden of proof by a fair preponderance of the
credible evidence (
, 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;
, Johnson v State of New York
, 265 AD2d 652; DeLuke v
State of New York
, 169 AD2d 916).A. Dangerous or defective
Defendant takes the position that the defect causing
claimant to fall was trivial within the meaning of the "trivial defect"
doctrine, which provides that some defects in walkways are too small as a matter
of law to support a negligence claim, and therefore warrant an exception to the
general rule that questions of defect or danger are for the jury to decide
(Trincere v County of Suffolk
, 90 NY2d 976; see also
, Liebl v
Metropolitan Jockey Club
, 10 AD2d 1006 ["The owner of a public passage way
may not be cast in damages for negligent maintenance by reason of trivial
defects on a walkway, not constituting a trap or nuisance, as a consequence of
which a pedestrian might merely stumble, stub his toes, or trip over a raised
projection"]; deAngeli, ‘Trivial Defects' Loom Large in Sidewalk Fall
, NYLJ, Nov. 27, 2000, at 1, col. 2). Although the doctrine's
practical effect is diminished in a non-jury trial, the Court finds that the
defect complained of here is, in fact, trivial and therefore non-actionable.
Alternatively, the Court finds that claimant had not proved the existence of a
dangerous or defective condition by a fair preponderance of the credible
evidence. Both findings are based on the Court's analysis and weighing of the
evidence, as follows:
(1) Claimant variously estimated the depth of the crevice where she fell as
one to two inches, more than two inches or in no event as shallow as one inch,
judgments about which she alternatively could not be definite or was quite
definite because she had made a measurement making use of a gum pack in some
undefined fashion. McCabe, whose job responsibilities at SUNY-New Paltz include
accident investigations (T 57), estimated the depth of the depression where
claimant fell as roughly one-half inch, both in his August 1999 memorandum and
in his testimony. The Court considers McCabe's consistent professional judgment
on this point more credible than claimant's inconsistent testimony.
(2) The close-up photographs of the accident site (claimant's exhs. 3, 6, 7-a
and 7-b) corroborate McCabe's testimony. These photographs disclose a small,
triangle-shaped splintered piece at the corner of a section or slab of concrete
depressed by about one-half inch relative to adjacent areas, just as McCabe
described in the memorandum of his field investigation and in his testimony.
Other photographs of the general location of the accident site (claimant's exhs.
1 and 2) show this triangle-shaped piece situated within the section of concrete
from which a crack extends about 25 feet along the length of the walkway from
the direction of the parking lot towards Coykendall, also just as described by
McCabe in the memorandum, but do not substantiate claimant's or her daughter's
description of a walkway riven with deep crevices or cracks such that sound
footing was impossible to find. In fact, the walking surface appears at least
ten feet wide and generally level and smooth with the exception of this highly
visible, narrow and easily avoidable 25-foot crack.
(3) This walkway was heavily trafficked, particularly in the summer of 1999
when other entranceways to Coykendall were unavailable on account of
construction, yet no other accidents are known to have occurred either at the
specific location where claimant fell or anywhere else on the walkway. Nor were
any requests made for repairs to the walkway in the vicinity of claimant's
B. Actual or constructive notice/proximate
Even if the particular defect alleged in the walkway presented a dangerous or
defective condition, the State had no actual or constructive notice of it.
Claimant contends that the State had actual knowledge by virtue of a complaint
that she made to Quick, a part-time cleaner who worked at Coykendall and who had
retired from SUNY-New Paltz by the time of the trial (T 49-50). Quick, however,
when asked if anyone had made any complaints to her about the walkway's
condition prior to July 29, 1999, answered "No" (T 53); and when asked if she
had ever had discussions with claimant about any conditions at the campus,
replied "Not that I know of" (T 55). Even in claimant's own telling (T 18), the
complaint that she claims to have lodged with Quick amounts at most to
generalized griping about the condition of campus facilities, and was not
specific to the condition of the walkway leading from the parking lot to
Coykendall, much less specific to the
location on the walkway where she fell--which she may not
have even noticed prior to her accident (T 33-34). In addition, Quick had no
responsibility to maintain the walkway in the area where claimant fell (T 51)
and--unlike Bramley, to whom claimant reported her accident, and McCabe, who was
alerted by Bramley's written report--no apparent investigatory responsibilities.
As a result, the Court questions whether any complaint made to Quick, even if
specific, would have imbued defendant with actual knowledge of a dangerous or
defective condition. Finally and as mentioned earlier, no other accidents are
known to have occurred at the specific location where claimant fell or elsewhere
on the walkway leading from the parking lot to
Next, to establish constructive notice claimant relies on her and her
daughter's common characterization of the walkway as visibly severely degraded,
a place permeated with deep cracks where "somebody could easily trip" (T 42).
As noted earlier, the Court does not find that the photographs of the general
area support these characterizations. Even if the walkway had been as worn as
claimant urges, defendant was, at most, generally aware of a potentially
dangerous condition, which is legally insufficient to create constructive notice
, Gordon v American Museum of Natural History
, 67 NY2d 836,
Finally, despite her familiarity with the walkway and her purported knowledge
of the allegedly significant and visible trip hazards posed by it, claimant was
carrying books in both arms, wearing shoes without a back for support and
looking straight ahead rather than checking her footing at the time of her
accident. In view of these circumstances, any hazard was open and obvious and
claimant's own culpable conduct was the sole cause of any injuries that she
sustained when she fell.
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; or,
alternatively, the Court dismisses the claim on the basis that claimant has not
proved by a fair preponderance of the credible evidence that a dangerous or
defective condition of which the State had notice proximately caused her
injuries. The Chief Clerk is directed to enter judgment accordingly. Any other
motions on which the Court previously reserved judgment or which were not
previously decided are denied.