New York State Court of Claims

New York State Court of Claims

VAN BEEK v. THE STATE OF NEW YORK, #2001-001-532, Claim No. 101822


Synopsis


The Court grants defendant's motion to dismiss the claim for failure to establish a prima facie case of negligence; 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.

Case Information

UID:
2001-001-532
Claimant(s):
JANE VAN BEEK The original caption also names The State University of New York. 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, the State of New York (see, Court of Claims Act § 9).
Claimant short name:
VAN BEEK
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The original caption also names The State University of New York. 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, the State of New York (see, Court of Claims Act § 9).
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101822
Motion number(s):

Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
Joseph B. Hirschfield, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Glenn C. King, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 31, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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, 18-19).[1]
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;
see also, 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;
see also, 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;
see also, 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 71-72).

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" (
id.).
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).

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 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;
see also, 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, 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).
A. Dangerous or defective condition
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 Cases, 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 accident.

B. Actual or constructive notice/proximate cause
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
particular 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 Coykendall.
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 (
see, Gordon v American Museum of Natural History, 67 NY2d 836, 837, supra).
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.

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; 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.


December 31, 2001
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.