New York State Court of Claims

New York State Court of Claims

SHOCKLEY v. THE CITY UNIVERSITY OF NEW YORK, #2001-014-101, Claim No. 93456


After trial, the defendant is found 75% liable for injuries sustained by the claimant when she fell on a concrete walkway.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
At the commencement of trial, the claim against the State of New York was dismissed.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

S. Michael Nadel
Claimant's attorney:
Lonnie G. Tishman, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Anne Pavlides, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 4, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


On March 22, 1995, at approximately 11:00 AM, the claimant,[1]
a student at Queens College, a senior college of the City University of New York, fell on a concrete walkway located on the campus grounds. She seeks to hold the defendant liable for injuries she sustained.
While the defendant has a duty of reasonable care to maintain its premises in a reasonably safe condition (
Basso v Miller, 40 NY2d 233, 241), negligence cannot be inferred solely from the occurrence of an accident (Mochen v State of New York, 57 AD2d 719, 720). Before there can be liability there must be proof of a dangerous condition which was the proximate cause of the injury, and that the defendant had notice of the condition
The claimant testified that she was on her way to the library at the College when, while carrying a book bag on one shoulder and a pocketbook on the other, she ascended a flight of outdoor stairs, and after taking approximately four to six steps in a plaza area in front of the library building, she tripped on an unevenness in the surface of the walkway, causing her to fall. She stated that it was the first time she had approached the library via this route.

According to the claimant, as she arose from the ground, she noticed that the surface of the ground was uneven where two sections of concrete met; she also noticed many small stones about the area where she had fallen. The claimant testified that the area where she fell is depicted in photographs in evidence as Claimants' Exhibits 1 through 7.

On cross-examination the claimant stated that she was looking where she was walking, but did not notice the condition of the area before she fell. She acknowledged that the area where she fell was very close to a pillar, and that there were several other ways to access the library from the plaza area where she had fallen.

Franz Helmke, the Director for Alumni Affairs at Queens College, was called as a witness by the claimants. From 1990 to 1999, he was the Principal Park Supervisor at the College, responsible for assuring "the well being of the exterior of the campus," including the maintenance of walkways and roadways throughout the campus. He testified that during 1995 members of his staff of fourteen or fifteen persons conducted daily inspections for trip hazards, as well as for cleanliness. He stated that the walkways leading up to the library building, depicted in Exhibits 2 and 3, were regularly inspected. Mr. Helmke testified that between 1990 and March 1995 approximately six to ten repairs were made to the walkways outside the library building and to the area around the pillar depicted in those photographs. He also stated that recaulking of the pillar was done, but was not successful.

Mr. Helmke stated that Exhibits 6 and 7 depict what he characterized as a "slight aberration" in the evenness of the surface of the walkway, of which the defendant was aware, as it was of other potential trip hazards on the walkways in the area in question. He stated that the condition of the walkway next to the pillar depicted in Exhibits 6 and 7 existed since 1992, three years prior to the claimant's accident. Although he did not say he had taken any measurement, Mr. Helmke estimated the height difference in the concrete as from three-eighths of an inch to one-half of an inch. He testified that he did not consider it a trip hazard, because there was a flat surface connecting to another flat surface with a slight aberration, and because he did not believe that anyone would walk so close to the pillar which had a rough surface. He stated that in order for a height difference to be considered a trip hazard the general rule of thumb was for it to be one inch or greater in depth or in height. Mr. Helmke's testimony establishes that the defendant was aware that the condition existed prior to the accident.

The threshold issue presented by the facts in evidence is whether the unevenness on the surface of the walkway amounts to a dangerous condition for which the defendant can be held liable, determination of which "depends on the peculiar facts and circumstances" of the case.
Schechtman v Lappin, 161 AD2d 118, 121. Upon "examination of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the ‘time, place and circumstance' of the injury (Caldwell v Village of Is. Park, 304 NY 268, 274)" [Trincere v County of Suffolk, 90 NY2d 976, 978], the Court concludes that the uneven walkway was a dangerous condition for those who traversed it. Evidence at trial established that two adjoining sections of concrete, forming a part of a walkway, were of disparate heights at the point where they abutted, with concrete debris scattered about the area. Photographs which depict the unevenness of the surface (Exhibits 6 and 7) cannot support the conclusion that "the defect was so trivial and slight in nature that it could not reasonably have been foreseen that an accident would happen." Evans v Pyramid Company of Ithaca, 184 AD2d 960. Cf., Guerrieri v Summa, 193 AD2d 647, Morales v Riverbay Corp. 226 AD2d 271, Scally v State of New York, 26 AD2d 606, affd 24 NY2d 747, Keirstead v City of New York, 24 AD2d 486, affd 17 NY2d 535 [wherein the conditions possessed "none of the characteristics of a trap or snare"].
Finally, it is the defendant's contention that the claimant's failure to observe a condition which was obvious and apparent constitutes culpable conduct[2] on her part which was the sole cause of her injuries.[3]
While it has long been the law of this State that a person is bound to see what, with proper use of one's senses, should have been seen [Weigand v United Traction Co., 221 NY 39; Jimenez v Urban Universal Structures, Inc., 174 AD2d 604, 605], the claimant's failure to observe the condition does not "rise to such a level of culpability as to replace the defendant's negligence as the legal cause of the accident." Mesick v State of New York, 118 AD2d 214, 218.
Nonetheless, based upon the evidence, the claimant must also be held partially culpable for her injuries. Although she never had occasion to traverse the area before the day of her accident, the condition depicted in the photographs in evidence should have been apparent to anyone approaching it.

Accordingly, the Court finds the defendant 75% liable for the claimant's injuries.
See, Kiett v New York City Housing Authority, 255 AD2d 422, 423.
The issue of damages will be set down for trial upon the filing of a note of issue and certificate of readiness pursuant to Rule 206.12 of the Uniform Rules for the Court of Claims.


January 4, 2001
New York, New York

Judge of the Court of Claims

[1]References herein to "claimant" are to Mary Shockley-Gottlieb.
[2]As pleaded in the defendant's First Affirmative Defense.

[3]The defendant incorrectly maintains that the claimant must prove that the injuries suffered were not the result of her own culpable conduct (Defendant's Post Trial Brief, at page 8). Culpable conduct is an affirmative defense that must be "pleaded and proved by the party asserting the defense." CPLR 1412.