New York State Court of Claims

New York State Court of Claims

KOENIG v. THE STATE OF NEW YORK, #2001-015-542, Claim No. 101087


Claim seeking to recover damages for personal injury sustained in fall at SUNYA Theatre dismissed where proof demonstrated claimant was familiar with the theatre and voluntarily chose to exit through a prop door into unlighted backstage area where she tripped over prop door support.

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):

Claimant's attorney:
Thomas A. Newman, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eileen Bryant, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 18, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this claim was bifurcated by order of the Court and the instant decision addresses the issue of liability only.

The claim alleges that the claimant sustained personal injuries as a result of a fall in an unlighted area inside the Arena Theatre on the campus of the State University of New York at Albany (SUNYA) on the night of February 12, 1999. Claimant, who is in her early seventies, had gone to the theatre to see a production involving four one act plays. The production was held in the Arena Theatre which is a theatre-in-the-round composed of a circular stage twenty four feet in diameter surrounded by multi-level seating for 196 people in four concentric circles with each row elevated slightly above the preceding one as one moves away from the stage. For ease of description the theatre was treated at trial like a clock, with access to and from the stage and seating areas obtained by means of two sets of stairs located at 12:00 o'clock and 6:00 o'clock or by means of ramps in lieu of stairs located at 3:00 o'clock and 9:00 o'clock. There are additional internal stairs to access the seats but these played no role in the scenario giving rise to the claim. Both parties presented a diagram of the theatre, claimant's was designated as Exhibit 1 and defendant's as Exhibit A. The theatre is surrounded by a half wall approximately forty-four inches high and the entire theatre, including the half wall, is enclosed by a moveable black curtain mounted on a track. The wall and uppermost level of seating as one enters the theatre is located at floor level with the stage area several feet below. The theatre also features a gallery above the seating area containing a locked area where light switches controlling the houselights and perimeter lights are located. The gallery is accessible by doors located outside the theatre and across from the top of the 3:00 o'clock ramp. On the night in question a prop door used for theatrical purposes in one or more of the plays had been placed at the top of the 3:00 o'clock ramp . Claimant's accident occurred outside this prop door in the area referred to as the perimeter which surrounds the theatre seating area and is separated therefrom by the half wall and curtain.

At trial the parties stipulated that the SUNYA Arena Theatre is owned by the defendant. The first witness called by the claimant was Patrick Ferlo who identified himself as the Director of the Performing Arts Center (PAC) at SUNYA in which the Arena Theatre is located. The witness described the theatre using claimant's Exhibit 1 as a reference and described the main entrance to the theatre area as being located in the upper left hand corner of Exhibit 1 near the 12:00 o'clock ramp. Mr. Ferlo described the Arena Theatre lighting system as being composed of houselights, perimeter lights and stage lights. The houselights illuminate the seating area and the perimeter lights illuminate the area beyond the theatre's half wall. The house and perimeter lights were controlled in unison by a single dimmer control located in a locked area of the gallery one floor above the theatre. Keys to this area could be signed out by persons authorized to use the theatre. The stage lights consisted of 12 can lights which were controlled by switches installed in an unlocked alcove near the theatre's green room located outside the 9:00 o'clock ramp. The stage and the house areas could also be lit by 4 scoop lights turned on and off by plugging or unplugging them into outlets found in the gallery. Mr. Ferlo further testified that the production in the Arena Theatre that night was written and acted by students and was sponsored by the Theatre Council, an organization comprised of SUNYA Theatre Department students but not otherwise affiliated with the Department. The witness testified that at some point prior to the production he had been approached by a theatre student, Herb Newsome, about the possible use of the theatre that evening. Ferlo initially declined the request but later consented after Newsome obtained sponsorship for the production from the Theatre Council which operates under the SUNYA Student Association.

The witness indicated that keys to the locked area of the gallery where the house and perimeter light control was located were usually signed out by someone associated with the production but he found no evidence that keys had been signed out for February 12, 1999. This was not unheard of, however, because some members of the Theatre Council had assigned keys to the gallery area. He testified further that as Director of the PAC he was not involved in productions generally or in this particular student production and he exerted no control over lighting, props, scenery or actors. The witness indicated that the Department's inventory contains approximately 40 prop doors but he did not know which, if any, of the doors were used in the February 12, 1999 production. He described how a prop door could be made free-standing by the use of jacks or braces which he described as triangles of wood which rest on the floor and attach to the vertical pieces of the door jamb.

The witness, who was not present on February 12, 1999, indicated that it was not unusual for prop doors to be used at the top of the ramps but that when this was done the house manager during the curtain speech preceding the production would generally alert the audience to that fact and advise the audience against the use of that ramp. He did not know if such a speech had been given that night.

On cross-examination the witness gave his observations of general conditions in the Arena Theatre that night garnered from his review of a videotape of the production (Defendant's Exhibit B). The witness testified that it does not appear that the houselights were illuminated. Instead, the lighting used appears to have included the can lights over the stage area and the 4 scoop lights over the seating and stage areas. He further testified that the surrounding black curtain appears to be pulled so that it was open at the 9:00 o'clock ramp.

On redirect examination the witness testified that the February 12, 1999 production was free and open to the public and admitted that it is important for groups which use the theatre to be responsible in its use, including providing proper illumination at the end of a production. He indicated that he was aware of no prior complaints regarding lighting or prop use in Theatre Council sponsored productions occurring prior to this event.

Claimant testified that she is a retired school teacher who still works part-time at various jobs averaging five to twenty hours per week. Her date of birth is February 26, 1930 and she alleges that her corrected vision is 20/20 and that she has no walking or balance problems. She alleged that on the day in question she worked until 2:30 p.m. and later went out to dinner with a friend. She denied any alcohol consumption at dinner. The claimant described herself as an avid theatre goer who had attended many productions at the Arena Theatre prior to February 12, 1999. She also testified that as a SUNYA student she had acted in plays presented in the Arena Theatre and had taken several theatre classes, including two classes in which she was enrolled in February, 1999 which were conducted, at least in part, in the Arena Theatre. She further testified that as an audience member she had on occasion entered the seating area using the 3:00 o'clock ramp and the 6:00 and 12:00 o'clock stairs.

On the night in question claimant and her friend entered the theatre using the 12:00 o'clock stairs and sat in an adjacent seating area. At the conclusion of the production claimant went down those stairs to the stage area to congratulate the writers and actors. She alleges that after offering her congratulations she intended to leave by the 12:00 o'clock stairs but was blocked by the presence of students who did not yield to her request to pass. Claimant testified that since she knew the theatre well she decided to go up the 3:00 o'clock ramp to the perimeter and from there meet her companion at the theatre exit having momentarily forgotten that a prop door had been located on the ramp. Claimant proceeded to the 3:00 o'clock ramp, noticed the prop door, turned and observed that the 12:00 o'clock stairway was still blocked by students. She testified that the lighting in the house was sufficient to illuminate most of the ramp and that she turned the door knob on the prop door, walked through to the perimeter area and closed the door behind her. The closing of the door placed the claimant in total darkness. She admitted that she did not reopen the door in order to re-illuminate the area but instead decided to feel her way along the wall in the dark to reach the exit. Claimant testified that although she considered returning to the theatre through the prop door she decided instead to proceed in the darkness, took one step and fell. Claimant admitted that she did not know what caused her fall but speculated on the basis of her observation of a prop door several months after the accident that she had tripped over the jack or brace protruding beyond the jamb of the prop door. She testified that after her fall on February 12, 1999 she walked to the exit where she met her friend. Neither she nor her friend returned to the scene of the accident in order to determine its cause.

On cross-examination claimant admitted that most of the classes she took at SUNYA were theatre related. She also acknowledged that she was aware that the Arena Theatre had no defined backstage area and that the theatre's perimeter often served as the theatre's backstage. She repeated her earlier admission made in her direct testimony that she had acted in plays presented in the theatre and had attended many performances there. She further admitted that had she remembered that there was a prop door at the top of the 3:00 o'clock ramp that evening she would not have used the ramp as a means to leave the theatre. She did not consider at the time she used the door whether it was in any way anchored or freestanding.

The claimant rested after requesting that the Court take judicial notice of a provision of the State Uniform Fire Prevention and Building Code, 9 NYCRR § 1031.1 (b). The defendant's attorney moved orally to dismiss the claim based upon the claimant's failure to establish a prima facie case. The Court reserved decision on the motion.

The defendant called three witnesses: Jonathan Desley, Patrick Ferlo, Carl Martin, SUNYA Assistant Vice President for Student Affairs. Jonathan Desley testified that he operated the video camera which produced Exhibit B on the night in question and that he acted in the plays produced that evening. Desley did not recall if the houselights/perimeter lights were on that night or who was in charge of lighting for the production. The witness indicated that the audience generally entered the theatre through the 12:00 o'clock stairway and testified that the doors across from the top of the 3:00 o'clock ramp lead to the gallery entrance and do not lead directly to an exit. On cross-examination the witness admitted that he has observed people sometimes use the 3:00 o'clock ramp to exit the theatre but that anyone doing so would be required to turn left at the top of the ramp and proceed approximately 15-17 feet to the exit. The witness indicated that a prop door with two braces was used in the February 12, 1999 production. He could not recall whether the audience, which he estimated numbered approximately 100, was instructed that evening not to use the 3:00 o'clock ramp as an exit. On re-cross examination the witness testified that the prop door was placed at the top of the 3:00 o'clock ramp before the production began and was removed approximately one-half hour following its conclusion.

Performing Arts Center Director Ferlo testified on his direct examination that he was generally available on an "on call" basis during his off hours but that on February 12, 1999 he was not contacted regarding keys to the gallery nor advised that the house/perimeter lights were not on that evening.

The defendant's final witness was Carl Martin, SUNYA Assistant Vice President of Student Affairs, who described the five divisions of the university and explained the operation of the Student Association on campus. According to his testimony, the Association is the governing body for undergraduate students and is funded by mandatory student activity fees without contribution from the university. He asserted that the university neither controls nor manages the Association. He further described the Theatre Council as part of the Student Association and testified that the Council, like the Association, is neither managed nor controlled by SUNYA. The witness was unaware of the Theatre Council sponsored production at the Arena Theatre on February 12, 1999 until he was advised of the instant claim by the defendant's attorney. The witness testified that although the Student Association is an autonomous and independent organization it and SUNYA are associated and interact with each other. The witness confirmed that the Arena Theatre is in fact owned by SUNYA.

At the conclusion of Martin's testimony the defendant renewed its motion to dismiss the claim for the claimant's failure to establish a prima facie case.

It is well established that landowners such as the State who hold their property open to the public have a general duty to maintain it in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries (
see Nallan v Helmsley-Spear Inc., 50 NY2d 507; Kellman v 45 Tiemann Assocs., 87 NY2d 871). Encompassed within this duty is the duty to warn those lawfully on the premises of potentially dangerous conditions existing thereon be they natural or artificial (see, Basso v Miller, 40 NY2d 233) but only if such conditions are not readily observable (see, Russell v Archer Bldg. Ctrs, 219 AD2d 772, Thornhill v Toys "R" Us NYTEX, 183 AD2d 1071). It has been held that "[c]onversely, there generally is no duty to warn of conditions that can be easily recognized or discovered by the normal use of one's senses" (Comeau v Wray, 241 AD2d 602, 603; DeRossi v Golub Corp., 209 AD2d 911, lv denied, 85 NY2d 804; Tarricone v State of New York, 175 AD2d 308, lv denied 78 NY2d 862) because "in such instances the condition is a warning in itself" (Thornhill v Toys "R" Us NYTEX, supra; Tarricone v State of New York, supra).
"The decisional law is well settled and firmly established that when a lack of lighting renders ineffective the use of one's eyesight as to the condition of the route upon which he is traversing, ordinary prudence requires that he refrain from proceeding further without first ascertaining if he may safely proceed" (
Halstead v Kennedy Valve Mfg. Co., 36 AD2d 1005, 1007). "Where, as here, the sole legal cause of plaintiff's injuries is his [or her] own reckless conduct, which showed a disregard for an obvious hazard, a defendant is not liable in negligence" (Brown v Metropolitan Tr. Auth., 281 AD2d 159, 160; see also, Olsen v Town of Richfield, 81 NY2d 1024; Egan v A.J. Constr. Corp., 94 NY2d 839; Pytel v New Jersey Tr. Auth., 267 AD2d 155).
"To establish a prima facie case of negligence, a plaintiff must generally show that the defendant's negligence was a substantial cause of the events which resulted in his injury (
see, Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). A break 'in the nexus between the defendant's negligence and the plaintiff's injury caused by the act of *** the plaintiff [him]self may affect the liability of the defendant' (Bikowicz v Sterling Drug, 161 AD2d 982, 983; see Kush v City of Buffalo, 59 NY2d 26, 33) and may even relieve a defendant of liability where the plaintiff's own conduct is the unforeseeable superseding force which not only severs the causal connection but causes the plaintiff's injury" (Rosenbaum v Camps Rov Tov, ____ AD2d ____, 727 NYS2d 553, 555, see also, Roberts v Town of Colchester, 139 AD2d 819, 821).
The instant claimant candidly admitted to a fair amount of theatrical experience and significant familiarity with SUNYA's Arena Theatre having both performed there as part of her theatre classes and having attended many performances prior to the night of her accident. Claimant acknowledged that her own action in closing the prop door behind her blocked the ambient light from the theatre and plunged her into darkness to which she would not otherwise have been exposed. She admitted an appreciation for the fact that reopening the door would have permitted her to safely re-enter the theatre and then to exit by the same route she had used earlier that evening without incident
and there is nothing in the record to indicate that such a course of action was in any way unavailable (see, Crimi v R.H. Macy Co., 268 AD 1043, affd 294 NY 753). Instead, after considering the matter for what she estimated to be approximately thirty seconds, claimant chose to venture on in the darkness by feeling her way toward the exit. As someone familiar with the theatre in general and the SUNYA Arena Theatre in particular claimant knew or should have known that the perimeter area into which she stepped was the virtual equivalent of a conventional theatre's backstage area, an area potentially filled with dangerous traps including the prop door through which she passed with its jacks or braces attached to maintain its verticality.
As the First Department recognized in
Brown, supra, claimant's actions were "so obviously fraught with danger that, by its very nature, it evinced a wanton disregard for the actor's own personal safety or well being" (Brown v Metropolitan Tr. Auth., supra at 161; Wright v New York City Tr. Auth., 221 AD2d 431, lv denied 88 NY2d 806). Here, as in Brown, supra, the Court is not without sympathy for claimant's injuries. However, upon the proof presented at trial, the Court finds that the claimant's actions in continuing into the darkened room despite reflection and her awareness of an available, safe alternate route to the theatre exit superceded any alleged negligence of the defendant and constituted the sole proximate cause of her injuries. For this reason, the claimant's attempt to predicate liability on the defendant's alleged violation of § 1031.1 (b) of the State Uniform Fire Prevention and Building Code concerning lighting requirements in areas accessible to the public is unavailing. Absent proof of both a violation of the code and proof that such violation was a proximate cause of the claimant's injuries claimant failed to meet her burden of proving a prima facie case of negligence against the defendant (see, Manning v Atlas Tr. Mix Corp., 254 AD2d 336; Lynn v Lynn, 216 AD2d 194). Defendant's motion to dismiss the claim is granted and the claim is dismissed. The Clerk shall enter judgment in conformity with this decision.

October 18, 2001
Saratoga Springs, New York

Judge of the Court of Claims