New York State Court of Claims

New York State Court of Claims

SHERIFFE v.THE STATE OF NEW YORK, #2001-016-005, Claim No. 99087


Synopsis



Case Information

UID:
2001-016-005
Claimant(s):
REVON SHERIFFE
Claimant short name:
SHERIFFE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99087
Motion number(s):

Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Mandler & Sieger, LLPBy: Marie G. Costello, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John Shields, AAG
Third-party defendant's attorney:

Signature date:
January 24, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This decision follows the trial of the claim of Revon Sheriffe, which arose out of his injury at the sports complex of the State University at Stony Brook on December 8, 1997. At trial, claimant testified on his own behalf and called three fellow students to the stand. For its part, defendant rested without calling a witness.

Sheriffe's
Achilles tendon was cut by the front metal panel of a drinking fountain that fell onto the back of his leg. Claimant, then a Stony Brook freshman and member of the school's track team, was working out with the team in the gym in the late afternoon. It was a normal practice, sets of 200 and 400 meter runs. While some of the runs were separated by short intervals of a minute or two, at about 5 p.m., the athletes were all given a five-minute break.
Claimant went over to get a drink from a water fountain that was one of three placed in a row just off the running track (see cl exh 1).
The drinking fountain was about a foot and a half off the ground and perhaps two feet across and three feet high. The testimony was a little vague as to whether the drinking surface was three feet off the ground or three feet plus the one and one half feet; in any event, Sheriffe had to bend over to drink from it. Just before doing so, claimant had noticed "a dent in middle of the water fountain and the top right hand corner was slightly pulled out or not flush against the water fountain." The facility was well lit.
Sheriffe continues the narrative:

I took a drink as normal, rested my hands on top, pushed the button...I drank some water. And as I was turning away, my right hand got caught in the top right area that was sticking out... So, then I tried to pull my hand up, but it wouldn't come out. So, I pulled my hand out from the right side. And by then I turned around... I took about a step or two, about two steps, and I fell...

I got hit in like the lower portion of my right leg by my ankle..[the] back of my leg...and then I heard the panel drop...then I tried to take another step and I stumbled...and fell, and I actually stepped on one of my friends – I had the spikes on...landing on my left-hand side of my body...I observed that a water fountain cover was off of the panel and that was what hit me.
***

The testimony of claimant and his three witnesses, Steven Sayegh, Ramone Ward, and Chadwick Vaillant can be summarized as follows:

- - The claimant was on the gym floor, bleeding, and the panel from the fountain was on the ground as well. None of Sheriffe's three witnesses had actually seen the accident.
- - Only claimant and Sayegh observed a bent or slightly protruding panel, Sayegh recalling it protruding out an inch or two.
- - None had ever seen the panel loose.[1]
- - Of the witnesses, including claimant, only Ramone Ward saw the panel on the gymnasium floor on prior occasions, maintaining that such occurred two or three times before the accident.
Without question and most unfortunately, Mr. Sheriffe suffered an injury that December day in 1997. Nonetheless, the State is not an insurer, and that an injury occurred on its premises does not necessarily make the State liable therefore.
Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977). To establish liability, to prove that defendant was negligent, it must be shown that a dangerous condition existed which was created by the defendant; or if not so created, that defendant had actual or constructive notice. Bernard v Waldbaum, Inc., 232 AD2d 596, 648 NYS2d 700 (2d Dept 1996). Constructive notice obtains if a defect is visible and apparent, and had existed for a sufficient period of time for defendant to discover and remedy the condition before the accident in question. Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986).
Setting to one side for the moment, Ward's testimony that he saw the panels on the floor, the accident as described by Sheriffe does not implicate liability on the part of the State. None of the witnesses viewed the fountain, which was bracketed by two other fountains that could have been used, as one to avoid -- they used that particular fountain regularly, and all testified unambiguously that they regarded it as safe. On the face of it, the panel is not a dangerous condition, even if slightly protruding (which only two of the witnesses recalled), and no credible evidence to the contrary has been brought forth.
Now, if in fact the panel fell off two or three times just prior to Sheriffe's fall, then the issue of the State's negligence becomes a much closer call, if not more. Each party acknowledges
the significance of Ward's statement, albeit defendant does so implicitly. Claimant's closing statement in support of his positions is predicated on such occurrences. Defendant in its closing statement and letter brief avoided any reference to prior instances of a dislodged panel lying about, and emphasized that a "small dent is not a dangerous condition" (def brief, p.1).
Ward was a freshman at Stony Brook at the relevant time and, like claimant, a member of the college's track team. But he was also a member of the football team, which practiced late into the fall. He thus commenced his activities with the track team relatively late. Initially, Ward said he had been at track for three weeks prior to the Dec. 8 accident and observed the panel on the ground "two or three times," or perhaps with what he thought had a little more emphasis, "at least two or three times." But later in his testimony, Ward conceded that a shorter period of time was involved:
Q. And you started track, you said, after Thanksgiving; right? A. Yes...
Q. So that would have been the very end of November or the beginning of December? A. Yes.

Q. So as of December 8, you would have been practicing for about a week; correct? A. Yes.

Ward tried to reconcile his statements by noting he could have also been inside the sports complex for football practice.
According to Ward, each time the panel was on the floor, the very next day it had been re-affixed. Yet Ward never saw who put it back on, nor did he make any observations as to how the panel came off. The subject defect is not the kind such as,
e.g., a pothole, which until repaired, is continuously present. Moreover, no evidence as to regular maintenance or other information on repair has been offered. And no one else - among the dozens of athletes and coaches in this busy area[2] - ever saw the panel on the gym floor.
As to actual notice, it is unknown who might have reattached the fountain panel; it could have been a person or persons whose status would not place the defendant on notice. If a coach did so, that would likely be imputed to the administration. If a maintenance person was involved, that clearly constitutes actual notice, but to accept Ward's version therewith would mean that such maintenance person lacked sufficient skill to keep the panel secure for more than a few days or perhaps a week. Not only have maintenance records not been supplied, but no proof has been offered of any similar accident prior to December 8, 1997.

The burden of proof is on the claimant. He must establish by a fair preponderance of the credible evidence that his claim is true, meaning that the evidence supporting his claim appeals to the trier of fact as more nearly representing what took place than the evidence opposed thereto.
PJI 1:23. As noted, it is necessary that claimant show more than that the panel was bent, but always intact; however, we do not have to reach the issue of whether the facts as they appeared to Ward would be sufficient to support recovery by Sheriffe. To this trier of fact, claimant has not met his burden of proving that the panels had been dislodged prior to the fall.
Finally, claimant submits a trio of First Department cases that applied
res ipsa loquiter. In Pavon v Rudin, 254 AD2d 143, 679 NYS2d 27 (1998), the plaintiff was injured by a dislodged door with a defective pivot hinge at its top that could only have been reached by a stepladder. Similar was Nesbit v New York City Transit Authority, 170 AD2d 92, 574 NYS2d 179 (1991), in which res ipsa was properly charged where a safety chain attached to a heavy bar came loose from an elevated train and struck a person walking below. In Diovisalvo v Woodlawn Cemetery, Inc., 241 AD2d 348, 659 NYS2d 286 (1997), the defendant had even more control of the instrumentality causing the accident -- a 100-pound crypt cover that could only be moved by cemetery employees who often had to use special tools to deal with the unusual locking mechanism. These cases are distinguishable from the case at bar, and res ipsa loquiter is inapposite here. The water fountain is only a few feet off the ground and located in the busy gym--- an athlete (or for that matter, a basketball) may well have had contact with it. Sheriffe acknowledged that in addition to track practice, the main floor of the sports complex was the site of basketball and volleyball games, and that the baseball and lacrosse teams would also use it on occasion.
***

In view of the foregoing, Revon Sheriffe has failed to prove his case by a fair preponderance of the credible evidence, and his claim is
dismissed. All motions not previously ruled upon are deemed denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.








January 24, 2001
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1]
Sayegh did refer to the panel being loose after the question was served up to him on a leading platter. This followed his denial that he saw anything other than the one to two-inch protrusion.
[2]
When asked who he recalled being present at the time of the accident, claimant responded, "my friend Paul; this girl named Tara; Alfredo; Chris Davis," none of whom he called to the stand as witnesses.