New York State Court of Claims

New York State Court of Claims

KLIMOWICH v. CITY UNIVERSITY OF NEW YORK, #2001-016-015, Claim No. 99495


Synopsis


Defendant was found seventy percent liable for claimant's slip and fall at Lehman College.

Case Information

UID:
2001-016-015
Claimant(s):
ELAINE KLIMOWICH andJOSEPH KLIMOWICH
Claimant short name:
KLIMOWICH
Footnote (claimant name) :

Defendant(s):
CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99495
Motion number(s):

Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Nassy, Hill, Langsam & MoinBy: Melisande Hill, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Michael Friedman, AAG
Third-party defendant's attorney:

Signature date:
February 28, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This decision follows the liability trial of the claim of Elaine Klimowich arising from her fall at Lehman College of the City University of New York on February 3, 1998.[1]

February 3 had been the first day of the spring semester at the Bronx college. Ms. Klimowich, a secretary in an elementary school,
was taking courses in the evening at Lehman. Late that day, claimant attended a speech class which had been scheduled from 6 to 8:30 p.m. Released a little early on the term's opening day, Klimowich proceeded to the college bookstore, purchased a book required for a social work course and headed for Gillette Hall where a friend was in class.
Claimant's testimony picks up the narrative:
And on my way back to that building, it was very, very dark, and I tripped...Along the path, there are stones that are octagonal-shaped, and as that stonework meets the flagstone of the bridge, is a seam where I had found out after I had fallen, that the ... flagstone was broken. And my toe got caught there and I stumbled a step or two, and I fell...
At the time, Klimowich was carrying her bag, a notebook and the just-purchased text; she was wearing "flat shoes that laced up." The accident report based on claimant's statement placed the time of the incident at 8:40 p.m. (def exh A).
Had claimant fallen in the daytime, she could not prevail in this lawsuit. The photograph taken by claimant shows a seam or elevation differential of indeterminate height between the hexagonal paving stones of a pedestrian walk and the beginning of a foot bridge (cl exh 2).
No measurements were supplied, nor was a visual yardstick such as a shoe or pencil placed in the photo.
The threshold issue - - before consideration of the sufficiency of notice - - is whether such condition constituted an unsafe or dangerous condition.
Madrid v City of New York, 42 NY2d 1039, 399 NYS2d 205 (1977); PJI 2:90. The seam in the pathway was a design feature, and claimant presented no expert to supply a basis that such represented a variance from accepted engineering practice. In any event, a pedestrian would have been placed on notice that a change was about to occur when approaching the bridge which was slightly arched and bounded by retaining walls on each side.
Klimowich further contends that a portion of the hexagonal stones was broken, but such alleged defect was not even discernible in claimant's own highlighted photograph, and no other evidence was submitted to prove its existence. Moreover, no history was adduced as to any prior accidents
or complaints at such locale.
With that said, an otherwise safe pedestrian walk, stairway or foyer, etc. that is dark or insufficiently illuminated can be an unsafe condition that will subject the owner of the premises to liability.
Quinlan v Cecchini, 41 NY2d 686, 394 NYS2d 872 (1977); Shirman v New York City Transit Authority, 264 AD2d 832, 695 NYS2d 582 (2d Dept 1999). In this instance, the design seam coupled with a lack of lighting transforms the condition to a dangerous one. Claimant must thus prove that Lehman College knew of the condition or had constructive notice, meaning that the condition must have been apparent and existed for a sufficient period of time to be discovered and remedied. Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986).
The next day
claimant returned to the campus with her husband to report the accident, and Mr. Klimowich took photographs, three of which became claimant's exhibits one through three. Joseph Klimowich testified that the lighting was poor if nonexistent, three or four lights in the area were out, and down the walkway a few more were unlit. Ms. Klimowich believed that the photos were shot at "about 8:30 p.m...when the classes ended."
Claimant on the stand – and credibly so -- also testified to it being very dark and confirmed her husband's testimony that overhead lights were unlit or malfunctioning. According to Ms. Klimowich, it was: dark the evening of the accident, dark the evening of her return visit, dark the day in January she was at Lehman for registration and dark on the final day of the fall semester in late December (although adequately lit prior thereto). To that effect, on the day of the accident:
Well, I looked up and - - and I could see just in the immediate area there were four lights out and then when I looked down the path, you could see there were at least another six to eight light poles that were out.

***

Klimowich's case is not without its weaknesses:

- Claimant never mentioned lighting, or the lack thereof, in her accident report, or otherwise when interviewed by campus peace officer Ismael Colon. (Def's exhs A and B, the latter being the typed version of exh A.)
- The photograph proffered by claimant to demonstrate poor lighting lacks clarity; and claimant acknowledges that rain spots on the lens created false images on the print (exh 1).
- Ms. Klimowich had been aware of previous problems with the lighting and never reported it to the college.
- Officer Colon testified that he was on duty February 3, 1998 working a 3 p.m. to 11 shift and was patrolling on foot that night. On patrol, he was looking for persons who did not belong in the area and for any hazardous conditions. If he found a hazardous condition, it was to be called in to dispatch, and a report would be prepared. The next day Colon worked out of the dispatch office, but returned to patrol on February 5.
As to the lighting, the officer described it as adequate, and said he had never observed or learned of a lighting problem in that vicinity. Officer Colon came across as serious and professional about his law enforcement responsibilities, but did not appear particularly focused on campus lighting. His responses thereon were general in nature. When matters moved to the specific,
i.e., which lights depicted in claimant's exhibit one were functioning, Officer Colon conceded that at least one spot circled in the photo represented a light that was out, although he attempted recovery with "this could be a tree also."
At Colon's May 10, 2000 examination before trial, the officer stated that "[i]f some of the lights are out, someone brings it to our attention and we will call the engineers" (cl exh 4, p.14). This was a sensible prescription for what defendant should have done at trial - - call an engineer . See
PJI 1:75. As Colon allowed in his deposition testimony, the engineers, who are centrally based on the Lehman campus, have the job of maintaining the lighting in and around the subject area. Further emphasizing Colon's operational remove from this function was the following exchange:
Q. Have you ever made any notes in your memo book about any lighting conditions?

A. Not recently, not for a long time...Maybe four years ago. (Id., p.21).

The business of Lehman College was conducted into the evening covering the time of Ms. Klimowich's mishap - - classes were in session and the bookstore was open. The campus pathways should have been properly lit. It is not as if an electrician came forward and explained, for example, that: (i) the lights are on timers, dimming one-half hour after the library closes at 10:30 p.m. so that claimant's photograph could not have been taken at 8:30 p.m.; or (ii) his people perform routine, periodic inspections which would find and replace a burned out bulb within, say, two or three hours.

While Klimowich's case contains some flaws in its presentment, she does satisfy her evidentiary burden: to this trier of fact, the credible evidence supporting Klimowich's claim more nearly represents what took place than the credible evidence opposed to it (PJI 1:23 & 1:60).
However, claimant must bear some of the responsibility, specifically, thirty percent (30%). She testified that there were "a lot of broken areas" on campus, but with such knowledge, still walked toward Gillette Hall at a normal pace with her arms full. Klimowich testified that she had never noticed the alleged broken stone in the spot she fell, but as to the seam between the two kinds of pavement and the poor lighting, was well aware of both prior to the accident.

***
In view of the foregoing, I find the defendant to be
seventy percent (70%) liable for Elaine Klimowich's fall on February 3, 1998 and the damages resulting therefrom to claimants. All motions not previously ruled upon are deemed denied. The parties will be contacted to schedule a conference prior to the damages phase of trial.

ENTER INTERLOCUTORY JUDGMENT


February 28, 2001
New York, New York

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




[1] References herein (except where the context indicates otherwise) to "Klimowich" and "claimant" mean Elaine Klimowich inasmuch as the claim of Joseph Klimowich is derivative of his wife's.