New York State Court of Claims

New York State Court of Claims

ENNIS v. THE STATE OF NEW YORK, #2001-019-015, Claim No. 101239


Court found State had actual and constructive notice of a dangerous condition of a cracked and uneven walkway in a high volume rest stop area, but that dangerous condition was readily observable to Claimant; liability apportioned 50% to the State and 50% to Claimant.

Case Information

JULIA ENNIS The Court has amended the caption, sua sponte, to reflect the only defendant over which this Court has jurisdiction.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption, sua sponte, to reflect the only defendant over which this Court has jurisdiction.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
MALLILO & GROSSMANBY: Jeffrey M. Blum, Esq., of counsel
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 21, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Julia Ennis, alleges she was injured on May 7, 1998 when she was caused to trip and fall as a result of a broken, dilapidated, and defectively maintained sidewalk while lawfully in a rest stop area located on New York State Route 17 west near Painted Post, New York. The trial of this Claim was held in the Binghamton District on May 24, 2001. This Decision addresses the issue of liability only.

On May 7, 1998, Claimant, a 56-year-old, married, mother of two, was a passenger in a vehicle with four other individuals on a trip from Redding, Pennsylvania to Toronto, Canada. Claimant testified that it was beautiful sunny day and at approximately 10:00 or 11:00 a.m. the driver of Claimant's vehicle decided to stop at the "Ames"[1]
rest stop near Painted Post between Exits 42 and 43 on New York State Route 17 west, Steuben County. Claimant's vehicle pulled into the rest stop and parked parallel to the curb. Adjacent to the curb was a blacktop or macadam walkway that ran from Claimant's vehicle a distance of approximately 200 feet west where the walkway ended at a historical marker or sign post. Claimant walked approximately 150 to 160 feet to a picnic table that was located on a concrete pad in a flat clear grassy area to the right of the walkway. Claimant testified that the sidewalk which she had traversed from the car to the picnic table was cracked and uneven. Located on the walkway and adjacent to the picnic table, was a hole or a crater like depression in the blacktop which was approximately 3 to 4 inches deep at its center and approximately 1 foot wide and less than 1 foot long. By her own testimony, Claimant stated that she passed or walked over this depression at least one time and possibly two times on her way first to the picnic table and then subsequently to the historic marker located at the end of the walkway. After viewing the historical marker, an eight-year-old boy who was traveling in Claimant's group began to run back down the walkway toward Claimant's parked vehicle. Claimant testified that she quickened her pace to try to keep the boy in sight and when she reached the depression in the walkway her right foot slipped into the depression. The sudden dip of Claimant's right foot caused her to fall forward to the ground. Claimant alleges she sustained a fractured right knee and right hand as a result of this fall.

Both parties called Jeffrey Naylor, who is the New York State Department of Transportation Assistant Resident Engineer in Residency 6-2 in Cooper Plains which includes this "Ames" rest stop. Mr. Naylor testified that this rest stop is announced to travelers by way of a sign post on Route 17 west in advance of the rest stop. While the sign post invites travelers to stop at this locale there are no toilet facilities available, although picnic benches and a grassy area are provided. There vehicles are invited to stop and the occupants can either rest, get out and stretch their legs, or even enjoy a picnic lunch. Mr. Naylor testified that the physical condition of this rest area is inspected and evaluated approximately every two years by the New York State Department of Transportation Landscape Department. Evaluations of these inspections are prepared and then forwarded to the Resident Engineer for review. The witness testified that while he never personally inspected this rest stop area, he directly oversees those who are responsible for the inspection and maintenance of this area. Moreover, Mr. Naylor testified that portions of the walkway in this area could have been repaired and patched without the necessity of repaving the entire 200 plus feet of the walkway.

Claimant presented Exhibits 18, 19, and 17, which are written inspection/evaluation reports of this "Ames" rest stop area dated January 25, 1993, February 2, 1996, and February 3, 1998, respectively. Each of these three reports describe the condition of the blacktop walkway at this rest stop as "Fair - cracked and uneven." (Cl. Exs. 18, 19, & 17, p 3). In addition, a specific recommendation common to all three of these reports is to "retain" this rest stop but to "rehabilitate and/or reconstruct" the same. (Cl. Exs. 18, 19 & 17, p 5). The rationale for this recommendation is detailed as follows in each report:
[t]his parking area is located on the Southern Tier Expressway which is a major route for commercial and tourist traffic through the Finger Lakes Region and across New York State. As a result, this area receives heavy use from these user groups. (Cl. Exs. 18, 19 & 17, p 5).

The State of New York is subject to the same duty as applies to any landowner, namely exercising reasonable care under the circumstances in order to maintain its property in a safe condition to protect the safety of persons entering upon its property. (
Preston v State of New York, 59 NY2d 997). While the State has a duty to maintain its property it is not an insurer of the same and there is no obligation to guarantee one against injury. (McMullen v State of New York, 199 AD2d 603, lv denied 83 NY2d 753). In order to establish liability in a slip and fall case, Claimant's burden is to establish by a preponderance of the credible evidence that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to correct or warn within a reasonable time; and that said dangerous condition was a proximate cause of the accident. (Gordon v American Museum of Natural History, 67 NY2d 836; Dapp v Larson, 240 AD2d 918).

Claimant contends that her proof at trial, together with the lack of any contradictory proof by the State, supports a finding that this hole equates to a dangerous condition inasmuch as it was approximately 1 foot wide and 3 to 4 inches in depth at the point of her fall. The State argues that the actual depth of this hole could not be conclusively determined by its own witnesses from the photographs and, as such, must be categorized as a de minimus defect. The Court of Appeals has stated that "[t]here is no 'minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable." (
Trincere v County of Suffolk, 90 NY2d 976, 977). The proper inquiry to determine "[w]hether a particular height difference...constitutes a dangerous or defective condition depends on the peculiar facts and circumstances of each case, including the width, depth, elevation, irregularity, and appearance of the defect as well as the time, place, and circumstances of the injury [citation omitted]." (Tesak v Marine Midland Bank, 254 AD2d 717, 718). Although the State is correct that courts have deemed less than 1 inch height differentials to have been de minimus defects, the Court finds Claimant's testimony and proof relative to the dimensions of this hole to be the most credible. (LeGrand v State of New York, 195 AD2d 784, 785, lv denied 82 NY2d 663, amended 83 NY2d 797). As such, the credible evidence presented here supports a finding that this hole was 3 to 4 inches deep at the point of Claimant's fall, even if not uniformly so. Consequently, this Court finds that a hole of these dimensions located on a frequently used sidewalk in a high traffic volume rest stop area on a busy highway constitutes a dangerous condition.

Next, the Court will examine whether or not Claimant established the State had actual or constructive notice of said dangerous condition, since there is no proof the State created the same. With respect to actual notice, Claimant argues the State obtained actual notice of this dangerous condition from the aforementioned reports each of which noted that this walkway's condition was "fair-cracked and uneven". (Cl. Exs. 17-19). The State argues that these reports only provided it with "[a] general awareness of the overall condition of the walkway", rather than notice of a specific dangerous condition at the particular point of Claimant's fall. (State's post-trial memorandum, p. 6). In this Court's view, the State obtained actual notice of this dangerous condition since the State's witness conceded that these reports were generated upon personal inspection of the entire walkway by New York State Transportation Landscape Department employees who, in turn, submitted these reports to the Residency and which were ultimately reviewed by the Resident Engineer. Moreover, any finding to the contrary would allow the State to avoid liability based upon ambiguities in its own form and/or frugal reporting techniques and would provide little incentive, if any, to provide more detailed forms to its employees or more detailed descriptions in said inspection reports. As such, the Court finds that these personal inspections, together with the submitted reports, were sufficient to provide the State actual notice of this defective condition.

In any event, even if this Court were not to consider the State had actual notice of this dangerous condition, the Court finds that the State had, at the very least, constructive notice of the same. The State failed to correct this defect or warn the public thereof within a reasonable time after first learning of this dangerous condition almost five years earlier on January 25, 1993 (the date first of the first inspection report). (Cl. Ex. 18). On January 25, 1993, the State first learned that this rest stop's walkways were "cracked and uneven". Although the report did not specifically say "walkways need to be repaired", the 1993 report and each subsequent report recommended that the rest stop as a whole needed "rehabilitation and/or reconstruction". Therefore, starting in 1993 the State received, through these reports, pertinent pieces of information including that the walkways were cracked and uneven; that this was a high volume rest stop; and the rest stop as a whole needed rehabilitation and/or reconstruction. As such, even though the reports did not explicitly say "repair walkway", the State was provided with sufficient information from which it could have and should have drawn this conclusion. Consequently, the Court finds that this particular depression existed for a sufficient period of time to provide the State constructive notice of the same. (
Gordon v American Museum of Natural History, supra, 67 NY2d 836).

Finally, based upon the credible evidence submitted at trial there can be no dispute but that this dangerous condition was a proximate cause of Claimant's fall and alleged injuries. However, a person is bound to see that by which the proper use of the senses should have been seen. (
Avila v Mellen, 131 AD2d 408). In the instant case the Claimant testified that she walked over this hole in the walkway on at least one and possibly two occasions prior to her fall. Further, Claimant acknowledged that she was distracted by the running of her 8-year-old relative back toward the vehicle causing her to walk faster trying to keep the child in sight. Consequently, it is obvious to this Court that Claimant was not paying attention to where she was walking. Accordingly, Claimant bears a substantial amount of responsibility for her own fall and any injuries attendant thereto.

Based on the foregoing, it is the Court's opinion liability should be apportioned 50% to the State and 50% to the Claimant for any injuries suffered by the Claimant as a result of this accident.

The Court will set this matter down for trial on the issue of damages as soon as practicable.


August 21, 2001
Binghamton, New York

Judge of the Court of Claims

[1]Unless otherwise indicated, all quotations are from the Court's trial notes.