New York State Court of Claims

New York State Court of Claims

O'NEILL v. THE STATE OF NEW YORK, #2001-028-018, Claim No. 101424


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:
Defendant's attorney:
BY: Belinda A. Wagner, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 14, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

This claim involves a fall down accident which occurred on January 6, 1998 at approximately 9:30 a.m. at a New York State owned building located at the Latham, New York offices of the Division of Military and Naval Affairs (DMNA). At the time of this accident,

Claimant, Kimberly O'Neill, was employed by Pioneer Café Company, the entity which provided cafeteria services at the aforementioned DMNA facility. She had worked for this company at the DMNA cafeteria for just four months before the subject accident occurred. Her job responsibilities included cleaning the kitchen, working the cash register and salad preparation.
On or about December 3, 1997, Claimant recalls that the Apex Company (Apex) was called in to unclog a drain located on the kitchen floor of the cafeteria. In the process of unclogging this drain, Apex removed the drain cover to snake the drain clean. Apparently, the three, 3/4 inch, brass screws which held the drain cover in place were broken to permit removal of the cover. After the drain was cleaned, Apex replaced the drain cover. However, Apex failed to replace any of the screws. Claimant became aware of this condition on the same day it was created. Likewise, the Defendant became aware of this defective condition on December 3, 1997 when the cafeteria manager contacted John Fallarino, the Facility Superintendent.

John Fallarino testified that on December 3, 1997 he was advised by the cafeteria manager that the drain was loose. Superintendent Fallarino personally came to the scene to inspect the subject drain. He observed that none of the three brass screws were present. While the cover was therefore in an unsecured state, it nevertheless was positioned appropriately upon the metal seating located on the inside edge of the drain; and thus sat flush with the surrounding floor. Superintendent Fallarino learned from the cafeteria manager that he had called Apex seeking to have someone return to finish the job. Apparently, his call fell upon deaf ears. Fallarino, advised the cafeteria manager that he would take care of the situation. Notwithstanding this representation, superintendent Fallarino did not repair the defect until after the subject accident occurred.

As noted above, Claimant was aware of the defective condition. As part of her job responsibilities she was caused to sweep and mop the kitchen floor on a daily basis. Furthermore, given the tight quarters the employees had to negotiate while working in the kitchen (as demonstrated by the video of the kitchen submitted by Claimant, [Exhibit 1]) and considering the chores Claimant had to perform, undoubtedly, she walked near, over and around the subject drain the four plus weeks it remained in an unsecured state.

At the time Claimant fell she stated she was walking from the "prepared foods coolers", where she had just retrieved a container of mushrooms, to the sink where she planned to wash the mushrooms. As Claimant walked toward the sink, between the coolers and sink, she saw a co-worker standing near the meat and dairy refrigerator located to Claimant's left. There was also a food cart between her and the sink. Finally, Claimant testified there were other objects laying on a shelf beneath a counter which were protruding into the walkway. Consequently, as she walked to the sink, she did so in a zigzag manner in order to avoid coming into contact with her co-employee or other object. This appears to be the excuse Claimant has given for failing to avoid walking upon the drain cover at that time. Upon questioning by the Court, Claimant advised that from December 3, 1997 to January 6, 1998 she was able to successfully avoid walking upon the subject drain and cover.

To this day, Claimant does not know specifically the mechanics of her fall. She does know that there was neither water or other liquid on the floor, nor was there any foreign matter upon the floor which caused her to slip. Furthermore, she lost her footing and balance, fell to the floor upon her right knee and was thereafter assisted by a co-employee to a sitting position, all in close proximity to the subject drain. After she fell, she observed the drain cover laying on the floor a short distance from the uncovered drain.

It appears from the testimony that when Claimant stepped upon the drain cover it shifted under her weight and thereby caused her to lose her balance and fall to the floor. Whether the cover shifted and Claimant slid forward with her foot on the cover thereby losing her balance, or, whether the Claimant's foot actually became caught in the drain causing her to trip, is immaterial. The fact remains that she fell as a direct result of walking upon an unsecured drain cover.

The State as landowner is subject to the same rules governing private landowners (
Preston v State of New York, 59 NY2d 997). In that role, the State has a duty to use reasonable care in maintaining its property in a reasonably safe condition in view of all the circumstances (Basso v Miller, 40 NY2d 233; Preston v State of New York, supra). Such a duty, however, is not without limit. The State is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see, Killeen v State of New York, 66 NY2d 850; Clairmont v State of New York, 277 AD2d 767; Condon v State of New York, 193 AD2d 874).
In order to make a prima facie case of the State's negligence as landowner, a claimant must show 1) the existence of a foreseeably dangerous condition; 2) that the State created the condition or had either actual or constructive notice of the condition; 3) that the State failed to remedy the condition within a reasonable time; 4) that such condition was a proximate cause of claimant's accident; and 5) that claimant sustained damages (
see, Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Browne v Big V Supermarkets, 188 AD2d 798, lv denied 81 NY2d 708).
In the instant case, there clearly existed a foreseeably dangerous condition. The three brass screws that were designed to secure the drain cover had been missing since December 3, 1997. Claimant testified that the drain cover would move when she applied pressure on it while mopping the kitchen floor. Furthermore, given the tight quarters employees had to negotiate while working in the kitchen and considering the daily chores claimant had to perform, it was clearly foreseeable that sooner or later someone would walk upon the drain cover (
see, Comeau v Wray, 241 AD2d 602). The Court also finds, in light of maintenance superintendent Fallarino's testimony, that the State had actual notice of the loose drain cover and failed to repair it for over four weeks.
Defendant suggests that Claimant's inability to articulate the exact mechanics of her fall equates to a lack of proximate cause. It is true that Claimant was unable to state whether she lost her balance and fell because the drain cover shifted under her weight or because her foot dropped into the recessed area of the drain, causing her to trip. She also noted there was no liquid or any foreign matter upon the floor which caused her to slip. She fell in very close proximity to the drain, and then observed the drain cover laying on the floor a short distance from the uncovered drain. This testimony, absent any contrary thereto, has convinced the Court that the negligence of the Defendant in failing to secure the subject drain cover was a proximate cause of the happening of the accident.

Claimant, was not entirely without fault in the accident. A person is bound to see that which by the proper uses of his senses should have been seen (see,
Patrie v Gorton, 267 AD2d 582; Tarricone v State of New York, 175 AD2d 308, lv denied 78 NY2d 862). Here, claimant knew the drain cover's defective condition. Instead of watching her step while proceeding to the sink, claimant admitted upon direct questioning by the Court that she was looking straight ahead and therefore did not watch her step. However, given the tight quarters claimant had to negotiate in order to avoid coming in contact with another co-worker and various objects in the walkway, her negligence in failing to observe her step was minor.
Based upon the evidence presented, the Court finds that liability should be apportioned 90% to the State and 10% to claimant.


August 14, 2001
Albany, New York

Judge of the Court of Claims