New York State Court of Claims

New York State Court of Claims

PETRISCH v. STATE OF NEW YORK, #2002-005-016, Claim No. 99869


Synopsis


Claimant was struck by pieces of cement falling from a bridge while walking on a sidewalk at SUNY Stony Brook. Pursuant to the doctrine of res ipsa loquitur, the State of New York was found liable in damages.

Case Information

UID:
2002-005-016
Claimant(s):
MARK PETRISCH I have corrected the caption, sua sponte, to reflect the only proper Defendant herein, the State of New York.
Claimant short name:
PETRISCH
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
I have corrected the caption, sua sponte, to reflect the only proper Defendant herein, the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99869
Motion number(s):

Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Gary W. Gramer & AssociatesBy: Gary W. Gramer
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 31, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, a student at the Stony Brook campus of the State University of New York (SUNY), alleges that he sustained personal injury when struck by pieces of cement falling from a bridge leading to the Student Union Building while on campus. The claim is bifurcated and this decision addresses the issues of liability only.

On March 9, 1998, Claimant was coming from the Physics Building where he had attended class and was en route to the Student Union Building. While Claimant was walking on a sidewalk, approaching the Student Union Building, he was struck by some combination of "cement and debris" that fell some thirty feet from under the bridge leading to the Student Union Building.[1]
Claimant then fell to the ground and eventually was taken to the University Hospital. There were no warning signs, alerts, or barricades at the sidewalk under the bridge at the location of this accident. In other words, Claimant was walking on a public sidewalk, as any other pedestrian was able to do, when through no fault of his own he was struck by this falling debris.
The SUNY Police Department investigated this accident and interviewed the Claimant. The investigating officer saw no visible injury to Claimant's head. The same officer saw "small fragments" on the ground at the site of this accident, but not "any large objects or boulders," just "small pebble-like matter." He prepared an incident report concerning the Claimant which stated "no visible injury although victim complained of pain" and then "transported the victim to the University hospital for treatment and evaluation."[2]

The senior building manager for the Stony Brook Student Union testified that she was in her office in the Student Union when this accident occurred. The Claimant personally spoke with the manager after being struck and this manager also did not notice any injury to Claimant. However, similar to the SUNY police officer, the manager viewed the accident scene directly afterwards and saw "medium size cement on the floor." Thereafter, SUNY maintenance staff came to clean up the area, and the environmental health and safety personnel then cordoned the area off. At the scene the manager looked up to see where the debris had come from and noticed "it came from the bottom of the bridge." She remembered a metal rod "hanging from up top" after the accident. The description of this metal rod is consistent with what is commonly called rebar.

I find that the Claimant, while lawfully on SUNY premises under the full and complete control of the Defendant, and while innocently perambulating on a public walkway, was struck by falling debris and sustained injury. I find that the debris consisted of small and also substantial pieces of cement as shown in Exhibit 3.

The Defendant is correct in that no evidence was presented demonstrating that the State either created a dangerous condition or that it had actual or constructive notice of a dangerous condition. No evidence of any prior similar incidents, or any complaints was presented. The Defendant, like any other party, is responsible, in the operation and management of its institutions, only for hazards reasonably to be foreseen (
see, Flaherty v State of New York, 296 NY 342, 346) and the duty to exercise reasonable care under the circumstances (see, Miller v State of New York, 62 NY2d 506, 513).
In the absence of any such proof, Claimant relies upon the doctrine of
res ipsa loquitur, which permits an inference of negligence to be drawn from the circumstances of the occurrence, but creates no presumption in a claimant's favor (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226). To be successful on a theory of res ipsa loquitur, one must establish: (1) the event must be of a kind which ordinarily does not occur in the absence of negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the claimant (Corcoran v Banner Super Market, 19 NY2d 425, 430).
Defendant did not prove that the Claimant did anything to contribute to this incident. The Defendant asserts that the Claimant did not prove that the walkway in question, from which the debris fell, was in the exclusive control of the State. This walkway and the sidewalk beneath were part of the SUNY campus at Stony Brook, and I decline to infer, as Defendant would have me do, that, because some of the hundreds of structures located on the campus are allegedly owned and occupied by outside organizations, the Defendant did not have exclusive control of the instant walkway. Claimant has satisfied this element of the theory. Third, in considering whether this event is one that ordinarily would not occur in the absence of negligence, it is hard to fathom that the falling debris, consisting of small and middle size pieces of cement (i.e., the credible testimony of the senior building manager at the Student Union) leaving a hanging rebar, could have fallen unless there was negligent maintenance or inspection, something more than just an inference of negligence (
Dermatossian v New York City Tr. Auth., supra, 67 NY2d 219).
I find that Claimant has established the necessary elements of a theory of
res ipsa loquitur, and that the Defendant is liable to the Claimant for those injuries that can be shown have been proximately caused by the falling debris.
All motions not heretofore decided are denied. Let Interlocutory Judgment be entered. The Clerk shall set this matter down for a trial on the question of damages.


December 31, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims




  1. [1]Exhibit 3.
  2. [2]Exhibit 1.