New York State Court of Claims

New York State Court of Claims

MIANO v. STATE OF NEW YORK, #2002-006-94576, Claim No. 94576


Case Information

PHILLIP MIANO The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY & CAMBRIA, LLPBy: Thomas M. Mercure, Esq. and James T. Scime, Esq.
Defendant's attorney:
By: Gregory Miller, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 28, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose on April 11, 1996 at approximately 10:45 a.m. on the campus of State University College (SUC) at Buffalo, Elmwood Avenue, Buffalo, New York. Claimant was walking from Butler Library to Caudell Hall, when he tripped and fell on a large circular pipe protruding above the gravel surface on which he was walking. As a result, claimant sustained an injury to his right knee.

The trial of this claim was bifurcated, and this decision relates only to liability.

The uncontroverted proof at trial indicated an underground waterline ruptured on the SUC at Buffalo campus in late November, 1995. The waterline break occurred in the area of the main quadrangle of the campus. D'Angelo Construction Corporation was contracted to repair the waterline, and apparently began work the end of November, 1995. The area of repair included a large section of the quadrangle directly in front of Butler Library, and extending to the right and left of it. The construction area had previously been a concrete walkway. D'Angelo Construction Corporation completed the repair/replacement of the waterline, and the final inspection of the project took place on December 20, 1995. Thereafter, D'Angelo Construction Corporation was removed from the project, and advised it was to do no further work. As of December 20, 1995, all work on the project had been completed, except the repaving of the construction area. SUC at Buffalo, who was now in control of the construction zone through its personnel, had determined the repaving would not take place until late spring or early summer of 1996. Apparently, this decision was made because of the winter and spring weather conditions. Instead, the top layer of the construction area was filled with gravel and leveled. It remained this way until the repaving took place. On the date of the accident, April 11, 1996, there were no barriers around this construction area or any warning signs of a potentially hazardous area. The construction area was open to all pedestrians for their use in passing through the quadrangle. This quadrangle area was acknowledged to be one of the busiest areas for pedestrian traffic on the SUC at Buffalo campus.

Claimant is currently employed by the City of Tonawanda School District as a science teacher. He received a bachelor of science degree in biology in 1998 from SUC at Buffalo, and thereafter a master's degree from Niagara University. When this accident occurred on April 11, 1996, claimant was a full-time student at SUC at Buffalo.

Claimant testified he had been studying in Butler Library for a couple hours the morning of April 11, 1996. According to claimant, he took a break from his studies, in order to walk to Caudell Hall to check on his teacher's certification in the teacher's certification office there. Caudell Hall is a campus building located to the right of Butler Library as one leaves the library through its main entrance. Claimant stated he left the library through its main door, made a right turn, and walked toward Caudell Hall. Claimant was aware there had been construction in the area over which he was walking, and was aware he was walking on the gravel, which had temporarily been placed in the construction area. As claimant walked toward Caudell Hall over the gravel, he testified he caught his right foot on something, stumbled forward, felt his right knee buckle under him, and then fell to the ground. Claimant stated he looked around after his fall to determine what he had tripped over, and noticed a large circular pipe protruding approximately two to three inches above the gravel. Claimant stated he did not observe this pipe before his fall. The color of the pipe appeared to blend into the surrounding area, Exhibit 35. He conceded his view of the pipe was not impeded by anything. When claimant fell, he was carrying over his shoulder a leather bag, containing his books and supplies, and was wearing sneakers. Claimant stated he sat on the ground for about 30 to 40 seconds to compose himself, and was helped up by two other students. Claimant was then assisted back to Butler Library, where he sat on a stool in the library lobby. According to claimant, he had injured his right knee, and did not believe he was able to walk unaided.

Claimant next spoke briefly with a public safety officer, who had responded to a call of claimant's accident. According to claimant, he told the public safety officer he had fallen outside of Butler Library on the gravel. Claimant did not recall whether or not he had mentioned to the public safety officer that he had tripped on the pipe protruding from the gravel. Thereafter, claimant was aided through the library by another public safety officer to an exit, and driven to his car in a public safety van.

Peter Carey has been employed by SUC at Buffalo as a public safety officer for the past 22 years. He is currently a lieutenant, but as of April 11, 1996 held the rank of officer. Mr. Carey testified he received a call from his dispatcher at approximately 10:45 a.m. on April 11, 1996 to proceed to Butler Library because of an injury. When Mr. Carey arrived at Butler Library, he first observed claimant standing in the lobby. Mr. Carey spoke with claimant regarding the accident for about five to ten minutes, but did not take a written statement from him. According to Mr. Carey, claimant did not want an ambulance called for him. Mr. Carey testified claimant told him he had fallen on the gravel outside, but did not mention tripping over a pipe. Mr. Carey's incident report of this accident (Exhibit 17) stated claimant advised him he fell on the gravel while walking on the sidewalk between the library and Caudell Hall.

Mr. Carey acknowledged the area of claimant's accident was a location where pedestrians were permitted to walk. He described this area as quite busy with pedestrian traffic. According to Mr. Carey, the gravel in the construction area was uneven on the date of this accident. Mr. Carey believed the repaving of the construction area in the quadrangle did not begin until the summer of 1996.

It is well settled that the State of New York is not the insurer of the safety of those who use its facilities and institutions. Tripoli v State of New York, 72 AD2d 823. However, as a landowner, the State is subject to the same rules as a private citizen. Miller v State of New York, 62 NY2d 506; Preston v State of New York, 59 NY2d 997. The State has a duty to exercise reasonable care in maintaining its property in a safe condition in order to prevent the occurrence of foreseeable injuries. Kush v City of Buffalo, 59 NY2d 26; Basso v Miller, 40 NY2d 233; Mesick v State of New York, 118 AD2d 214, lv denied, 68 NY2d 611. Also, the State has a duty to warn users of its property of any dangers not readily apparent, but there is no duty to warn against a condition, which is open, obvious, and readily observed by the reasonable use of the senses. Tarrazi v 2025 Richmond Avenue Associates, Inc., 260 AD2d 468; Paulo v Great Atlantic & Pacific Tea Company, 233 AD2d 380; Walter v State of New York, 185 AD2d 536. A claimant is bound to see that which is readily observable by the proper use of his/her senses. Weigand v United Traction Company, 221 NY 39, Coote v Niagara Mohawk Power Corporation, 234 AD2d 907; Avila v Mellen, 131 AD2d 408. Furthermore, in order for liability to be established, a claimant must establish there was actual or constructive notice of the hazard or that the State created the alleged hazardous condition. Gordon v American Museum of Natural History, 67 NY2d 836; Lewis v Metropolitan Transportation Authority, 99 AD2d 246, affd 64 NY2d 670; Rinaldi v State of New York, 49 AD2d 361. Notice is not an issue here, because the defendant created the alleged hazardous condition.

As the court stated at the conclusion of the trial of this claim, it found both witnesses to be credible. The court finds this accident occurred as claimant testified. He was walking from Butler Library to Caudell Hall over gravel, which had been placed as a substitute for a concrete walkway, when he tripped and fell over a large circular pipe protruding above the gravel. Exhibit 35 is a photograph of the pipe over which claimant tripped. It looks rust covered and, appears to be approximately 3 inches above the surface of the gravel, over which the claimant was walking. Claimant's brother took this photograph, along with others, the day after the accident. Another large circular pipe, is adjacent to this pipe and approximately 2 to 3 feet away from it. However, the gravel has been spread around this pipe so that it is level with the surface of the gravel walkway.

The court does not find there was a duty on the part of the defendant to warn pedestrians of the condition of the pipe, because the condition was open, obvious, and readily observable. However, the court does find the defendant has breached its duty to use reasonable care in maintaining its property in a safe condition to prevent the occurrence of a foreseeable injury. The defendant was aware the area in which this pipe was located was one of the busiest areas of the SUC at Buffalo campus for pedestrian traffic. The defendant had permitted pedestrian traffic in this area for a lengthy period of time, yet it appears took no steps to make the area around this pipe safe for pedestrian traffic. Additional gravel could have been spread around this pipe in order to make it level with the gravel walking surface. The testimony at trial indicated there was plenty of stockpiled gravel for this purpose. A small barricade could have easily been placed around the pipe to steer pedestrians away from it. Also, the pipe could have been painted a bright contrasting color. The position of this pipe was a foreseeable hazardous condition, which the defendant ignored, and led to and was the proximate cause of claimant's fall and injury. Consequently, the court finds the defendant was negligent in permitting the condition of this pipe to exist under the circumstances presented here.

However, claimant is not without substantial fault here, because he failed to see that which he should have observed by the proper use of his senses. The pipe over which claimant tripped was readily observable to anybody walking in the area, who was paying attention to where he/she was going. It was daylight when this accident occurred, and there was nothing impeding claimant's vision of the pipe.

Based upon the foregoing, the court finds the defendant 35% responsible for claimant's accident and resulting injuries, and the claimant 65% responsible, because of his inattentiveness. The damage trial shall be held as soon as practicable.


June 28, 2002
Buffalo, New York

Judge of the Court of Claims