In this claim, claimant seeks to recover for personal injuries allegedly
sustained by her when she tripped and fell on the campus of the State University
of New York at Oswego (SUNY Oswego). The trial of this claim was bifurcated and
this decision addresses the issue of liability only.
Claimant alleges that the State is liable for the injuries sustained by her
resulting from a fall that occurred on April 6, 1998, on a sidewalk located on
the SUNY Oswego campus. On that date, claimant was visiting the school for an
open house with her son who was considering the possibility of enrolling in that
institution for his college education. Claimant fell on a sidewalk in front of
a dormitory known as Seneca Hall, which is located directly across a roadway
from Lake Ontario.
Claimant testified that at the time of her fall, she was walking with her son
and three other acquaintances as they approached Seneca Hall. The weather
conditions were clear, and although somewhat overcast, there was no rain or snow
at the time of the accident. Claimant testified that it was a "nice spring
Claimant testified that she was walking towards Seneca Hall when "the next
thing I knew I was on the ground and in considerable pain". She had no other
recollection as to what she was doing prior to the time of the fall, but did
remember that she had stepped on a crack which caused her to fall. No one else
in her group fell or tripped on this crack. Claimant further testified that she
did not see the crack prior to her fall.
Following the accident, a report (Exhibit 12) was prepared by a security
officer for SUNY Oswego, which described this crack as "significant". Testimony
from all witnesses, as well as photographs of the accident site (Exhibits 1
through 11, inclusive) confirm that this crack created an elevation differential
between concrete slabs of approximately one inch.
George Stooks, Director of Facilities Operations at SUNY Oswego at the time of
the accident, testified that he considered the condition of the sidewalk to be a
"minimal" defect. He testified that conditions at the campus which require
repairs are classified on a priority system, and those with a high priority are
addressed before those with a low or "routine" priority, such as the one in
question in this claim.
Mr. Stooks also testified that he personally reviewed the repair and
maintenance records at SUNY Oswego and found no indication that SUNY Oswego had
received any notice of this sidewalk crack prior to the date of claimant's fall.
Mr. Stooks further testified that he personally was not aware of this crack in
the sidewalk prior to the accident.
Irving Paris, an architect who practices in the Albany area, qualified as an
expert and testified on behalf of claimant. Although he had never viewed the
accident site, he examined the photographs of the sidewalk crack (Exhibits 1
through 11, inclusive) and concluded that the crack had existed for two to three
years. He essentially based his conclusion on the fact that there were no
concrete chips or materials in the space, and the absence of such materials
indicated that the crack was not of recent vintage. He testified that he would
have assessed the condition of this sidewalk as a high priority with regard to
the timing of repairs.
Douglas Barlow, a local architect, testified as an expert for the defendant.
He stated that it was not possible to precisely determine the age of the crack
in the sidewalk, but that the "heaving" of the sidewalk, attributable to the
freeze-thaw cycle common in central New York winters, could have occurred in the
He did not attach the same significance to the absence of concrete chips or
materials in the crack as was made by Mr. Paris, claimant's expert. He
mentioned several possible explanations for the absence of such debris other
than the passage of time, such as wind, snow removal operations, rain and/or
Like any landowner, the State has a duty to the public to maintain its property
in a reasonably safe condition (Preston v State of New York
, 59 NY2d 997;
Gramm v State of New York
, 28 AD2d 787, affd
21 NY2d 1025;
Basso v Miller
, 40 NY2d 233). The State, however, is not the insurer of
the safety of all those coming onto its premises, and negligence is not to be
inferred solely from the occurrence of an accident (Mochen v State of New
, 57 AD2d 719).
In order to establish a
claim of negligence, a claimant must prove, by a
preponderance of the evidence, the existence of a foreseeably dangerous
condition, that the State had notice (actual or constructive) of the condition
and failed to remedy it, and that the dangerous condition was a proximate cause
of the injury (Gordon v American Museum of Natural History
, 67 NY2d 836).
The Court will first address the threshold issue of notice.
Although claimant has inferred that the State had actual notice of this
condition, there was no testimony or documentary evidence introduced to
establish that such notice did exist. In fact, as previously mentioned herein,
defendant's witness, Mr. Stooks, stated categorically that in his capacity as
the Director of Facilities Operations at SUNY Oswego he made a personal review
of the repair and maintenance records of the campus and did not find any record
that the facility had notice of the sidewalk crack prior to claimant's fall. He
also testified that he had no personal knowledge of the sidewalk crack prior to
this incident. Accordingly, the Court must find that actual notice has not been
In order to establish constructive notice, the defect in question must be
visible and apparent, and must have existed for a sufficient length of time so
that the defendant would have had an opportunity both to discover and remedy the
Gordon v American Museum of Natural History
Claimant attempted to establish such constructive notice through the testimony
of her expert, Irving Paris. As noted previously, Mr. Paris did not make a
personal visit to examine the area in question and based his opinion on
photographs admitted into evidence (Exhibits 1 through 11, inclusive). Based on
his examination of the photographs, and the absence of concrete chips within the
crack, Mr. Paris concluded that the sidewalk crack had existed for several years
prior to claimant's fall. In addition to his analysis of the photographs, Mr.
Paris also testified about the weather conditions which existed in the Oswego
area. Mr. Paris, however, testified that he had never done any architectural
work in the Syracuse area, and in the Court's opinion, evidenced minimal
knowledge of weather conditions in the Oswego area. In particular, the rather
harsh weather conditions common to the Oswego region, and the location of the
SUNY campus immediately adjacent to Lake Ontario, did not appear to be
acknowledged by this witness.
The Court finds that the testimony of Mr. Paris, when considered against the
testimony of defendant's expert witness, Mr. Barlow, has failed to establish, by
a preponderance of the evidence, that the State should be charged with
constructive notice of the condition of the sidewalk.
After careful consideration of all the testimony and documentary evidence that
was presented, the Court must and does conclude that the threshold issue of
constructive or actual notice, a prerequisite to any possible finding of
liability, has not been met by claimant. Accordingly, this claim must of
Since claimant has failed to establish the existence of either constructive or
actual notice, all other issues, such as proximate cause and whether the crack
in the sidewalk was dangerous or defective, have been rendered moot.
Accordingly, the claimant's claim against the defendant State of New York is
Any motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.