New York State Court of Claims

New York State Court of Claims

ASHLEY v. THE STATE OF NEW YORK, #2002-016-096, Claim No. 101867


Case Information

MABLE ASHLEY Caption amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended sua sponte to reflect 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:
Rebore, Thorpe & Pisarello, P.C.By: William J. Pisarello, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ricardo Montano, AAG
Third-party defendant's attorney:

Signature date:
October 1, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the trial on liability of the claim of Mable Ashley, who was injured at the Stony Brook campus of the State University on May 14, 1999. Mrs. Ashley was attending the graduation of her granddaughter at Stony Brook, where she tripped and fell when leaving the ceremony.

At trial, Mrs. Ashley and granddaughter Amelia Truesdale testified. Claimant also put on the stand Linda K. Don, the managing director of the sports complex at Stony Brook - - the event took place in a gymnasium. Defendant called Anthony Bonavita, whose title was similar to Ms. Don's -- director of operations at Stony Brook University athletics.

The larger, university-wide commencement festivities were conducted that morning. In the afternoon, the graduates were divided into the various disciplines to receive their degrees. Ms. Truesdale was awarded a baccalaureate in social sciences at a ceremony held in Pritchard
Pritchard was described by Ms. Don as big enough so that "three basketball courts fit in it."
Two groups of chairs, separated by a center aisle, were arranged in front of a stage that was set up for the ceremony. There were double-wide doors opposite the stage in the rear which were used that day by the guests. The graduates exited through these rear doors, but had entered from the side. The number of graduates together with their guests was estimated at two to three hundred.
Following the conclusion of the ceremony, Amelia walked back to where her grandmother was seated. Claimant and her small party of friends and relatives began to exit. Mrs. Ashley moved out of her row and started back down the center aisle away from the stage (cl exh 2). Picking up the narrative from claimant's vantage:
Well, we were walking...and all of a sudden, my foot caught something and I threw up my hands to catch somebody and try to reach, but I couldn't catch anyone and my head hit the floor...My shoe caught onto the rug.
It was undisputed that there was some sort of covering placed on the basketball courts, but as to the specifics thereof, the witnesses had differing recollections. Amelia Truesdale testified at some length on the subject and sketched the diagram of Pritchard that became claimant's exhibit 2. Truesdale noticed when she entered Pritchard, a plastic that appeared to be brown had been put down on the gym floor. Truesdale recalled that there was matting down the center aisle which she characterized as a catwalk and also brownish in color. The witness described this matting as having a texture not quite like that of a carpet, but closer to that of carpet than of vinyl.
Truesdale also testified to a third type of fabric on the floor. She recalled that crosswise to the catwalk,
or runner, there was another mat, apparently placed there to create a path for the graduates who, as indicated, entered the room from the side. It was thinner than the runner and of a shade similar to the other two coverings. Truesdale maintained that her grandmother fell where the two mats crossed (see cl exh 2), and "when I knelt down to her when she was on the floor...[t]he edge of her foot was under the mat." Truesdale added that she noticed silver duct tape elsewhere in the gymnasium securing the fabrics, although not where claimant fell.
Mr. Bonavita testified that it was his job to oversee all the athletic facility operations at Stony Brook, which included
"the event management staff, the maintenance staff and custodial staff that [make] up the daily operations such as setups for games [and] special events, such as commencement..." His recollection of the manner in which the floor at Pritchard was covered that day is at variance from Truesdale's.
Bonavita said there was a red vinyl mat, an eighth of an inch thick and a narrow, 4 foot-wide, black rubberized mat which was ordinarily used to cover wires or a
"lot of seams [that] come together." This black mat was duct taped along the edges and was also one eighth of an inch thick. The vinyl which generally covers the floor was also protecting the center aisle, but there was no specific runner in the aisle. He recalls inspecting Pritchard before the ceremony and asserted that if any of the taping were not secure, he would have had the situation remedied. Bonavita explained that of a "thousand" events, none was ever arranged with a runner going down the center aisle between the chairs.
For her part, Ms. Don said that a vinyl covering extended over the entire gymnasium floor except under the bleachers and that
"[r]ubber mat runners were placed in various areas...Usually in a traffic area where ... the vinyl floor matting seams came together." She stated for a particular day like that May 14th, she did not have a specific recollection of the positions of the runners. Don responded in the negative when asked whether there was a long, rubber mat that went down the center aisle. However, as the questioning continued, the witness conceded that there was something crossing the aisle on top of the vinyl mat:
Q. Were there any seams in that center aisle of the vinyl? A. Not that I recall.

Q...If one were to exit...and walk straight to the back to the rear entrances, would one have to cross any of those rubber mats that you spoke of earlier? A. Yes.

Q. How many would one have to cross? A. One that I recall...[it was] from three to five feet wide.
As to the fastening, Don testified that every mat was securely taped, with silver duct tape, either to another mat or to the wooden floor, although her deposition testimony was that the black rubber mats were not taped to the vinyl below.

While Ms. Truesdale's testimony included many vivid touches that are often a sign of authenticity, in her case on the other hand, the number and nature of these touches may well mean that significant portions of her testimony were contrived or at least embellished. Truesdale testified that she herself tripped, but couched it in confusing language: "When we were walking up, I did trip. Not to fall, but to catch the step across the mats and going up the middle."
Truesdale had a colorful recollection about her grandmother's apparel that day; recalled that the stretcher brought to assist Mrs. Ashley had gotten momentarily stuck on the floor coverings; and described the vinyl as having sheet-like ripples.
Nonetheless, in evaluating Truesdale's testimony as a whole, it was in fact sufficiently credible (see
PJI 1:8 and 1:60). Her statement was consistent with the brief, but very credible, testimony of her grandmother on an essential fact, namely, that claimant's shoe got caught on or under the mat (or rug as Ashley called it). Moreover, Truesdale's testimony was essentially consistent with Don's to the effect that the center aisle was not a smooth surface, even assuming the red vinyl mat was smooth - - it had at least one strip of rubber mat across it. The larger point in all this is that the flooring or covering that day was temporary in nature and not primarily there to offer traction[1] to the graduates and their guests, but to protect the basketball floor. That may explain why Bonavita took such note of claimant's footwear: "She was definitely wearing high heeled shoes with a spike on them."[2]
Bonavita explained that:
"It's a basketball type wood floor." "Q. ..[I]t's specially treated wood, is it not? A. Yes...[i]f it's going to be an event that we're putting either chairs down or stage or people are going to be walking on it for, you know, that has nothing to do with like an athletic competition, then we cover it with a vinyl cover...[this is]... a red colored vinyl matting that is sold specifically to cover gymnasium floors."
The defendant created this unsafe condition. It was aware of the problem with the chosen method of gymnasium floor covering, as is evidenced by defendant's emphasis on the taping of every seam. The preponderance of the credible testimony is that such was not done, or that if the seams were smoothly taped,
some became undone. The latter result was foreseeable given the few hundred persons traversing this ad hoc surface and given the temporary placement of over one hundred chairs on the red vinyl mat.[3] Nor were there any cautionary signs or other visual cues placed on the premises by defendant which could have assisted the visitors. While the facts here present a harder case for claimant to make than, for example, a wet spot on the floor that could be cordoned off, the liability of the defendant is nonetheless implicated. PJI 2:10; 2:12 and 2:90. See for example, Bernstein v Red Apple Supermarkets, 227 AD2d 264, 642 NYS2d 303 (1st Dept 1996)[4] and Sigue v Chemical Bank, 284 AD2d 246, 727 NYS2d 86 (1st Dept 2001).
With that said, claimant is not lacking in responsibility for her fall. It was a day of celebration and excitement with one's focus naturally directed elsewhere than to the arrangement of the floor mats. Nonetheless, it was Mrs. Ashley's first time at the Pritchard facility and she should have been more alert, especially inasmuch as she relies upon Truesdale's testimony to support her claim, which testimony included a number of problems with the floor covering that were easily observable. Truesdale had asserted: "we had to step over the plastic. Not step over, but we had to be a little more careful with - - when we walked on the plastic ...[As to the mat or mats,]
you had to pay attention to your step because when you walked over, it wasn't flat like the rest of it."
Mrs. Ashley testified that she did not see the area where she fell prior to her fall. Claimant left the same way she entered; she had had an opportunity to notice the way Pritchard was set up.
Furthermore, when Ashley exited the proceedings, she was walking by herself because the rest of her party were talking among themselves. In conclusion, claimant should bear one-third of the responsibility for her fall.
In view of the foregoing, I find the defendant to be
66 2/3% liable for the May 14, 1999 injury to Mable Ashley and the injuries resulting therefrom. All motions not previously ruled upon are deemed denied.
A trial on the matter of damages will be scheduled by the Court.


October 1, 2002
New York, New York

Judge of the Court of Claims

[1] Bonavita testified that the black rubberized matting used to cover seams had "ribs in them so you have good traction."

[2] Ashley said that she had given up high heels years before, although at some point testimony was elicited from her that the heels in question were an inch and a half high, and Truesdale stated that when she said Ashley was wearing a flat-soled shoe she meant one with a three-quarter inch heel. Either recollection probably does not conjure up the spike heel that Bonavita testified he saw on claimant. Be that as it may, do not the family and friends of the graduate have the right to dress up on her big day?

[3]As noted earlier, Don testified that this mat covered the entire gym floor, except for that part under the (permanent) bleachers.

[4] Lv denied 89 NY2d 961, 655 NYS2d 881 (1997), rearg denied 89 NY2d 1030, 658 NYS2d 245 (1997), clarification dismissed 90 NY2d 921, 664 NYS2d 256 (1997). Ashley's case falls within the class of cases for which the determination of liability lies with the trier-of-fact; see Bernstein, supra and Eisenberg v East Meadow Union Free School Dist., 291 AD2d 477, 739 NYS2d 390 (2d Dept 2002).