ASHLEY v. THE STATE OF NEW YORK, #2002-016-096, Claim No. 101867
MABLE ASHLEY Caption amended sua sponte to reflect the only proper defendant.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Rebore, Thorpe & Pisarello, P.C.By: William J. Pisarello, Esq.
Eliot Spitzer, Attorney GeneralBy: Ricardo Montano, AAG
October 1, 2002
See also (multicaptioned
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.
number of graduates together with their guests was estimated at two to three
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
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
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
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
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
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
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.
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
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
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
Nonetheless, in evaluating Truesdale's testimony as a whole, it was in fact
sufficiently credible (see
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
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."
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
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)
and Sigue v
, 284 AD2d 246, 727 NYS2d 86 (1st Dept
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
A trial on the matter of damages will be scheduled by the Court.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
October 1, 2002
HON. ALAN C. MARIN
Judge of the Court of Claims
Bonavita testified that the black rubberized
matting used to cover seams had "ribs in them so you have good traction."
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?
As noted earlier, Don testified that this mat
covered the entire gym floor, except for that part under the (permanent)
 Lv denied
89 NY2d 961, 655 NYS2d 881
(1997), rearg denied
89 NY2d 1030, 658 NYS2d 245 (1997), clarification
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
and Eisenberg v East Meadow
Union Free School Dist.
, 291 AD2d 477, 739 NYS2d 390 (2d Dept 2002).