New York State Court of Claims

New York State Court of Claims

ROGERS v. THE STATE OF NEW YORK, #2002-028-507, Claim No. 97610


Claimant failed to establish that alleged unsafe slope of pedestrian ramp side splay was proximate cause of her fall. Claim dismissed.

Case Information

GLORIA ROGERS The caption has been amended sua sponte to reflect the discontinuance of Joseph Rogers' derivative claim per order dated February 27, 2001.
Claimant short name:
Footnote (claimant name) :
The caption has been amended sua sponte to reflect the discontinuance of Joseph Rogers' derivative claim per order dated February 27, 2001.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
ELOVICH & ADELLBY: Glenn L. Sabele, Esq.
Defendant's attorney:
BY: John M. Shields, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


This Claim seeks damages for injuries sustained by Claimant, Gloria Rogers, (Claimant) on January 11, 1997 when she fell while attempting to access the sidewalk at the corner of Laurelton Boulevard and West Park Avenue in the City of Long Beach, New York. Claimant alleges the Defendant was negligent when it constructed the sidewalk/handicap ramp[1] with a left side splay that was too steep. Trial of this action was bifurcated and this decision addresses only the issue of liability.

In the pre-dawn hours of Saturday, January 11, 1997 the Claimant left her home on West Park Avenue in Long Beach, New York intending to walk to the Laurel Luncheonette for a cup of coffee before continuing on to work for her 7:00 a.m. starting time. Claimant testified she was wearing flat soled rubber boots. As Claimant approached the intersection of West Park Avenue and Laurelton Boulevard, it was dark and snowing; approximately six inches of snow covered the ground. Up to that point in time, she had no difficulty with her footing. Claimant then proceeded to cross the street in a westerly direction from the southeast corner of the intersection to the southwest corner where the Laurel Luncheonette was located. Claimant testified she was familiar with the area and was aware of the sidewalk curb ramp at the southwest corner. As she approached the corner, she was unable to see the curb due to the snow accumulation. Claimant testified that because she knew "where the ramp is"[2] she moved to the right to gain access to the ramp and sidewalk. Claimant testified that as she stepped down with her left foot she "hit something hard," turned her ankle and fell forward. Claimant was assisted to her feet by a Laurel Luncheonette employee.

Claimant's safety consultant, William Marletta (Marletta), examined the accident location, took photographs (Exhibits 1, 3, 4, 5 and 6) and made measurements of the sidewalk curb ramp. Marletta testified the sidewalk curb ramp at this corner had three components, a center or "square section" and two triangular shaped side splays. In addition to distance measurements, Marletta took "slope meter readings" using a "digital slope meter"(Exhibit 6) to determine, inter alia, the angles of the side splays. In forming his opinion, Marletta relied, inter alia, upon 17 NYCRR Part 170 captioned "Construction of Curbing for Physically Handicapped Persons" (Exhibit 8). Marletta testified the pertinent regulations (Exhibit 8, Part 170.4) called for a side flare or splay for existing construction with a maximum allowable slope of 1 on 8 or 7.1 degrees.[3] Marletta offered his opinion that the angle of the left side splay, which he measured as being 17.6 degrees toward center 12 inches from the curb and 13.0 degrees toward center 22 inches from the curb[4], was in violation of the rules and constituted "a dangerous condition, a departure from good and accepted safe practice and can be anticipated to cause misstep, ankle roll, slippage and it is a recognized industry hazard." Marletta stated the angle of the side splay was too steep and that this angle contributed to the accident.

Bruce Savik, a licensed civil engineer employed by the defendant, testifed on defendant's behalf. Savik testified he reviewed Marletta's measurements and converted the degrees to ratios.

Savik testified that using Marletta's numbers, the 13 degree slope of the left splay would result in the sidewalk curb ramp rising 11 ½ inches over its 51-inch depth and using Marletta's 17.6 degree of slope, the sidewalk curb ramp would rise 15 ½ inches over the same distance[5]. Savik's testimony confirmed that the acceptable slope for a sidewalk curb ramp at an existing location was between 1 on 8 and 1 on 10 and he did not dispute that the slopes as measured by claimant would violate the applicable regulations. Savik made no independent investigation or measurements of the accident location.

The Court must first address the argument advanced by Defendant that upon completion of the contract Highway Law § 140 absolves the Defendant of all liability, even where, as here, it is contended the Defendant created the dangerous condition. Defendant relies upon Van Etten v State of New York, 103 Misc 2d 487, affd on op below 83 AD2d 963, for the proposition that the relevant statutory provisions absolve the State from liability even for its alleged improper construction of a sidewalk. Van Etten does not reach such a conclusion; rather, the Court found the Claimant failed to establish the State constructed the at-issue top sidewalk (Van Etten v State of New York, 103 Misc 2d at 489). There is a suggestion that the duty of maintenance would include the "abatement of the claimed dangerous condition" (Van Etten v State of New York, 103 Misc 2d at 491, footnote 3). However, a careful reading of Van Etten reveals that the Court was rejecting a continuing duty of maintenance from the lower sidewalk (Id.). Thus, this Court, finds that the cited statutory provisions and Van Etten do not preclude a liability claim against the State for its alleged creation of a dangerous condition, the at-issue ramp (see also, Espinal v Melville Snow Contrs., Inc., 98 NY2d 136, 141-142 [a defendant who undertakes to render services and then negligently creates or exacerbates a dangerous condition may be liable for any resulting injury]).

In order to prevail in this action, Claimant must show: 1) the existence of a dangerous condition; 2) that the State created the condition or had either actual or constructive notice of the condition; 3) that the State failed to remedy the condition within a reasonable time; 4) that such condition was a proximate cause of Claimant's accident; and 5) that Claimant sustained damages (see, Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955). Where it is established that the defendant is responsible for affirmatively creating a dangerous or defective condition (see, Safran v Man-Dell Stores, 106 AD2d 560, 562), Claimant need not offer proof on the element of notice (see, Cruz v City of New York, 218 AD2d 546; Kelly v City of New York, 172 AD2d 350; Lacey v Horan, 119 AD2d 806, 807; see also, Poirier v City of Schenectady, 85 NY2d 310, 315; Monteleone v Incorporated Vil. of Floral Park, 74 NY2d 917, 919). The State's construction of the at-issue sidewalk curb ramp was established.[6]

Moreover, "[n]egligence cannot be presumed from the mere happening of an accident. It is incumbent upon the part of claimant to show affirmatively by competent evidence that the injury complained of was caused by reason of some breach of duty by the State. Negligence must be proven" (Mochen v State of New York, 57 AD2d 719, 720).

Assuming arguendo, that the State was negligent in constructing the at-issue sidewalk curb ramp and thereby created a dangerous condition[7], upon review of all the trial evidence and upon listening to the witnesses testify and observing their demeanor as they did so, the Court concludes that such negligence was not a proximate cause of the accident. The record evidence establishes that the area where Claimant stepped was obscured by an accumulation of six to eight inches of snow[8] and Claimant was not sure where she was stepping. Claimant's accident occurred in the pre-dawn hours while it was still snowing. After careful review of the Claimant's testimony, the Court finds that she was unable to actually identify what caused her to fall (Barnes v DiBenedetto, __ AD2d __, 741 NYS2d 607, see also, Boyce Motor Lines v State of New York, 280 App Div 693, 696, affd 306 NY 801[general legal principle that where there are several reasonably possible explanations for an accident and one is consistent with Defendant's freedom from negligence, claimant will be deemed to have not met her burden of establishing State culpability]). The following exchange illustrates the Court's finding:
Q: Did there come a time when you placed one of your feet up onto the area where you believed the handicap ramp to be as you walked in a westerly direction?
A: Yes.

* * *
Q: Did your left foot come in contact with some area of that sidewalk?
A: Yes.[9]

* * *
Q: As you placed your left foot onto that area was it in the street, on the curb or on the sidewalk?
A: It was like hitting on the curb.. the.. handicap
Q: When you placed your left foot down where was it?

A: It was like I hit something hard.

* * *
Q: Did you feel any ice underneath the snow?

A: Yes.
Q: When you placed your foot down you said you felt something hard?

A: Yes, and then I turned my ankle.

* * *
Q: When you did that was your foot at an angle, was it straight, describe that.
A: It was on an angle.

Claimant's testimony, elicited through the foregoing leading questions without objection, was consistent with her drawing on Exhibit 4. That is, Claimant stepped somewhere on either side of, or on the curb itself and nowhere near the measurements taken by her expert.[10]

Based on the foregoing, the Court finds that Claimant has not proved by a fair preponderance of the credible evidence the State's negligence in the construction of the sidewalk curb ramp or that some feature thereof was a proximate cause of the accident. The Claim is dismissed and the Chief Clerk is directed to enter judgment accordingly. Any motions on which the Court previously reserved decision or which were not previously decided are denied.

September 30, 2002
Albany, New York

Judge of the Court of Claims

[1] The sidewalk/handicap ramp was referred to by the witnesses by various names, for consistency and readability the Court will use the phrase "sidewalk curb ramp" (see, 17 NYCRR Part 170 [Part 170 was repealed in 1996, subsequent to the construction at-issue in this claim]).
[2] Unless otherwise indicated, all quotations are from the Court's trial notes or the audiotapes of the proceedings.
[3] The regulations are written in ratio format while Claimant's expert calculated the slope in degrees. The parties do not dispute that a slope of 1 on 8 is equal to a slope of 7.1 degrees. The numerator represents elevation and the denominator represents lateral movement, e.g., in a 1 on 8 or 1/8 situation for every eight feet traveled laterally, the ground would slope, either upward or downward, one foot. Thus, the lower the denominator, the greater, or more severe, the slope.
[4] These two distance measurements excluded the width of the curb.
[5] The Court rejects this analysis as it clearly misapprehended the measurements taken of the side splay - the degree of slope was not measured front to back as Savik has extrapolated but rather from side to side. Claimant's forward slope for the side splay, 9 degrees, was not extrapolated by Savik.
[6] The parties stipulated that the State was not the owner of the at-issue ramp but had constructed the ramp pursuant to a contract for a federally funded, City of Long Beach project(see also, Rogers v State of New York, Claim No. 97610; Motion No. M-61881; Memorandum Decision and Order, Silverman, J., October 25, 2000[unpublished]).
[7] The at-issue regulations only require that work be done "in close conformity with the lines and grades shown" (17 NYCRR §170.3) and neither party has introduced the contract or as-built documents, nor was there any proof regarding subsequent alterations, if any (see, Arias v City of New York, 284 AD2d 354 [no evidence the defect arose when the walkway was constructed, or that the walkway, when constructed, did not comply with established engineering practices]).
[8] On cross-examination, claimant's expert acknowledged that the accumulation of snow was one of the causes he had established for this accident, a cause which under the circumstances would not create liability for any municipal defendant (see, e.g., Urena v New York City Transit Auth., 248 AD2d 377 [insufficient time to clear accumulation of snow]).
[9] Claimant drew a circle with a blue pencil on Exhibit 4 indicating where she stepped with her left foot. The circle included part of the gutter, curb and left side splay.
[10] Claimant's expert made his closest measurement of the splay twelve inches from the inside (sidewalk) edge of the curb.