Artpark, located in Lewiston, New York, is an outdoor performance center owned
and operated by Defendant. On August 29, 1995, at approximately 7:00 p.m.,
while attending a concert at Artpark, Claimant tripped and fell on the sidewalk
leading from the parking lot into the concert area. Claimant alleges that, as a
result of the accident, she sustained serious injuries to her right arm,
including a torn right rotator cuff and a torn right biceps. Claimant further
alleges that the sidewalk upon which she fell was uneven and dangerous and that
the State of New York negligently installed and/or maintained the walking
surface in the area of the fall. The Hon. John P. Lane granted Claimant's
request to file a late claim on October 29, 1998. This matter was bifurcated
and I conducted the liability portion of the trial on January 17, 2002 and
thereafter took post-trial briefs from counsel.
Claimant, who is approximately 78 years old, did not testify at trial.
Instead, Claimant's attorney offered her deposition transcript pursuant to CPLR
§3117(a)(3)(iii), which permits the use of a party's transcript when "the
witness is unable to attend or testify because of age, sickness, infirmity...".
Claimant's daughter, Nancy Fuentes, testified that her mother moved in with her
in August 2001 because "She can't take care of herself any longer. She gets
very confused, easily" (Tr. 3-4). It is undisputed that Claimant left Ms.
Fuentes' home on December 23, 2001 to travel to Arkansas to visit with Ms.
Fuente's sister, and that she would remain in Arkansas until February 9, 2002
(Tr. 4). Claimant's counsel offered a letter from Dr. Nancy J. Peters to
confirm that Claimant was under her care for treatment of Dementia at the time
of trial (Exhibit 11). It also appears that Dr. Peters was treating Claimant on
October 26, 2000, the date of Claimant's deposition (Exhibit 3, p. 24). As
such, I determined that counsel had provided adequate foundation to establish
that his client was unable to attend the trial because of age, sickness and
Cutler v Konover
, 81 AD2d 571, affd 55 NY2d 891). However, I relied on
Claimant's deposition only for the fact that Claimant stumbled on a brick, fell,
and injured herself while walking on a sidewalk with her daughter and
granddaughter on her way to attend an evening ballet performance at Artpark.
The remaining details of what occurred were supplied by Claimant's witnesses at
August 29, 1995, was a dry and sunny day (Tr. 7). Claimant, her daughter, and
granddaughter arrived at the Artpark parking lot at approximately 7:00 p.m and
walked towards the entrance, three abreast, with Claimant in the middle (Tr.
6). Claimant was wearing "flat velcro sandals" and carrying a lawn chair
(Exhibits 2 & 3). The entranceway to Artpark consists of alternating bands
of rectangular paver bricks and slabs of concrete (Tr. 134). The entranceway is
widest at the parking lot and narrows as it gets closer to the buildings
(Exhibit 8). Ms. Fuentes testified that Claimant tripped on an "indentation" in
the cement adjacent to a band of paver bricks (Tr. 23). However, it was not
until after her mother fell and they were waiting for the ambulance that Ms.
Fuentes actually noticed the "indentation" (Tr. 27). She observed that the
cement was approximately one-half inch lower than the brick after another woman
tripped in the same location as Claimant (Tr. 27).
The exact location of the trip and fall was disputed by the State at trial.
However, I find Ms. Fuentes' testimony credible and accurate. She certainly had
sufficient time to observe the surrounding area while she sat and waited for the
ambulance and the Artpark employees to respond. State's witness Vincenetta
Speck, a Park Ranger, responded to the scene of the accident (Tr. 58). She
prepared an accident report soon after arriving at the scene and noted that the
location of the accident was on the main walkway from parking lot D and between
the first and second light posts on the second cement slab (Exhibit 1). At
trial, she counted the flower boxes depicted in Claimant's Exhibit 8 to locate
the specific area of the fall, but it was very clear at the conclusion of her
testimony that not all the light posts and flower boxes were depicted in any of
the pictures in evidence. This made it difficult for me to credit her account
and discount Ms. Fuentes' testimony regarding the accident location (Tr. 65, 85,
Defendant also called officer Lisa Marone of the Niagara Falls City Police
Department. Officer Marone was dispatched by radio and met Ranger Speck at the
scene sometime between 7:30 and 8:00 p.m. Officer Marone testified that the
area near where Claimant fell was dry and level, with no loose stones or bricks
that she could detect (Tr. 96-98). She further testified that claimant was
elderly, obese, and had been carrying a lawn chair (Tr. 103). Importantly,
Officer Marone spoke with Claimant at the hospital, not at the accident scene.
Therefore, her information concerning the exact location of Claimant's fall came
from Ranger Speck and not from Claimant. Though both Ranger Speck and Officer
Marone were at the scene, and I do credit their testimony regarding the
characteristics of the walkway in the general area, I find no reason to discount
Ms. Fuentes' testimony as to the exact location of the alleged defect.
Claimant identified the area in which she fell as having approximately a one
half inch indentation (Tr. 27). Officer Marone could not say exactly where
Claimant fell but agreed that, at least at one location, there was an
approximate one half inch height differential between the cement slab and the
brick strip on either side (Tr. 97). It is clear to me that Claimant tripped on
an indentation in the walkway entrance to Artpark. However, the mere existence
of this indentation does not impose liability on the State of New York for
Claimant's injuries. The State is not an insurer of the safety of its premises
and negligence cannot be inferred solely from the happening of an accident (see,
Killeen v State of New York
, 66 NY2d 850, 851; Condon v State of New
, 193 AD2d 874). "The State - just as any other party - is
responsible, in the operation and management of its schools, hospitals and other
institutions, only for hazards reasonably to be foreseen, only for risks
reasonably to be perceived" (Flaherty v State of New York
, 296 NY 342,
346 [citations omitted]). With respect to the safety of persons on its
property, the State's duty is one of reasonable care under the circumstances
(see, Miller v State of New York
, 62 NY2d 506, 513; Preston v State of
, 59 NY2d 997, 998; Basso v Miller
, 40 NY2d 233,
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
Gordon v American Museum of Natural History
, 67 NY2d 836; Ligon v
, 234 AD2d 347; Mercer v City of New York
, 223 AD2d
688, affd. 88 NY2d 955).
I find that Claimant has failed to demonstrate that a dangerous or defective
condition existed at Artpark on the day of the incident. I find that this
alleged defect was trivial within the meaning of the "trivial defect" doctrine.
This doctrine provides that some defects in walkways are too small as a matter
of law to support a negligence claim, and therefore warrant an exception to the
general rule that questions of defect or danger are for the jury to decide
(Trincere v County of Suffolk
, 90 NY2d 976; see also, Liebl v
Metropolitan Jockey Club
, 10 AD2d 1006 ["The owner of a public passage way
may not be cast in damages for negligent maintenance by reason of trivial
defects on a walkway, not constituting a trap or nuisance, as a consequence of
which a pedestrian might merely stumble, stub his toes, or trip over a raised
projection"]; deAngeli, ‘Trivial Defects' Loom Large in Sidewalk Fall
, NYLJ, Nov. 27, 2000, at 1, col. 2).
Claimant correctly cites
McKenzie v Crossroads Arena
(291 AD2d 860) for the proposition that a
court should not find an alleged defect trivial as a matter of law, based solely
upon the dimensions of the alleged defect. Instead, all of the underlying facts
and circumstances of each particular case should be taken into consideration.
There are several factors that I considered in addition to the estimated one
half inch height difference between the bricks and the stone slab. The weather
on that day was dry and clear. The alleged defect was open and obvious.
Claimant was 71 years old, walking in "open toed sandals" and carrying a lawn
chair at the time of her fall. Additionally, the photographs depicting the
walkway and testimony concerning the care and inspection of the walkway all lead
me to the conclusion that the estimated one half inch indentation alleged in
this matter is trivial and therefore non-actionable (see Musso v State of New
, Ct Cl, March 20, 2002 [Claim No. 101515 - MacLaw No. 2002-005-528],
Alternatively, as the trier of fact, I find that Claimant has failed to
demonstrate the existence of a dangerous or defective condition by a fair
preponderance of the credible evidence. Both findings are based on my analysis
and weighing of the evidence. Indeed, I believe that the confusion and
substantial time at trial dedicated to determining exactly where Claimant fell
was due in part to the fact that the alleged defect was so small that it was
difficult to determine where Claimant fell, even on the day of the accident.
The close-up photographs of the accident site (Exhibits 4 -9) demonstrate that,
though not perfectly smooth by nature, the brick and cement walkway is generally
smooth and level and does not present a tripping hazard.
Finally, even if a defect did exist, I find that Claimant has failed to
demonstrate notice of this defect to Defendant. The testimony showed that the
walkway was heavily trafficked and yet no other accidents are known to have
occurred - either at the specific location where Claimant fell or anywhere else
on that particular walkway. Nor was there proof that any requests were made for
repairs to the walkway in the vicinity of Claimant's accident. Ms. Fuente's
testimony that she saw someone trip in the same spot just after her mother fell
does not demonstrate notice of a defective condition to Defendant.
In fact, Claimant admits that Defendant had no actual notice of the alleged
defect, but alleges constructive notice saying "The Park knew the brick sections
heaved over time and had to be replaced." (Claimant's Brief p. 3). This
argument fails for two reasons. First, notice that the brick sections may heave
in a general sense does not constitute notice of brick heaving at this
particular spot. Second, Claimant presented no evidence that the alleged defect
was related to brick heaving. On the contrary, the testimony showed that any
defect that did exist was related to the height difference at the spot where the
stone slabs and paver bricks met. There was no evidence that this height
difference was the result of heaving. Moreover, the photographic exhibits
clearly show that the bricks in and around the area of Claimant's fall were not
heaving but were relatively smooth and level. There was simply no proof of
notice, either actual or constructive, of a defective condition to
Based on the foregoing, I now grant Defendant's motion, made at the close of
Claimant's proof and upon which I reserved my decision, to dismiss the claim for
failure to establish a prima facie case of negligence. The Chief Clerk is
directed to enter judgment accordingly. Any other motions on which I previously
reserved judgment or which were not previously decided are denied.