New York State Court of Claims

New York State Court of Claims

BARTOLOTTA v. THE STATE OF NEW YORK, #2002-031-502, Claim No. 99356


Claimant's negligence action relating to trip and fall on State property is dismissed for failure to demonstrate any defect of more than trivial significance and for lack of notice of any defect to Defendant.

Case Information

MARY BARTOLOTTA Caption amended sua sponte to show the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended sua sponte to show 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:
Defendant's attorney:
Attorney General of the State of New York
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 5, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

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 infirmity (see,
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 trial.
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, 89, 91).

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 York, 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 New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241).
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).
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 Cases, 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 York, Ct Cl, March 20, 2002 [Claim No. 101515 - MacLaw No. 2002-005-528], Corbett, J)[1].
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 Defendant.

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.

June 5, 2002
Rochester, New York

Judge of the Court of Claims

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