New York State Court of Claims

New York State Court of Claims

TROMP v. THE STATE OF NEW YORK, #2003-005-002, Claim No. 102177


Synopsis



Case Information

UID:
2003-005-002
Claimant(s):
FREDERICK TROMP AND BARBARA TROMP The caption has been amended to show the correct spelling of Claimant's first name. The claim of Barbara Tromp was derivative in nature. The Court was advised that Barbara Tromp passed away on January 3, 2001, after the filing of this claim. Since this was a bifurcated trial addressing liability only, no proof was offered on her cause of action.
Claimant short name:
TROMP
Footnote (claimant name) :
The caption has been amended to show the correct spelling of Claimant's first name. The claim of Barbara Tromp was derivative in nature. The Court was advised that Barbara Tromp passed away on January 3, 2001, after the filing of this claim. Since this was a bifurcated trial addressing liability only, no proof was offered on her cause of action.
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102177
Motion number(s):

Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Buckley, Mendleson & Criscione, P.C.By: John J. Criscione, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Saul Aronson, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 5, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This claim was filed on March 27, 2000, and alleges the Defendant's negligence related to personal injuries sustained by Claimant Frederick Tromp on January 14, 2000, at the Washington Avenue entrance of the New York State Capitol in Albany. The trial of this claim was bifurcated, and this decision deals only with the issues of liability.

Claimant Frederick Tromp[1]
is visually handicapped with the complete loss of vision in his left eye, with the vision in his right eye, in his own words, being "pretty good." He operates a newsstand in the Justice Building at the Empire State Plaza in Albany, New York. He suffered personal injury when he slipped and fell on property owned by the State of New York.
On Friday morning January 14, 2000, he boarded his usual CDTA (presumably the Capitol District Transportation Authority) bus in Latham, New York, for his ride to the Washington Avenue bus stop on the north side of the Capitol, arriving between 7:20 a.m. and 7:30 a.m. January 14 was a cold and cloudy day as Claimant departed from his bus and walked to the northwest entrance to the portico of the Capitol. It appears that this mode of travel and access into the Capitol were part of Claimant's traditional routine to get to work. He was wearing sneakers on his feet despite the weather conditions.

This portico is one of two main public entrances to the Capitol and is a covered entranceway with numerous open access points.[2]
The public hours of the Capitol were 6:30 a.m. to 9:00 p.m. Snow could accumulate and ice could exist within the portico and a barrel of salt was kept in a corner during the winter months.
Claimant entered the portico, and as he stepped down to the platform with his left foot, he then slipped, falling forward and landing on his left side. He did not see what caused his foot to slip. A non-party witness, who was a passenger on the same CDTA bus that Claimant had utilized, testified that he heard a commotion within the portico and went to the scene to assist Claimant. While at the scene he observed a patch of ice on the floor of the platform in the area where Claimant had landed which was some distance (10 to 20 feet away) from the entrance Claimant had used.

Defendant's witnesses testified that after the fall they examined the floor of the portico and could not locate any ice or areas that were covered with ice. However, one witness for the Defendant found water on the stair and the platform, but no ice.

Evidence at trial reflected that on January 13, 2000, there was a snowstorm in Albany with the temperature dropping into the low single digits during the late evening and continuing into the morning hours of January 14. During the winter, the Defendant's maintenance employees at the Capitol were assigned to report for work at staggered times and punch in at 7:00 a.m., 7:30 a.m. and 8:00 a.m., with the first duty of each to inspect the portico platforms. On January 14, 2000, the date of this accident, the employee assigned to report at 7:00 a.m. was late, and did not punch in until 7:30 a.m. Thus, the portico floor was not inspected until after this accident.

Liability is predicated on the theory that when a defendant is on actual or constructive notice of a dangerous condition, and fails to ameliorate, correct or warn of such dangerous condition within a reasonable period of time after such notice is established, and said dangerous condition was a proximate cause of an injury, the defendant will be answerable in damages. Thus, Claimant theorizes here that the Defendant was on notice of a dangerous condition at the portico entrance to the Capitol, that he slipped on some ice, causing him personal injury.

This theory of liability is untenable, as the proof was fatally deficient in that Claimant could not establish a requisite element, to wit, the existence of a dangerous condition. While I credit the testimony of the non-party witness concerning the existence of ice at the area of the portico where he found Claimant after his fall, I am unable to find that the ice existed at the location of the slip and fall at the actual entranceway used by Claimant. The credible testimony established that Claimant fell as he descended from the platform down the one step to the main floor of the portico, and that his left foot slipped as it reached the main floor. The non-party witness observed a patch of ice that he estimated was some 10 to 20 feet away from the area where Claimant testified that he fell. Accordingly, that patch of ice could not have been one on which Claimant purportedly slipped. There was no other evidence presented to me regarding the existence of ice at the location where Claimant actually slipped. That being the case, the proof fails to establish that a dangerous condition existed which caused Claimant to slip. I choose not to speculate whether Claimant's footwear, or his purported preexisting limp, or some other consideration contributed to the fall. Suffice it to say, the absence of credible proof of the existence of a dangerous condition precludes a finding of liability on this theory.

Claimant also proffered a theory that the State assumed a duty to inspect the premises where the accident took place because of the inspection schedule for its employees, and the existence of a barrel of salt in the vicinity. Claimant's theory in this regard is that the failure to have inspected the portico area at 7:00 a.m. that morning breached this presumed duty to inspect, and was a proximate cause of Claimant's injury. This theory too must fail, as Claimant has failed to establish the existence of such duty. Leaving aside other questions and incongruities that come to mind because the doors opened at 6:30 a.m. every morning, but the first employee who was to inspect the premises was not assigned to begin work until 7:00 a.m. there can be no duty to inspect for a presumed dangerous condition in the absence of a history of prior accidents at the location in question.

The State cannot be presumed to have assumed a duty without some basis therefor, and here the record before me is totally devoid of any evidence of any accident history, and thus no evidence of a known dangerous condition. Given the thoroughness of Claimant's proof, he would have presented evidence of such accident history if the same existed, and I decline to speculate that the mere existence of a morning inspection schedule at 7:00 a.m., 7:30 a.m. and 8:00 a.m., or a barrel of salt nearby, could possibly suffice to infer the assumption of a duty. So while the Defendant established a standard schedule of inspections as noted above, there was no duty to have done so, and the "violation" of the standard to inspect at 7:00 a.m. cannot be elevated to a breach of a duty.

As a landowner, the State has a duty to maintain its premises and facilities in a reasonably safe condition (
Preston v State of New York, 59 NY2d 997; Basso v Miller, 40 NY2d 233; McMullen v State of New York, 199 AD2d 603, lv denied 83 NY2d 753). The State is not, however, an insurer of the safety of all persons who use its premises and facilities (McMullen v State of New York, supra; Tripoli v State of New York, 72 AD2d 823), and the mere fact that an accident occurs in a State-owned facility does not ipso facto cast the State in liability (Preston v State of New York, supra). The burden rests with the Claimant to prove (1) that a hazardous condition existed; (2) that the State had actual knowledge or constructive notice of the hazardous condition but failed to remedy it; and (3) that the hazardous condition was the proximate cause of the Claimant's injury (see, Gordon v American Museum of Natural History, 67 NY2d 836; Lewis v Metropolitan Transp. Auth., 99 AD2d 246, affd 64 NY2d 670). As concluded above, the Claimant has been unable to sustain his burden of proving the Defendant's culpable conduct.
Accordingly, the claim must be, and hereby is , dismissed. All motions not heretofore ruled upon are now denied. Let judgment be entered accordingly.


June 5, 2003
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims




[1] For ease of reference, the term Claimant shall mean Frederick Tromp only.
[2]See Exhibit 6.