On the morning of May 21, 1997, the claimant, a student at Brooklyn College,
was attending class in room 5307 of James Hall. He was seated in an aisle seat
closest to the exterior windows which were located directly to his left. The
windows open inward to the classroom by pivoting on their vertical axis.
Approximately three minutes before the class was scheduled to end, the claimant
raised his hand to answer a question posed by the professor when he heard a
"swoosh" sound which was immediately followed by the back of his head being
struck by an object causing him to fall forward onto his desk. He testified
that he looked around the area and observed the window adjacent to his seat
"swinging in the wind."
He stated that prior to this incident he had not observed the window which
struck him swing open on its own, but had noticed on two or three occasions
other windows in the building open on their own. He added that on the earlier
occasions these windows only opened one to one and one-half feet because there
was a metal flap in place that acted as a safety catch which prevented them from
opening farther. According to the claimant there was no metal flap in place to
prevent the window which struck him from swinging completely open.
John Barra, Administrative Superintendent at the College, was called as a
witness by the claimant. He testified that carpenters in his maintenance group
would tend to the windows if they were in need of repair. Carpentry work would
result only if a window were broken or otherwise malfunctioning, and the windows
are not routinely inspected. He stated that there is no preventive maintenance
involved with the more than 800 windows in James Hall, and that prior to May 21,
1997, he had not received a complaint of a window blowing open. He had searched
the incident and maintenance reports for the year preceding the incident and was
unable to discover anything concerning the windows at James Hall.
According to Mr. Barra the windows were always locked shut because the building
has central air-conditioning and central heating. The windows were locked by
two separate mechanisms, one at the top and the other on the bottom of the
frame. When the windows were locked they could not be opened by simply pulling
on them. A specialized key was needed to lock and unlock the windows, although
he said a screwdriver could be used. Mr. Barra testified that this type of
window does not open on its own, and if he had received a report that someone
had opened one he would have had a member of his staff lock it closed. He
stated that the windows were cleaned on a monthly basis by the custodial staff
and if a window had been found unlocked it would have been reported and then
locked by the custodial staff supervisor.
Mr. Barra testified that when one of these windows is open a metal arm on the
bottom of the window prevents it from opening beyond a certain point. He
examined two photographs, claimant's Exhibits 1 and 2 in evidence, which depict
the open window that struck the claimant, and he stated that the metal arm on
the window had been disengaged. According to Mr. Barra, the metal arm would not
have just fallen off or come apart from the window, but it would have to have
been removed manually. He added that when a window is in the closed position
one would neither be able to discern whether the window was actually locked nor
if its metal safety arm was properly engaged.
In Ryan Lavender's deposition testimony, which was received in evidence as
claimant's Exhibit 5, he testified that at the time of the incident he was a
volunteer in the Brooklyn College Emergency Medical Squad. He had graduated
from the college earlier in the year. As a student he had taken approximately
30 classes in James Hall and he stated that all the classrooms had windows. He
testified that on one or two prior occasions he had observed a window blow open
two or three feet into the classroom as a result of a strong gust of wind,
however he had not seen one swing all the way open. He stated that he had never
tried to open a window but observed other students attempt to do so, but not
succeed because the windows were locked.
As a landowner, the defendant " ‘must act as a reasonable man in
maintaining his property in a reasonably safe condition in view of all the
circumstances, including the likelihood of injury to others, the seriousness of
the injury, and the burden of avoiding the risk'."
Basso v Miller
, 40 NY2d 233, 241, quoting Smith v Arbaugh's
., 469 F2d 97, 100. Before there can be liability there
must be proof of a dangerous condition which was a proximate cause of the
injury, and that the defendant had either created or had notice of the
The claimant has failed to prove that the defendant either created the
dangerous condition or that it had actual or constructive notice of a dangerous
. In the absence of such proof, the claimant relies upon the doctrine of res
ipsa loquitur. "In New York it is the general rule that submission of the case
on the theory of res ipsa loquitur is warranted only when the plaintiff can
establish the following elements: ‘ "(1) the event must be of a kind which
ordinarily does not occur in the absence of someone's negligence; (2) it must be
caused by an agency or instrumentality within the exclusive control of the
defendant; (3) it must not have been due to any voluntary action or contribution
on the part of the plaintiff" ' [citation and footnote omitted]. Only when
these essential elements have been established, after the plaintiff has first
demonstrated the nature of the instrumentality which caused the injury and its
connection with the defendant [citation omitted], does a prima facie case of
negligence exist [citations omitted]." Dermatossian v New York City Transit
, 67 NY2d 219, 226-227.
It is apparent that it was intended by the defendant that the windows in James
Hall remain closed and locked, and that even if opened they were designed to
open no more than a foot or two. According to the building's Administrative
Superintendent, a special key was used to unlock each of two locks, and the
safety bar could only have been removed manually. A window with both locks
unlocked and the safety bar removed was a dangerous condition. The existence of
the condition, requiring three separate acts, would not ordinarily occur in the
absence of negligence.
While others may have had access to the window, the evidence in the record
establishes that the window was in the exclusive control of the defendant, who
was responsible for its maintenance. The purpose of the exclusive control
requirement is "to eliminate within reason all explanations for the injury other
than the defendant's negligence [citations omitted]. The requirement does not
mean that ‘the possibility of other causes must be altogether eliminated,
but only that their likelihood must be so reduced that the greater probability
lies at defendant's door.' (2 Harper and James, Torts §19.7, at 1086)."
., at 227. It would be sheer speculation to conclude that the
condition might have been created by other persons, such as students, at the
College, since the only evidence in that regard was that students had attempted,
on occasion, to open the windows but were not successful.
In accordance with the foregoing, the Court finds the defendant liable. The
issue of damages will be set down for trial upon the filing of a note of issue
and certificate of readiness pursuant to Rule 206.12 of the Uniform Rules for
the Court of Claims.
All motions on which the Court may have reserved decision or which were not
previously determined are denied
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.