New York State Court of Claims

New York State Court of Claims

MARTINEZ v. CITY UNIVERSITY OF NEW YORK, #2003-014-502, Claim No. 98239


Defendant found liable, based upon res ipsa loquitur, for injury sustained by claimant struck by a window.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

S. Michael Nadel
Claimant's attorney:
Roura & MelamedBy Johanna C. Abreu
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy Michael Rizzo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 27, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)

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 Restaurant, Inc., 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 condition.
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 condition
. 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 Authority, 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)."
Id., 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


June 27, 2003
New York, New York

Judge of the Court of Claims