STASACK v. THE STATE OF NEW YORK, #2003-015-573, Claim No. 103609
Court apportioned liability 50/50 for claimant seeking to recover for injuries
received while claimant was struck by a door while painting on a dock of Empire
State Plaza loading area. State failed to properly sign area, claimant knew of
regular traffic in the area.
PETER P. STASACK, JR. and PAMELA STASACK
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Buckley, Mendleson and Criscione, P.C.By: John J. Criscione, Esquire
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
March 17, 2003
See also (multicaptioned
The trial of the above captioned matter was bifurcated by Order of the Court
dated August 14, 2002 and the decision herein therefore addresses only the issue
The facts surrounding the incident in which the
was allegedly injured are not substantially controverted. In October 2000
claimant was a journeyman painter employed by Breeyear Construction Company and
engaged as a per diem painter at various State owned buildings. On the morning
of October 5, 2000 Office of General Services (OGS) painting supervisor Richard
Conley assigned claimant and his work partner Danny Melton various painting
tasks to be performed near the building entrance on the P-1 loading dock area of
the Empire State Plaza. Part of the work assigned included the scraping and
painting of vertical steel crash barriers located on the loading dock side of a
set of double swinging doors, one on the left side of the doorway and one on the
right, which separated the loading dock from an interior hallway containing a
set of elevators. The barriers are composed of three pieces of steel or metal
pipe; a central vertical pipe approximately three feet in height and two angled
pipes which at the top are joined to the vertical segment and at the bottom are
secured to a metal plate. As a unit the vertical and angled steel pipe form a
triangular barrier protecting the outside corners of a short hallway or
vestibule approximately six feet in length which extends from the double doors
to the loading dock area. The entry doors are made of rubber and each contains
a square window. At the far end of the interior hallway is a second set of
double doors which form the entrance to laboratories operated by the Department
of Health. Claimant and his partner, Mr. Melton, had been working in the P-1
loading dock area for at least one month preceding the date of this accident
painting and re-striping the loading dock walls.
After receiving their instructions from painting supervisor Conley, Messrs.
Stasack and Melton went to the area of the P-1 loading dock where the building
entrance was located and began their assigned tasks which included painting of
the crash barriers and the vestibule wall between the crash barriers and the
double doors. The crash barriers, vestibule area and double doors of the P-1
loading dock area are depicted in various photographs received in evidence
Both claimant and Mr. Melton testified that wet paint signs produced by OGS
were placed in and around the work area including signs which were affixed to
both sides (interior and exterior) of the double doors. Although they both
testified to having placed the wet paint signs on the double doors this
inconsistency is not crucial as the presence of signs at the work location on
the day of the accident was confirmed by OGS painting supervisor Conley.
According to the claimant he and Mr. Melton worked in the area of the P-1
loading dock entrance throughout the morning at which time, claimant testified,
he scraped the barriers and applied a first coat of paint. At approximately
2:00 p.m. claimant began to apply the final coat(s) of paint to the barriers.
He completed the barrier located to the right of the double doors in
approximately fifteen minutes and then moved to the barrier on the left.
Claimant testified that the angles formed by the steel components which combine
to form the barriers required him to move and adjust his body in order to assure
that all surfaces were painted. In so doing, he turned to face away from the
doorway and bent over at his waist in order to paint the lower portion of the
barrier. While so engaged he was struck from behind by a gondola pushed by
Maria Xythils, a cleaning person employed by OGS and assigned to the Health
Department laboratories. Ms. Xythils was transporting trash to the loading dock
using a wheeled receptacle referred to at trial as a gondola. She testified
that she was pushing the gondola from the rear as she approached the double
doors from the interior hallway and pushed the doors open using the front
portion of the gondola. As she continued through the doors she recalls a
gentleman saying "you hit me". Danny Melton testified as follows regarding the
incident, which he allegedly observed from a distance of approximately 20
Q. Can you describe – did you see the lady with the cart or gondola, did
you see her come through the door yourself, or did you just hear it? What
exactly do you recall?
A. I seen her come through. It's a swinging door. I seen when she came
Q. Can you describe the manner in which she came through, the speed or anything
of that –
A. She came through like she was in a rush to go somewhere.
Q. What do you mean by that?
A. Because like she pushed it, you know, to come out real fast.
Ms. Xythils testified that she had made five to six trips to the loading dock
with the gondola previously that day and did not see either workmen or wet paint
signs in the area where the accident occurred. She also testified that although
there were windows in the doors she could not see through the windows because
she was located behind the gondola as she pushed it through the double doors.
To obtain a clear view through the windows Ms. Xythils related she would have
had to have been in front of the gondola rather than behind it.
Mr. Stasack testified that he did not tape off one half of the doorway while
painting because that would have prevented gondolas or machinery from using the
doorway and, although not depicted in the photographic evidence received at
trial, a sign reading "do not block doorway" was located above the doors. Nor
did he use a paint can or doorstop to prop open the doors because he knew from
previous experience that such action was frowned upon by State fire inspectors.
Claimant also testified that cones were not used at the P-1 loading dock entry
doors because they were only used when working near vehicular traffic. Mr.
Stasack did not seek the assistance of Mr. Melton to act as a lookout.
Claimant testified that the doorway at issue herein was heavily used by State
employees and maintenance workers, persons making deliveries and construction
laborers transporting debris. He also testified that on prior occasions that
day he listened for the sound of persons approaching the doorway from the
interior hallway, in particular for the sound of oncoming gondolas, and would
move to allow those persons use of the doorway without incident. Mr. Stasack
did not hear the approach of Ms. Xythils' gondola.
The claim states various causes of action grounded in premises liability
including the failure to properly warn persons using the doorway of the presence
of workers and to properly inspect the premises and monitor the building
entrances, exits and stairways.
The State is subject to the same standard of care applicable to any landowner:
to maintain its premises in a reasonably safe condition under the circumstances
Basso v Miller
, 40 NY2d 233, 240-241; Clairmont v State of New
, 277 AD2d 767). The State is not, however, an insurer of the safety of
its premises (Boettcher, Matter of, v State of New York
, 256 AD2d 882)
and may be held liable only upon proof that a dangerous condition existed of
which the State had actual or constructive notice (Vachon v State of New
, 286 AD2d 528; Meyers v Fifth Ave. Bldg. Assoc.
, 90 AD2d
In this matter the claimant himself testified, as did Danny Melton, that signs
indicating the presence of wet paint were posted in the area of the P-1 loading
dock entrance including signs affixed to the interior and exterior of the double
doors. As claimant argues that the signs were adequate to apprise Ms. Xythils
of the presence of workers and the need to exercise caution he may not also
argue that they were inadequate for purposes of fulfilling a landowner's duty of
reasonable care. In any event, there was no evidence establishing a duty or the
breach thereof as pertains to the causes of action alleging failure to warn and
to properly inspect the premises. Nor was there any proof that the defendant
knew or should have known of the existence of a dangerous or unsafe condition
and failed to take reasonable and appropriate corrective action. The same is
true with regard to any other causes of action alleging liability against the
State in its role as landowner and, as a result, those claims are
The claimants' primary cause of action alleges Maria Xythils was negligent in
the manner in which she exited the doorway and that the State may be found
liable for the negligent act of its employee under the principle of respondeat
superior. In particular, claimant contends that in opening the door while
pushing the gondola from the rear Ms. Xythils placed herself in a position which
did not allow her to observe persons immediately outside or approaching the
The Court of Claims Act not only waives the State's immunity from traditional
common law liability (Court of Claims Act § 8) but specifically authorizes
the Court to hear and determine claims "for the torts of [State] officers or
employees while acting as such officers or employees" (Court of Claims Act
§ 9). It is by now well recognized that respondeat superior liability
may be imposed upon the State for the negligent acts of its employees committed
in the course of their employment (
State of New York v Popricki
, 89 AD2d 391). "Under the doctrine of
respondeat superior, an employer will be liable for the negligence of an
employee committed while the employee is acting in the scope of his employment"
(Sauter v New York Tribune
, 305 NY 442). "An employee acts in the scope
of his employment when he is doing something in furtherance of the duties he
owes to his employer and where the employer is, or could be, exercising some
control, directly or indirectly, over the employee's activities" (Lundberg v
State of New York
, 25 NY2d 467, 470).
The proof established that Ms. Xythils was employed by the State and that her
duties included the use of a gondola in cleaning State offices and transporting
any refuse to an assigned area on the P-1 loading dock. It seems clear, then,
that Ms. Xythils was acting in the course of her employment when, in carrying
out her duties as a maintenance worker, she exited the P-1 loading dock doorway.
What remains to be determined is whether her actions were negligent.
To establish a prima facie case of negligence a claimant must establish "(1) a
duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3)
an injury suffered by the plaintiff which was proximately caused by the breach"
Murray v New York City Hous. Auth.
, 269 AD2d 288; Kampff v Ulster
, 280 AD2d 797). There can be no recovery in a negligence action
unless it is demonstrated that an alleged tortfeasor owed a duty of reasonable
care to an injured party (Fay v Assignment Am.
, 245 AD2d 783). The Court
of Appeals described the analysis to be employed in determining the existence
and scope of a duty in DiPonzio v Riordan
, 89 NY2d 578, stating at page
The existence and scope of an alleged tortfeasor's duty is, in the first
instance, a legal question for determination by the court (see, Palka
v Servicemaster Mgt. Servs. Corp., supra, at 585). In analyzing
questions regarding the scope of an individual actor's duty, the courts look to
whether the relationship of the parties is such as to give rise to a duty of
care (see, e.g., Waters v New York City Hous. Auth., 69
NY2d 225; Pulka v Edelman, supra, at 783), whether the plaintiff
was within the zone of foreseeable harm (see, e.g., Palsgraf v
Long Is. R.R. Co., supra) and whether the accident was within the
reasonably foreseeable risks (see, e.g., Danielenko v Kinney
Rent A Car, 57 NY2d 198). The nature of the inquiry depends, of course, on
the particular facts and circumstances in which the duty question arises. The
analysis is also driven by considerations of public policy. As we stated in
Waters v New York City Hous. Auth. (supra, at 229), '[t]he common
law of torts is, at its foundation, a means of apportioning risks and allocating
the burden of loss.'
The specific question whether one opening a swinging door has a duty of
reasonable care inuring to persons approaching or located outside and in the
path of the door is, curiously, one not previously decided in this State. It
has, however, long been recognized that "carelessness in the use of any form of
door may inflict injury upon one who happens to be sufficiently near it" (
Pardington v Abraham
, 93 App Div 359, 361). In Pardington
Court found that the defendant store owner could not be liable to the plaintiff
where the doors were neither improper nor unsafe and it was shown that the
plaintiff was injured by the "hasty carelessness of a third person over whose
movements and conduct they had no control" (Id.
; see also
Mangel v Bronx Borough Bank
, 241 App Div 160). In Kiernan v Manhattan
, 28 Misc 516, the Court denied recovery to a plaintiff injured when
she was struck by a swinging door abruptly opened by a third party. The Court
recognized that any door may pose a risk of injury to one in close proximity to
it but determined that the plaintiff's redress was against the third party
rather than the landowner.
It seems clear to this Court that an individual exiting a doorway which
provides both ingress and egress is required to accomplish that task with due
regard for persons who may be approaching the same doorway from the opposite
direction or may be located immediately outside an outward swinging door.
The testimony at trial established that Maria Xythils had been employed as a
maintenance worker at the Health Department laboratories in the Empire State
Plaza for approximately three years preceding the date of claimant's accident.
During those three years she utilized the P-1 loading dock doorway five to six
times each day, including the day of the accident. The claimant and his
co-worker had been working in and around the loading dock side of the doorway
and the vestibule leading thereto the entire day and had been working on the P-1
loading dock, generally, for at least one month. Wet paint signs were posted in
the area, including signs affixed to the interior and exterior aspects of both
The testimony, including that of OGS painting supervisor Conley, further
established that the P-1 loading dock was heavily used by State employees,
maintenance workers, construction laborers and delivery persons. Ms. Xythils
had on other occasions encountered persons attempting to enter the doorway as
she was exiting. She testified in this regard as follows:
Q. Okay. On any occasion, had you ever gone through those doors with the
gondola when someone was walking in from the loading dock area?
A. Yeah, you're going to stop. If somebody walked in, you [sic] going
to stop because the doors only open – push out, so you're pushing this
side, somebody can walk in and you're going to stop, of course.
Despite the high volume of traffic utilizing the doorway and her own experience
in encountering persons attempting to enter as she exited through the outward
swinging door Ms. Xythils, by her own testimony, placed herself in a position
where she was unable to view persons outside or approaching the doorway.
Instead she opened the double doors by placing the front portion of the gondola
against the doors and pushing from the rear, a position which did not allow her
to utilize the window in either door to view the area outside. In exiting the
doorway in such a manner she failed to exercise reasonable care to prevent a
foreseeable risk of harm to others outside the doorway or seeking to use the
doorway to gain access to the building. Defendants are liable for all normal
and foreseeable consequences of their acts (
Gordon v Eastern Ry. Supply
, 82 NY2d 555). It is not necessary, however,
that the precise manner in which the accident occurred be foreseeable so long as
the harm suffered is "within the class of reasonably foreseeable hazards that
the duty exists to prevent" (Sanchez v State of New York
, 99 NY2d 247,
252). The Court finds that the proof at trial established that Ms. Xythils owed
the claimant a duty of reasonable care which she failed to fulfill. As a result
Ms. Xythils is found to have been negligent and liability attaches to the State
by application of the principle of respondeat superior.
The preceding conclusion does not, however, relieve the claimant of his
proportionate share of responsibility in the happening of the accident. Mr.
Stasack was equally aware that the doorway was heavily utilized and failed to
obtain Mr. Melton's assistance in acting as a lookout for persons attempting to
exit the doorway during the brief period required to apply a second coat of
paint to the metal barriers. His reliance upon the sound of approaching
gondolas to avoid contact with the opening doors is no more reasonable than was
Ms. Xythils' dependence on the same condition to apprise persons outside or
approaching the doorway of her presence. Mr. Stasack himself testified that the
loading dock was a busy and sometimes loud area and that it was not unusual to
hear "trucks backing up, you know, tractor trailers pulling in there and
Accordingly, the Court finds that claimant was negligent in that "[i]t was only
through claimant's negligence that [he] was placed in a position to be harmed by
the negligence of the State" (
Clark v State of New York
, 124 AD2d 879, 881). Under these
circumstances, the amount of any recovery to which the claimant may be entitled
must be reduced in the proportion which his negligent conduct bears to that of
the defendant (Stirpe v Maloney & Sons
, 252 AD2d 871). Accordingly,
the Court apportions liability 50% to the defendant and 50% to the
The Clerk is directed to enter an interlocutory judgment on the issue of
liability. A trial on the issue of damages will be scheduled as soon as
All motions not previously decided are deemed denied.
March 17, 2003
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
Pamela Stasack's claim is derivative in
nature. Therefore, all references to claimant will be to Peter P. Stasack,