New York State Court of Claims

New York State Court of Claims

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.

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):

Claimant's attorney:
Buckley, Mendleson and Criscione, P.C.By: John J. Criscione, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 17, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

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 of liability.

The facts surrounding the incident in which the claimant[1]
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 (Exhibits A-E).

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 feet:
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 through. [sic]
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 York, 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 York, 286 AD2d 528; Meyers v Fifth Ave. Bldg. Assoc., 90 AD2d 824).
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 dismissed.

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 doorway.

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[2]). 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 Sanitation, 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 583:
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 the 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 Ry. Co., 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 doors.

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 unloading stuff."

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 claimant.
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 practicable.

All motions not previously decided are deemed denied.

March 17, 2003
Saratoga Springs, New York

Judge of the Court of Claims

[1]Pamela Stasack's claim is derivative in nature. Therefore, all references to claimant will be to Peter P. Stasack, Jr.