New York State Court of Claims

New York State Court of Claims

FRANCIS v. THE STATE OF NEW YORK, #2003-016-023 , Claim No. 101359


Synopsis


Slip and fall claim was dismissed as claimant failed to prove by a preponderance of the evidence that he fell on defective step as claimed.

Case Information

UID:
2003-016-023
Claimant(s):
FRANCINE FRANCIS, Mother and Natural Guardian of infant, FERRAUD FRANCIS and FRANCINE FRANCIS, Individually
Claimant short name:
FRANCIS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101359
Motion number(s):

Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Tracie Sundack & Associates, L.L.C.
By: Tracie A. Sundack, Esq. and Jeffrey Pollack, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Albert Masry, AAG
Third-party defendant's attorney:

Signature date:
March 24, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


This is the decision following the trial on liability of the claim of Ferraud Francis, which alleges that he fell on a defective step of an outdoor concrete staircase at the Roberto Clemente State Park, which is located in the Bronx. The accident occurred on September 23, 1999, when Ferraud Francis was 14 years of age. Ferraud's action was brought on his behalf by his mother, Francine Francis, who also maintains an individual action. For ease of reference, the terms "claimant" and "Francis" will mean Ferraud Francis.

At trial, the evidence consisted of testimony by claimant, his mother and Karen Pedrosa, an employee of the park whose job title was recreation specialist. The exhibits included a Patron Accident Report (cl exh 9), seven photographs (cl exh 1, 3-8), and the May 11, 2001 deposition of claimant (def exh A). Portions of the deposition of Francine Francis were read into evidence.

The photos were taken by Mrs. Francis who went to the accident site a couple of days later with Ferraud. They show a step so badly eaten away or crumbled (cl exhs 4- 7) that the metal imbedded in the concrete is exposed (cl exh 3). With that said however, before determining whether the defendant had notice of this condition, a more fundamental issue must be addressed: did claimant fall on this broken step?

The Patron Accident Report (cl exh 9) makes no mention of a defective step. The language of the Report may be, as claimant contends, ambiguous as to whether Mr. Francis was walking up or down the stairs when he fell. In any event however, according to Karen Pedrosa, who filled out the report after speaking with the claimant (whom she knew, having previously coached him in basketball at Roberto Clemente), Francis fell while going down the steps. In his deposition, claimant initially said he fell while going down the stairs, then changed his version so that he was walking up the stairs and leaving the park, a narrative he stayed with at trial.

At trial, claimant's account of the incident itself was so sketchy it was as if he did not really wish to talk about it: "Q...Can you describe how you fell coming up the steps? A. I was walking up all the way to the end where the rail is, and I just fell. The next thing I know I was on the floor." A few minutes earlier he had said, "I got to the top row and I slipped." Claimant had more detail in his initial version at the deposition in which he explained that he was walking down the steps into the park and was going to meet his friends at the basketball courts below.

Claimant's presentation of the timing of his mishap and what led up to it is insufficiently credible. Mr. Francis had two stories as to whether he knew what time it was. At his deposition, claimant testified that "I looked at the time, I had a watch on..." (def exh A, p. 64; also p. 69). At trial, when asked when he arrived at the park, Francis responded, "I don't know. I didn't have a watch on."

Francis testified on the stand that his school let out at 3 p.m. and that it took from 5 to 7 minutes to get from school to the park, depending on whether he walked or took a bus. He said he took a minute to go down the stairs, spoke with his friends for 10 to 15 minutes and started back up the stairs when he fell at the fifth step from the top - - another minute. Thus, by adding up these components of activity, his fall occurred from 17 to 24 minutes after school, or from 3:17 to 3:24 p.m.[1] Yet a moment before, claimant asserted an inconsistent and overly broad view of the time of his alleged accident as between 3:30 and 4:30 p.m. Moreover, Karen Pedrosa entered the time of the incident as 5 p.m. in the Patron Accident Report, about which Pedrosa was not challenged by defendant (cl exh 9).[2]

In addition, claimant was somewhat unclear as to who, if anyone, might have seen what happened to him. What was involved was a long set of stairs with three landings and wide enough to have two interior railings (cl exh 8), an outdoor staircase in a public park, on a clear September afternoon warm enough that "I didn't have on a jacket"(def exh A, p 36). At one point, on cross-examination, Francis said there were no people on the steps when he was ascending them, "but they were nearby." But he also testified that when entering the park by walking down these same steps there were "[a] lot" of individuals in the area. In his deposition, claimant had stated:
When I got up, after a couple of little kids helped me up, they are not little but they are younger than I am, they [saw] I fell and ran over and helped me up and everything...there [were] so [many] of them. Id., def exh A, pp. 72 & 76.

There were any number of other aspects to Mr. Francis' deposition and trial testimony that undermined his credibility. In his deposition, he said he went to the park so often that he had probably been there the day before (Id., p. 43), yet he denied ever seeing this large defect, which is visible from a distance (see, e.g., cl exh 7), and he was evasive as to how often he had used the entrance that leads to these stairs (cl exh 1).

Over the course of the deposition and trial, Francis wavered as to whether he could remember the names of his friends who were at the park or who he expected to meet there. He mentioned in his earlier sworn testimony "Mike, Steven, David, Kareem, Lamont" as friends he had played basketball with at Roberto Clemente, then went on to say that there were "plenty more but I am not going to name all of them, you want me to name all 2000 of them" (def exh A, pp 43-44). Two thousand may be an exaggeration, but his response reflects claimant's active involvement in basketball programs at Roberto Clemente and elsewhere. It seems surprising then for claimant to maintain that when he went that day he was looking for friends who would be playing basketball on the courts near the bottom of the steps, but did not play, only staying a short time to talk: "I didn't play...basketball though... Q. Why not? A. I wouldn't remember" (Id., p.64).

At the trial, claimant demonstrated on the step to the witness box how he had placed his foot on the broken step at the park. He testified that at the park, he had been able to place his entire foot on the step in question. But the step had a large portion broken off at its edge; this is not, for example, a case involving a step that was slippery because it was wet. It does not appear that he could have gotten his whole foot on the part of the step he marked with a red "X" in claimant's photograph (cl exh 5) - - the photo shows his right foot extending over the edge.

The deposition was, of course, more than a year closer to the incident than the trial. Nonetheless, in his earlier testimony, Francis very precisely remembered what he was wearing; at trial he only recalled that he was wearing sneakers, which he thought were made by New Balance. Similarly, at the deposition, he recalled taking the number 40 bus that September afternoon; at trial, he said he could not remember if he walked or rode.
***
Ferraud Francis' date of birth is July 14, 1985; he was 17 years of age at trial and two months short of age 16 at his deposition on May 11, 2001 (def exh A). [3] In his deposition and his testimony at trial, Mr. Francis comes across as a highly intelligent individual who not only understood the questions as asked, but grasped their larger implications. He was in no way intimidated by the litigation process; if anything he flashed on many occasions a sharp, and sometimes witty, tongue. Claimant was aware of when the questioning became repetitive and was not reluctant to point same out to his questioner. To this trier of fact, the weaknesses in claimant's testimony do not stem from his youth. They arise from his numerous inconsistencies, which when viewed as whole, together with his defensive demeanor, do not make it more likely than not that he fell on the broken step in question.

The burden of proof rests on claimant, who must establish by the fair preponderance of the credible evidence that the claim he makes is true. The evidence favoring Francis' claim must outweigh the evidence opposed to it; if the two sides' cases are equally balanced, then defendant prevails. (PJI 1:23).
***
In view of the foregoing claimant has failed to meet his burden at the threshold of proving that he fell because of the subject broken step and therefore, claim no.101359 is dismissed. Any prior motion that has not been ruled upon is hereby denied.




LET JUDGMENT BE ENTERED ACCORDINGLY.

March 24, 2003
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1] It would be earlier if we used claimant's deposition testimony that he only spoke to his friends at the basketball court (s) for "two or three minutes...maybe five minutes the most..." (def exh A, pp. 69-70).

[2] Mrs. Francis testified as follows: "Minutes to four, I received a call from a patrolman..I've since forgotten his name...[I took]a cab home...When I walked in the door, I got a call instructing me to come to Lincoln Hospital." Mrs. Francis remembered arriving at the hospital "[b]efore five."

[3] In fact, at trial on the record, Tr 10-11, prior to taking his oath, the Court pointed out that Ferraud was 17 years old; no objections were made to him testifying under oath like any other witness.