New York State Court of Claims

New York State Court of Claims

CONKLIN v. THE STATE OF NEW YORK, #2003-028-001, Claim No. 104924


Case Information

ERIC W. CONKLIN The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
January 10, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

On October 17, 1999 at approximately 3:00 pm Claimant, a twenty year old student at the State University of New York at Albany, left his dormitory on the SUNY downtown campus for an intramural basketball game. Claimant testified that his car was parked in the Alumni Quad parking lot located behind Alden Hall. In order to reach his car, it was necessary for Claimant to descend an "L-shaped"[1]
exterior stairway located in Alumni Quad. Claimant stated that, empty-handed and wearing basketball shoes, he started down the top flight of the stairway[2] "and as he reached the first or second step", he hit something loose, lost his balance and fell to the ground, dislocating his left elbow. Claimant testified that he reached for a handrail, but none was present. Within two weeks of his accident, he returned to the stairway and observed "loose pieces of concrete and pebbles" which he alternately described as being "all over the place" and "on a couple of stairs but not all of them." On cross-examination, Claimant acknowledged that he had used the stairway as many as "12 times" before the accident and had never fallen. Claimant stated that he was "looking straight ahead" and not down as he reached the stairway.
Claimant's expert witness, Ernest J. Gailor, a professional engineer licensed in New York, conducted a 45-minute inspection of the accident site on May 20, 2002. Gailor testified that he reviewed "material given to him" and that on site, he took measurements of three treads and four risers comprising the first three steps as one descends the upper flight of stairs. Gailor testified that individual risers varied in height from one quarter inch (1/4") to three eighths of an inch (3/8") and that the variation riser to riser ranged from one half inch (½") to three quarters of an inch (3/4") which "did not conform to standards" as variations are "normally within one eighth of an inch (1/8"). The treads ranged from a uniform twelve inches (the first tread) to eleven and one half inches (the third tread) in depth. Gailor noted the second and third treads were wider, closer to the stairway's sidewalls. Gailor also observed the lack of handrails on the upper flight of stairs and testified that "based on standard engineering practice and based on standard construction design practice and a history in New York State and worldwide... and standards in place before 1984" the stairway where Claimant fell should have had a handrail. Gailor also testified that the patterns of discoloration on the stairs evident in Exhibit 7, a photograph of the subject stairway, which he confirmed on his site visit, were the result of a "cement based patch" which he opined was the wrong patch material to repair the stairway. Gailor stated that the patch "appears to be portland based" which is not appropriate for a floor and "most certainly not on a stair" because it tends to "fall apart" into its component parts of "portland, sand and stone" which would either remain on the stair or be swept away.

On cross-examination, Gailor acknowledged that he did not know where on the stair [center, right or left] Claimant had stepped when he lost his balance and fell. As for the "portland based" cement patch, Gailor stated he tested the loose material he observed by picking up a handful and looking at its "component parts." He stated that his opinion that the patch was improper was based upon "copious information."

Thomas G. Curtin, SUNY's Plant Utilities Engineer II for the downtown campus, testified on behalf of the Defendant[3]
. Curtin's duties placed him in charge of all maintenance activities on the downtown campus, which included the subject stairway. Curtin testified there was not a set maintenance schedule for the stairway, but that repairs would be made as needed. The repairs, of which there were no records, consisted of "flashing over" the spots where concrete had come loose. Flashing over required a mason to chip out loose material and patch the spot with concrete and feather the edges. Curtin testified, from a review of Exhibits 7 and 29, that other repairs to the stairway included caulking the joints or seams to prevent water seepage and replacing two of the capstones. Curtin estimated the repairs would last two to three years and then be done again. Curtin testified he was unaware of any accidents on the stairs prior to the date of Claimant's injury. On cross-examination, Curtin confirmed there were no written or oral policies for inspecting the stairway. Information on the stairway's condition would be obtained from reports of problems or when observed by Curtin or the maintenance staff. Curtin stated he used the stairway at least "once per week" and did not notice any accumulation of gravel or other material on the stairway.
Timothy P. Lanahan, a 16-year SUNY employee and a patrol officer for the past fourteen years, testified for the Defendant. Lanahan stated he was familiar with the subject stairway in that he was assigned to the downtown campus at least once a week as a patrol officer and his "assigned zone" would include Alumni Quad. He added that he would use the staircase a "couple times a shift" and over the course of his career this amounted to "several hundred times." Lanahan testified that on May 28, 1996, while on duty, he fell on the lower flight of the subject stairway and injured himself. Lanahan stated that as he stepped onto the landing at the bottom of the lower flight of stairs "there was loose gravel" which caused him to twist his knee. He filed an employee accident report (Exhibit 1). Lanahan denied obtaining any knowledge that the stairway was dangerous.

Defendant's expert witness, Raymond E. Webster, has been employed by the Defendant as an architect since 1978. As part of his duties, Webster testified, he reviews designs and drawings for "code compliance" before issuing building permits. Webster conducted a site inspection on June 13, 2002 at which time he measured the distance from Pierce Hall to the subject stairway to be 36 feet. Webster testified that this distance was significant because exterior stairways beyond twenty-five feet of an exit are not covered by the Building Code and hence no handrail was required on the subject stairway. Webster testified the State Building Code[4]
is concerned with building ingress and egress and pointed to the definitions of "exit" and "legal open space" set forth in the State Building Code (9 NYCRR § 606.3[63] and [123], respectively) to conclude this stairway was not part of an exit. Webster also noted that Pierce Hall's cornerstone is dated 1935 and that "all the stairways were built in the 1930's", and testified that there was no building code in effect at the time the subject stairway and surrounding buildings were constructed. On cross-examination Webster stated he found no evidence, such as holes in the brick work or mounting plates, to indicate a handrail was ever present on the upper flight of the subject stairway. He acknowledged he could not locate plans for the stairs and had no opinion as to why the subject stairway lacked a handrail.
A landowner is not the insurer of the safety of those coming onto the premises, but rather "must act as a reasonable [person] 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 (
Miller v State of New York, 62 NY2d 506, 513; see also, Basso v Miller, 40 NY2d 233). The Claimant bears "a very fundamental and necessary burden" to show a dangerous or defective condition because of which defendant should have foreseen the reasonable possibility of injury to users (Allen v Carr, 28 AD2d 155, 157, affd 22 NY2d 924), yet failed to remedy or warn in a timely fashion (Basso v Miller, supra). Creation of a dangerous condition constitutes actual notice (Lewis v Metropolitan Transportation Auth., 99 AD2d 246, 249 affd 64 NY2d 670). There is no duty to warn of an open and obvious danger that can be readily observed by the use of one's own senses, however (Tagle v Jakob, 97 NY2d 165; "[u]nder such circumstances, the condition is a warning in itself" [Tarricone v State of New York, 175 AD2d 308, 309]). Moreover, "[t]o constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it;" a general awareness that a dangerous condition may exist is legally insufficient to create constructive notice (Gordon v American Museum of Natural History, 67 NY2d 836, 837). Conclusions based upon mere speculation or conjecture are without probative value (Mueller v Hannaford Bros. Co., 276 AD2d 819, quoting Maiorano v Price Chopper Operating Co., 221 AD2d 698, 699).
Finally, claimant has the burden of proving his case by a fair preponderance of the credible evidence (
see, PJI 1:23). The trial court, in its capacity as trier of the facts, must view the witnesses and consider their statements upon direct and cross-examination in determining whether each witness is credible and the weight, if any, to be given to the evidence (see, PJI 1:8, 1:22, 1:41; see also, Johnson v State of New York, 265 AD2d 652 ).
The Court begins by examining this negligence claim premised upon the Defendant's failure to provide a handrail. As an initial matter, the "mere absence of a handrail on an exterior stairway is not a defective condition, an unusual hazard or a peculiar danger" (
Bohlig v Schmitt, 5 AD2d 1002, affd 5 NY2d 885) and "[t]here is no common-law duty requiring a landlord to erect a handrail for an exterior stairway in the absence of a defective condition or unusual hazard" (Easter v Cocco, 16 AD2d 1031, appeal dismissed 12 NY2d 756). Such a holding would be inconsistent with common experience ( Gallagher v St. Raymond's R. C. Church, 21 NY2d 554, 556-557). In the absence of any statutory requirement or some unusual hazard, no duty rests with the State to provide a handrail (Gauss v State of New York, 286 App Div 934).

Here, the experts dispute the applicability of the State Building Code to the subject stairway. Having observed the witnesses during their testimony, the Court credits the more specific explanation provided by Defendant's expert that the subject stairway, based upon its distance from the Pierce Hall exit, which the Court finds to be 36 feet, was not part of an exit and therefore no handrail was required. Gailor's singular reference on cross-examination to

"§ 765.3" as a standard apparently is a reference to Table IV-765 "Dimension Requirements For Exit Stairs, Handrails and Guardrails" which is incorporated by reference in § 765.4 "Stairways". However, this Part of the State Building Code is addressed to "exits", which, the Court finds, when taken as a whole, is consistent with Webster's testimony that the requirements are applicable to exits (see also § 765.4 [c], [Exterior stairway, which is accessed from exit doors at floor level shall terminate in legal open space])[5]. This finding by the Court that there is no statutory or regulatory requirement for a handrail is further supported by the fact that the subject stairway predates the promulgation of the State Building Code (see, P.O.K. RSA, Inc. v New Paltz, 157 AD2d 15, 19). Furthermore, Claimant has failed to provide any basis from which the Court could find the existing structure had become subject to same (see, i.e., Cole v Emunah Gen. Contr., 227 AD2d 877; Vachon v State of New York 286 AD2d 528).
Claimant's theory that the presence of the loose gravel constitutes a defective or dangerous condition which would require a handrail or other corrective action also fails. In the first instance, Defendant's general knowledge that the stairway required repair from crumbling concrete is legally insufficient to constitute notice of the particular condition that caused Claimant's fall (
Piacquadio v Recine Realty, Corp, 84 NY2d 967, 969). Moreover, the Court finds that the single prior accident, occurring three years earlier and on a different portion of the stairway, is insufficient to show either the existence of or SUNY's notice of a dangerous or defective condition of the stairway. Claimant's further theory that the repair performed by SUNY was defective and hence notice was not required (see, Princiotto v Materdomini, 45 AD2d 883; Ohanessian v Chase Manhattan Realty Leasing Corp., 193 AD2d 567) was dependent upon the testimony of Gailor. His opinion in this regard, while uncontradicted, was based on unspecified "copious information" and as such the Court declines to credit this testimony.
Finally, the Court finds Claimant's expert's statements regarding deviations from the tread and riser requirements of the State Building Code, as a cause, is sheer speculation, as this theory is inconsistent with Claimant's testimony that he slipped on loose material on the first or second step, (
cf. Bitterman v Grotyohann, 295 AD2d 383, 384).
Based on the foregoing, the Court finds that Claimant has failed to prove by a fair preponderance of the credible evidence that a dangerous or defective condition of the stairway existed and caused him to fall and suffer injuries, or, in the alternative, that SUNY had constructive or actual notice of a dangerous or defective condition that may have existed; therefore, the Claim is dismissed. The Chief Clerk is directed to enter judgment accordingly. Any motions on which the Court previously reserved judgment or which were not previously decided are denied.

January 10, 2003
Albany, New York

Judge of the Court of Claims

[1] Unless otherwise noted, all quotations are from the Court's notes or audio recording of the proceedings.
[2] The upper flight of the stairs descended to a landing from which the lower flight of stairs descended at a right angle. The lower flight of the stairway was equipped with a handrail on both sides. Brick walls with capstones formed the sides of both flights of stairs.
[3] Claimant also read a portion of Curtin's deposition into the record on his direct case.
[4] State Uniform Fire Prevention and Building Code (see, 9 NYCRR part 600 et seq.)
[5] Although Claimant has attached a 1992 CABO/ANSI reference standard (§ 1250.3[RS 72]) to its post-trial submission, the Court has found no incorporation by reference of the submitted standard in the cited State Building Code sections nor has Claimant provided a basis for its applicability (§ 610.1) to the facts at bar. The reference standard is cited in Part 1102 "Special Occupancy Provisions."