New York State Court of Claims

New York State Court of Claims

PATTERSON v. THE STATE OF NEW YORK, #2003-028-006, Claim No. 104501


Synopsis



Case Information

UID:
2003-028-006
Claimant(s):
PEARL PATTERSON and ROBERT PATTERSON 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:
PATTERSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
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):
104501
Motion number(s):

Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
ERIC TURKEWITZ, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Michael C. Rizzo, Esq.
Third-party defendant's attorney:

Signature date:
July 28, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is a timely filed Claim for personal injuries sustained by Claimant Pearl Patterson[1]
at the State-owned and operated Belleayre Mountain recreational facility in Ulster County, New York, when she tripped and fell in the Discovery Lodge. Claimant alleges she tripped over a loose baseplate on a railing separating the bar area from the seating area of the Discovery Lodge. It is alleged the State's negligence was the proximate cause of her injuries. Trial of this Claim was bifurcated and this decision addresses liability only.
On April 21, 2001, Claimant Pearl Patterson, accompanied by her husband Robert, attended a dinner dance hosted by the German American Club at the Discovery Lodge on Belleayre Mountain where they met their neighbors, the Franzens and Voglers. Claimant testified that once her party was seated, she decided to get a pitcher of beer for the table. The bar was located at the front of the room and was separated from the seating area by a railing that was decorated for the occasion. Claimant testified the tables, which were positioned perpendicular to the railing (T-18), were close together and that there was "very little room, [and] a lot of chairs" (T-20, 37). In an effort to inconvenience as few people as possible and to take the shortest route (T-38), Claimant proceeded to the railing, and instead of going to her left, began to walk and "side step [sic]" to her right (T-19), moving along the rail between the rail and the ends of the tables. When Claimant reached the end of the railing, she "went flying" and landed on her right hip on the dance floor (T-20). Shocked and embarrassed, Claimant testified, she "just wanted to go home" (T-21) and left the Discovery Lodge approximately an hour later. Claimant stated she did not see the baseplate before her fall, rather, she only observed it at some unspecified later time (T-22). She described the baseplate as "large" and "sticking up" (T-22). At the time of this accident, Claimant was wearing a pair of "flat blacks" (T-16) on her feet. She wore corrective lenses and the lighting condition inside the lodge was good (T-37).

Following her fall, Mark Vogler came to Claimant's aid and assisted her back to the table where their group was sitting. Thereafter, Vogler went back to look at the railing (T-53). He observed that there was a loose bolt extending three quarters of an inch out of the baseplate which attached the last post of the railing to the carpeted floor (T-54). Vogler stated the loose bolt was on the right side of the post and closer to the bar (
id.). At this point, Vogler retrieved a tool box from his car. When he returned, he "threaded the bolt back down into the base plate [sic] into the floor and tightened the other three bolts with approximately "a quarter turn" (T-55). Vogler testified that three sides of the baseplate were flush with the floor and that the one side with the protruding bolt had a "little bit of...play" (T-60-61).
Erwin Hildenhagen, the president of the host organization, the German American Club of the Northern Catskills, also testified for the Claimant (T-66). Hildenhagen estimated that 185 people attended the event of April 21. The host club was responsible for arranging the tables that night. Hildenhagen testified that the tables with attached chairs as depicted in the photographic exhibits was the furniture used on April 21. He was notified by another club member that a guest had fallen and was brought to the spot where Claimant had fallen (T-67). He stated he made no observations of the spot where Claimant landed on the floor but did notice that the baseplate, which he placed at "two to three feet" away, was "loose" and the front [the side closest to the bar] was raised "probably a half inch" (T-68). Hildenhagen testified he made these observations while standing. (
id.).
The baseplate in question was fabricated at the direction of Victor Kittle, Maintenance Supervisor at Belleayre. Kittle testified that the original baseplate had only two bolts and that it kept coming loose from the wear and tear on the railing. Kittle testified the original baseplate was modified by welding a six by eleven by three-eighths of an inch piece of metal to the bottom of the existing plate, thereby enlarging the existing baseplate by one and five-eighths inches on each side. The "new" baseplate was attached to the floor using four bolts located in the corners. The height or thickness of the new base, with bolts affixed, was three quarters of an inch, the same as the original baseplate with bolts affixed. Kittle testified the modification was made in 1999 and that no further problems of the railing becoming loose were experienced.

Charles Pultz, a New York State Park Ranger assigned to Belleayre, testified for the Defendant. Pultz stated that in the course of his patrol duties he has not, since 1999, seen the railing, with which he was familiar, loose or the bolts raised (T-105). Pultz added that there had been no complaints during that same time period regarding the condition of the railing and he found no records of any prior accidents involving the railing. He estimated that 100,000 people per year frequented Belleayre (T-106).

Each party called an expert witness to testify regarding the happening of this accident. Claimant offered Irving Paris (Paris), a licensed architect (T-110), while Defendant utilized Richard Pikul (Pikul), a licensed professional engineer (T-172).

Claimant's expert visited the accident site on June 7, 2001 at which time he made measurements and took photographs of the area (T-111). Paris stated the baseplate "intruded" four and three quarters of an inch (4 3/4") into the walkway (T-114) and opined that this did not conform to the "State of New York Building Code Standards or other standards which are generally accepted" (T-115) as "only one section of the Code. . . . allows for any protrudance [sic] or a difference in height in a floor area of no more than three-quarters of an inch. And that section has to do with door saddles [thresholds] at doors" (T-120-121; see also T- 151-152). Paris, relying upon the American Institute of Architects (AIA) book, which he identified as a source of generally accepted standards (T-125), further opined that the modified baseplate did not meet generally accepted architecture standards in 2001 as "[t]he illustrations . . . do not show any protrusion beyond the face of the railing extending into the path of pedestrian circulation" (T-131). Paris identified four different methods by which the railing could have been affixed to the floor without creating a tripping hazard (T-131-134). Paris testified that, contrary to accepted practices, the vertical surfaces of the modified baseplate were not rounded or beveled (T-141-143). On cross-examination, Paris confirmed that the baseplate's height of three-quarters of an inch was unacceptable and did not comply with architectural standards (T-150). Paris also acknowledged that although he did not do so, it is important to look at the use history and accident history of a site (T-155-157).
Defendant's expert visited the accident site, accompanied by Kittle, on July 2, 2002 (T-176-177). Pikul testified that the modification made to the baseplate increased its stability (T-186) and opined that the baseplate system was not in violation of the State Building Code (T-201). Pikul testified that neither the door saddle requirements, 9 NYCRR § 765.4(7), nor the American National Standards Institute (ANSI) standards for floors and handicap accessability, were applicable to the modification made to the baseplate (T-202-205), which he opined was a "reasonable modification" that complied with reasonable and accepted engineering practices (T-206-207). Pikul stated that repairs to the building, such as were made by Kittle, were permitted without requiring that the building be brought into compliance with the current Building Code (T-205). On cross-examination, Pikul resisted vigorous questioning suggesting that the wear pattern in the carpet exhibited a use which brought foot traffic over the baseplate (T-214-216 and T-229-233). Pikul further testified that the new baseplate had transitions, differentiating a transition (a gradual change in heights) (T-240-241) from a bevel (a smooth transition) (T-242-243) explaining that the fill-in weld which joined the plates together constituted a bevel (id.).
The State owed a duty to exercise reasonable care in maintaining the property in a safe condition under all the circumstances (
Perrelli v Orlow, 273 AD2d 533, 534, [citation omitted]; see Basso v Miller, 40 NY2d 233, 241). In order to establish a prima facie case of negligence, it was incumbent upon Claimant not only to identify a duty owed Claimant by the State, but to allege some breach thereof by identifying a dangerous or defective condition either created by defendant or of which defendant had actual or constructive notice. To constitute constructive notice, a defect must be visible, apparent and exist for a sufficient length of time prior to the accident to permit its discovery and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837). A landowner generally has no duty to warn of a condition that is readily observable (i.e., open and obvious) to a person of ordinary intelligence employing the reasonable use of his or her intelligence (Patrie v Gorton, 267 AD2d 582, lv denied 94 NY2d 761; see also 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). However, the landowner's duty to maintain the premises in a reasonably safe condition is not relieved simply because a danger is open and obvious (MacDonald v City of Schenectady, ___AD2d___, 2003 WL 21544166, 2003 NY Slip Op 15976, [3rd Dept, July 10, 2003]).
Next, the dangerous or defective condition must be a substantial factor in bringing about the claimant's injury (PJI 2:70; Boltax v Joy Day Camp, 67 NY2d 617). Such is not the case where the claimant's own culpable conduct is the sole cause of the injuries sustained (2 NY PJI 259; see also Iwaszkiewicz v Callanan Indus., Inc., 258 AD2d 776; Daversa v Harris, 167 AD2d 810).
Finally, a claimant bears the burden of proof by a fair preponderance of the credible evidence (
see PJI 1:23). The trial court, in its capacity as trier of 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; see also Johnson v State of New York, 265 AD2d 652; DeLuke v State of New York, 169 AD2d 916).
The credible evidence establishes, and the Court so finds, that Claimant did not know what caused her to trip and fall. As a general rule, this failure to establish what precipitated Claimant to fall in a situation where, as here, there could be other causes is fatal to a Claimant's cause of action (
see Ramee v Weathervane Seafoods, 273 AD2d 768).
Anticipating such a result, Claimant at trial sought to introduce hearsay testimony as either a present sense impression or excited utterance exception (
see T-21; ) to establish that she tripped on the baseplate of the last stanchion. The Defendant objected to the testimony and the Court, following an offer of proof, took the testimony, reserving decision on its admissibility and afforded the parties the opportunity to brief the question in their post-trial submissions (T-23-32).
Although Claimant testified that at some point after her fall she observed the condition of the baseplate (T-22), that testimony was contrary to her deposition testimony (T-40). Her at issue testimony distills to the following:[2]
Q:
Did you hear anything, Ma'am, after you had fallen?
A:
I believe people were pointing it out. I can't - - I was so traumatized. It's so hard
for me to honestly, positively say. I can't.

(T-34).
* * *

Vogler, who testified that he did not see Claimant fall (T-48) but reached her while she was still on the floor (T-47), offered the following testimony:
Q: What, if anything, did you hear Mrs.Patterson say as you arrived at her side as she lay on the floor?
A: I tripped on something.
(T-51).
* * *

Then, approximately fifteen seconds later, after helping Claimant to her feet,
Q:
What did she say?
A:
She looked over to the last guidepost at the end of the food service line, or the bar line, and - -
The Court: You saw her look in that direction?
A: Yes. And said, I tripped on something on the very end of this line.
* * *
Q:
What did you observe when you looked where she was indicating? What did you see?
A: I did not see anything immediately due to the fact that we had escorted Pearl back to the table so she could be seated.
(T-53).
It is black letter law that out-of-court statements offered for the truth of the matters they assert are hearsay. Such statements "may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable" (People v Brensic, 70 NY2d 9, 14 [citing People v Nieves, 67 NY2d 125, 131]; see also People v Brown, 80 NY2d 729, 734-735 [present sense impressions]; People v Brown, 70 NY2d 513, 518-519 [excited utterances])" (Nucci v Proper, 95 NY2d 597, 602 ).
An excited utterance has been defined as a spontaneous statement, made contemporaneously or immediately after a startling event, which asserts the observations of that event by the declarant and the present sense impression exception permits a court to admit hearsay testimony of a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. (People v Melendez, 296 AD2d 424, 425 [citations omitted]). "Thus, while the key components of ‘excited utterances' are their spontaneity and the declarant's excited mental state, the key components of ‘present sense impressions' are contemporaneity and corroboration" (People v Vasquez, 88 NY2d 561, 574-575). In determining reliability, a court must decide "whether the declaration was spoken under circumstances which render[ ] it highly probable that it is truthful" (Nucci v Proper, 95 NY2d at 602 supra [citations omitted]).
The Court finds that neither witnesses' testimony, properly analyzed as present sense impressions, and/or as excited utterances, is sufficiently reliable to permit its introduction. Claimant's testimony is lacking in any certainty that the "pointing" occurred. In fact, Claimant has failed to establish that any of the unidentified declarants saw the fall (
People v Watson, 299 AD2d 735, 737). Similarly, Vogler's testimony is attenuated - he only observed that Claimant looked in the direction of the railing and guidepost. He returned to the railing and made his own observation of the baseplate. This attenuated observation does not corroborate the inference Claimant seeks from this testimony; namely, that the baseplate was the culprit (see Irizarry v Motor Vehicle Indemnification Corp., 287 AD2d 716).
Assuming arguendo the Court were to admit the hearsay statements, the Claimant's circumstantial evidence nevertheless would fail to establish the existence of sufficient facts from which the defendant's negligence and causation could be logically and reasonably inferred[3]
(see Babino v City of New York, 234 AD2d 241; Catlyn v Hotel & 33 Co., 230 AD2d 655; Lally v Staten Is. Advance Co., 198 AD2d 213; Thomas v New York City Tr. Auth., 194 AD2d 663; cf. Brito v Manhattan & Bronx Surface Tr. Operating Auth., 188 AD2d 253). The hearsay statements establish nothing more than the direction from which Claimant fell and do not make it more likely that she tripped over the baseplate rather than the stanchion itself, or the table and chairs which were in close proximity to the railing, or any other person, including her own feet, (cf. Gayle v City of New York, 92 NY2d 936). This Court will not elevate the furtive glance of Claimant in the direction of the guidepost to admissible evidence with probative value of causation. As such, any conclusion as to causation would be "based upon surmise, conjecture, speculation or assertions" and be without probative value (Dapp v Larson, 240 AD2d 918, 919, quoting Maiorano v Price Chopper Operating Co., 221 AD2d 698, 699 ).
Based on the foregoing, the Court finds that Claimant has not proved by a fair preponderance of the credible evidence that negligence on the part of the State proximately caused the injuries that she sustained on April 21, 2001. The Court therefore dismisses the claim and directs the Chief Clerk to enter judgment accordingly.

Any motions on which the Court previously reserved decision or which were not previously decided are now denied.

July 28, 2003
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The Claim of Robert Patterson is derivative. All references to Claimant unless otherwise noted refer to Pearl Patterson.
[2] The Court restated the question to the witness (see T-33-34).
[3] In reaching this finding, the Court does not credit Claimant's testimony that she knew that which she did not trip over (T-41-42). Her testimony is credible only to the extent she did not know what happened ["I'm guessing that it was pointed out to me"]; T-42).