Jeanette Treglia, the Claimant herein, alleges in Claim Number 104753 that
Defendant's agents negligently maintained, managed and/or supervised the grounds
surrounding the campus center parking lot at the State University of New York at
Old Westbury (hereafter SUNY or Old Westbury). Trial of the matter was held on
July 28, 2003. This decision relates solely to the issue of liability.
Claimant testified that on September 2, 1999 she first arrived at Old Westbury
at approximately 5:30 p.m. for her 6:00 p.m. English class. She had been to the
campus on two or three previous occasions - to register and pick up books - and
that evening was perhaps the second class for the semester. After the English
course concluded it was twilight, "the sun was going
Claimant moved her car to the parking lot near the campus center to be closer to
her 8:00 p.m. course in computer science. The evening was clear, and she walked
from her parking spot to the computer class without incident. From her parking
spot to the computer class she had to walk along a four foot wide, cement,
walkway, bordered on either side by decorative rocks and stones, acting as a
divider between one set of parking lot lanes to the next. At intervals toward
the center of the divider there were trees, and light poles placed at periodic
intervals as well. The light poles were taller than the trees, and had two
lighting fixtures at the top; one pointed toward one side of the parking lane
across the divider, and another pointed toward the other parking lane.
At approximately 9:30 p.m. Claimant's computer class ended. It was still a
clear night but it was now quite dark. She walked from the class talking with
two classmates, one on either side of her, "Jeff Peress and Michael," and
carried her books in her right arm and had a handbag on her shoulder. She was
As Claimant stepped down off the curb of the walkway onto the asphalt surface
of the parking lot she stepped on top of a stone and fell. She did not see any
stone or rock before she stepped on it. As she fell, she placed her left hand
out to break her fall and protect her face; her books fell out of her right hand
and she fell down face forward hitting her elbow and knee at the same time. She
said she was "in shock" and in considerable pain. After she fell, "one of the
guys picked up the rock [she tripped on] and threw it back on the beds." She
said there were "more than 50" stones scattered outside the beds on the walkway
and on the asphalt parking lot. She also realized that one of the lamps had
burned out in the area where they had been walking.
Her companions helped her to her feet and escorted her to a place to sit. One
of them called campus security at the emergency call box, which arrived
approximately 15 minutes later. The security officer who responded checked the
area, made notes, then drove her to the security office, where she was given ice
and a taxi was called to take her to the hospital. She was treated at the
hospital emergency room and sent back to the school where she retrieved her car
and drove herself home.
Photographs taken in black and white film depicting the site of the accident
were admitted in evidence [Exhibits 10 and 1D], as were two stones that were
substantially similar to the one Claimant indicated she tripped on. [Exhibits 6
and 7]. With respect to the photographs, Claimant said that the trees were full
of leaves on September 2, 1999, as opposed to bare as shown in the photographs,
but otherwise the photographs were fair and accurate representations of the
scene where she had her accident.
On cross-examination, she conceded that she was familiar with the area in which
she fell having used the parking lot on at least two or three previous
occasions, and had observed stones and rocks on the walkways and asphalt on
those previous occasions. [
Exhibit A]. She walked the same route to class from the parking lot,
as she did on her return, and did not observe any rocks or stones in her path
that night, although she was aware that the island beds contained these
decorative stones. She agreed that the stones were a lighter color than the
asphalt surface of the parking lot, and that she could see clearly as she walked
from class. Although it became darker at the second walkway, and therefore
harder to see, she could still see "normally."
Jeffery J. Peress testified concerning the evening of September 2, 1999. He
essentially confirmed the facts of the trip and fall as recited by Claimant
except with the discrepancy that he was not walking and talking with Claimant as
they walked on the walkway of the parking lot, but rather was approximately 15
to 20 feet to her left, having her "in view" all the while. He said that it was
a dry, clear night, and that earlier he had not observed any stones outside of
the island beds on the way in to computer class. He saw Claimant fall, and saw
"rocks all over the place" and concluded she had tripped on a stone. He said
that the lighting was poor. He agreed that the rocks were a lighter color - as
shown in Exhibits 6 and 7 - and that the asphalt surface of the parking lot was
blacktop. When he went to her assistance, the rocks and stones around the lot
were visible. Although Claimant at first resisted medical treatment, at Mr.
Peress's insistence she agreed to seek out care. He said it took approximately
15 to 20 minutes to get campus security on the emergency telephone. He kept
getting busy signals or finding that the telephone would ring and then
disconnect. When he did contact security on the telephone, a security office
employee arrived within 5 minutes. Mr. Peress told the employee that Claimant
had fallen on stones. An accident report was apparently prepared by the
employee. [Exhibit 2].
William Marletta, a safety consultant, testified as Claimant's expert. He
defined a safety consultant as one engaged in the full-time practice of reducing
accidents, injuries or illnesses in the workplace or in places the public at
large might frequent. Certified as a Certified Safety Professional (CSP) - a
certification he said is "required to do safety work in the State of New York"-
Dr. Marletta indicated he had spent 20 years in the field, and in addition to
his other extensive educational background had completed his doctoral
dissertation on the topic of the effect of humidity and wetness on pedestrian
slip resistance. He had worked in the past as a safety consultant and inspector
for schools, in the area of buildings, walkways, and parking lots among other
areas, as well as for various insurance companies looking for "hazards and
deviations from safe practice," and any other risk management concerns,
including lighting, walkways, ramps, and floor surfaces. He testified that he
has been a self-employed safety consultant and litigation expert since 1990,
primarily concentrating on slip, trip and fall issues, including measuring the
resistance of surfaces, what "interrupts the gait," resistance research,
investigation of "large loss accidents," and development of training programs.
He had consulted at several SUNY campuses in the past as well.
Dr. Marletta testified that he visited the accident site at Old Westbury on two
occasions accompanied by the Claimant. The first time he visited the site was
on November 20, 2002 during daylight hours. The second visit to the site was on
March 27, 2003 at approximately 9:00-9:30 p.m. Photographs were taken on both
occasions. The witness took various measurements as well, including measurements
of the decorative rocks lying in the parking lot island, the curb depth, the
amount of light emitted during his nighttime visit, and the slope of the
During his daytime visit three years after the accident, Dr. Marletta estimated
that the rocks and stones in the decorative beds were between 1½" to 3
½" in diameter, and testified that the stones were at or above the level of
the walkway, and above the level of the curb to parking lot. The walkway
itself was on a 5.7
slope in the direction taken by the Claimant toward the parking lot
. He observed many loose stones "all over the parking lot." Photographs taken
by the witness on that day
belie many of his observations however.
, Exhibits 10, B, C, D, and E]. To the extent that the testimony
by both Claimant and Dr. Marletta was that these photographs fairly and
accurately represent the layout of the parking lot and walkway and placement of
the stones, the Court cannot help but note that the decorative stones in the bed
are predominantly either at or under the level of the walkway and the curb,
there are no stones on the walkway and there are, at most, a few small stones on
the asphalt parking lot. In the one photograph Claimant most affirmatively
identified as reflecting the scene of the accident, there are no stones above
the bed level, and there are no stones in the walkway or on the parking lot
Additionally, Dr. Marletta testified that on his nighttime visit he took light
readings in the parking lot calculated by "footcandles of light," a measurement
recognized by an organization known as the Illuminating Engineering Society of
North America (IES). He testified that on the evening of March 27, 2003 there
were four light sources closest to the walkway, and these were between 82 and
150 feet away. He measured "one, one-hundredth of a footcandle of light" along
the walkway, opining that this amount of light was "twenty times less than the
minimum recommended by the IES for areas of low activity."
Dr. Marletta opined that the design of the stone bed islands created a
dangerous condition, contrary to good and accepted safe practice. The stones -
at between 1 to 3½ inches in diameter - were likely to roll off the island
and onto the walkway and asphalt surfaces of the parking lot, given the lack of
depth in the beds in which the stones were placed. Even without consideration
of the inadequate lighting, a tripping hazard was created in his opinion. Given
the inadequate lighting, the presence of stones in the parking area presented a
"particularly hazardous condition."
On cross-examination Dr. Marletta conceded that the decision to use stone bed
material on the islands - as opposed to grass, or more concrete, or other
materials - was a discretionary one made by the designing engineers, and that
he himself might have designed the parking lot in the same fashion. The amount
of stone fill used would also be in the discretion of the person doing the
filling. He admitted that drainage is a consideration when constructing a
parking lot, and that there could be run-off if less porous materials were used
without proper drainage. With respect to the slope of the walkway, he admitted
that it may have been that the entire parking lot was on a slope that had been
leveled, and admitted that drainage became even more important when constructing
on a slope.
He admitted that the use of stones was common in residential and commercial
construction, but protested that he "[didn't] think they were commonly designed
the way this was with stones higher than the curb." He admitted that
pedestrians don't always use walkways, and that smaller stones are more likely
to get shuffled onto the pavement by pedestrian traffic. He said that "abrupt
vertical transitions" create tripping hazards. He said that a ¼ inch to
½ inch transition is considered level, and an over ½ inch transition
is a recognized tripping hazard in a walkway. He would not say, however, what
he would propose to be the proper depth between a curb and a filled-in bed that
would avoid creation of another tripping hazard because of a level change of
greater than ½ inch between the stone bed and the curb.
The witness reaffirmed on cross-examination that the photographs taken of the
parking lot during the daylight hours are fair and accurate depictions of the
placement of the stones as of the day of his visit 3 years after the accident.
[Exhibits 10, B, C, D and E]. Specifically, he too identified photographs that
show the stones in the beds at or well under the curb level and no stones on the
walkway or asphalt surface. [
Exhibits 10, B, C and E]. He also identified a photograph of a stone
against the asphalt surface as showing the distinction in coloration between the
stone and the blacktop lot. [Exhibit 9].
He admitted that the IES lighting standards are not mandated, but rather
suggest appropriate lighting for given situations. At first saying that the
nighttime photographs he took fairly and accurately depicted the parking lot at
night, he retracted that notion when he appeared to realize that the photographs
showed the presence of ample light as shown by the creation of shadows, among
other things. [
Exhibits 1 A through 1 P]. He would not concede that if a pedestrian
said he could see the stones, the amount of lighting was irrelevant. He said
that the nighttime photographs were useful to show what light sources there
were, and the general area of the Claimant's trip and
On her direct case
Claimant also used the deposition testimony of William P. Kimmins, an Assistant
President at Old Westbury, taken at an examination before trial on March 5,
2002. Mr. Kimmins is now responsible for the overall facilities at Old Westbury.
Others responsible for more hands-on grounds maintenance report to him. He was
not responsible for the facilities on September 2, 1999. The only information he
had about the Claimant's accident was relative to the accident report filed by
security personnel, and he was unclear as to where the accident occurred.
[Exhibit 2]. He indicated that when he parked his own car - it is unclear from
the deposition testimony whether he parked in a different parking lot from the
subject parking lot - he saw stones off the stone bed on occasion, specifically
up against the curb where he parked. He did not see stones elsewhere in the
parking lot. He presumed that part of the maintenance crew's job would be to
clear the parking lot of stones.
No evidence of prior accidents at Claimant's accident site or of complaints
about the parking lot was submitted.
In an action arising from a trip and fall, it is well-settled that the Claimant
must show that the Defendant either created the dangerous condition causing the
accident, or had actual or constructive notice that the dangerous condition
existed and failed to remedy it within a reasonable time.
Gordon v American Museum of Natural History
, 67 NY2d 836, 837 (1986). A
landowner's duty is to exercise "reasonable care under the circumstances . . ."
[Basso v Miller
, 40 NY2d 233, 241 (1976)], to protect against foreseeable
risks of harm. Creation of a dangerous condition constitutes actual notice.
Lewis v Metropolitan Transp. Auth
., 99 AD2d 246, 249 (1st Dept 1984),
64 NY2d 670 (1984).
With respect to constructive notice, any
". . . defect must be visible or apparent and it must exist for a sufficient
length of time prior to the accident to permit . . . [a defendant] to discover
and remedy it . . . (citation omitted
)". Gordon v American Museum of
, at 837; see also
, Mercer v City of
, 88 NY2d 955 (1996). It is only those foreseeable dangerous
conditions which are not remedied within a reasonable time which may establish
liability on the State's part, [Gordon v American Museum of Natural
], assuming that proximate cause and actual damages are
proven as well.
Upon review of all the trial evidence and upon listening to the witnesses
testify and observing their demeanor as they did so, the Court finds that
Claimant has failed to establish that Defendant was negligent. Under several
theories, Claimant has failed to establish the Defendant's liability by a
preponderance of the evidence. She has not established that the State had
notice of a dangerous condition and failed to take steps to remedy it within a
reasonable period of time. No evidence of prior accidents at the scene has been
submitted, nor has any evidence of prior complaints concerning the parking lot
been offered to establish notice.
See Smith v State of New York
, 260 AD2d 819, 820 (3d Dept 1999)
The only evidence offered on this element of a claim for negligence - which is,
at best, marginal - would seem to be that Mr. Kimmins had seen stones in the
parking lot where he parked his own car. In terms of having created the
condition, it is not established by the evidence that no intervening factor -
such as other pedestrians - caused the stones to be in the parking lot, nor was
there evidence of how long the stones were there. The photographic evidence
submitted demonstrates that the decorative stones lodged in the pertinent median
were below level: a design detail Claimant's own expert found acceptable.
Even if the State's agents were aware that stones from the medians were
disturbed on occasion and would find their way onto the asphalt parking lot,
Claimant has not established that any stones remained on that surface for an
"unreasonable" amount of time. Depending on which version of the Claimant's
testimony is accepted - that given on direct or cross-examination - there were
stones visible before she went to class, or they only appeared on the asphalt
upon her return. If there were stones in the parking lot and along the walkway
before Claimant went to class, any failure to have cleared them away is not an
"unreasonable" failure to correct a condition in this Court's view. Similarly,
if the stones were disturbed some time after she had gone to class, and before
she emerged at 9:30 p.m., there is still no unreasonable failure to correct the
The alleged dangerous condition was minor, open and obvious. Indeed, Claimant
herself was generally aware that stones might lie on the area she would walk on,
had walked over the same area on her return from class that she had traversed on
her way to her class without incident, and was able to see normally despite the
dark. What the lighting conditions were is irrelevant given the testimony by
Claimant that she could "see normally." Any condition of loose stones was
by those employing the reasonable use of their senses'. . .
)."See Persing v City of New York
AD2d 641, 642 (2d Dept 2002); See also Dominitz v Food Emporium,
271 AD2d 640 (2d Dept 2000); Costello v Grand Cent. Plaza
, 268 AD2d 722
(3d Dept 2000).
Additionally, the defect alleged herein is too trivial to be actionable, and
does not have "the characteristics of a trap or nuisance."
Arsenicos v Westland S. Shore Mall
, 294 AD2d 385 (2d Dept 2002), lv
, 98 NY2d 612 (2002); Nathan v City of New Rochelle
, 282 AD2d
585 (2d Dept 2001). A property owner may not be held liable for damage
resulting from a trivial defect, ". . . over which a pedestrian might merely
stumble, stub his or her toes, or trip . . . (citations omitted).
Hargrove v Baltic Estates
, 278 AD2d 278 (2d Dept 2000).
Absent undertaking a special duty toward an individual Claimant, [
, D'Avolio v Prado
, 277 AD2d 877 (4th Dept 2000)], the
State is protected by immunity considerations for performing actions or making
decisions requiring the exercise of discretion. See generally
Sebastian v State of New York
, 93 NY2d 790 (1999); Arteaga v State of
, 72 NY2d 212 (1988). Claimant's own expert testified that the
design decisions made when designing a parking lot are discretionary
Finally, failure to follow an alleged lighting standard does not create
liability alone. The lighting standards used by the IES are not mandatory but
serve only as guidelines. Moreover, as noted earlier, Claimant's testimony that
she could see "normally" makes any alleged defect in lighting irrelevant as a
causation element in this negligence claim.
Accordingly, in this case, Claimant has failed to meet her burden of
establishing the existence of a dangerous condition created by the Defendant or
of which Defendant had actual or constructive notice, and Claim Number 104753 is
hereby dismissed. All trial motions not otherwise disposed of are hereby
Let judgment be entered accordingly.