New York State Court of Claims

New York State Court of Claims

KARLIN v. THE STATE OF NEW YORK, #2003-032-511, Claim No. 103146


Claimant failed to establish that the State was negligent in allowing certain open, obvious, and trivial defects to exist on a stairway leading into a public building or that any such defect was a proximate cause of her injury. In addition, a work project performed on the stairway several years earlier did not constitute an "alteration" or "addition" so as to require that it be re-built in accordance with the Building Code requirements applicable to new construction.

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:
James Ostrowski, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Frederick H. McGown, III, Esq., Assistant Attorney GeneralOf Counsel
Third-party defendant's attorney:

Signature date:
April 16, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

On October 23, 1999, claimant Deborah A. Karlin fell and injured herself while ascending an outside stairway leading into the Administration Building at Clinton Correctional Facility. Claimants allege that the State is responsible for Mrs. Karlin's injuries[1]
because it had been negligent in its repair and maintenance of the stairway, thereby creating a dangerous condition, and/or because it failed to provide adequate means of access to handicapped persons, which Mrs. Karlin was entitled to use. Defendant argues that there can be no liability in this instance because: any defect on the Administration Building stairway was, at most, trivial; claimant failed to establish a causal connection between her fall and the condition of the stairway; and any lack of handicapped access is irrelevant as the Karlins never asked for special accommodations when entering the building. Following trial of the issue of liability, the Court concluded that claimant failed to establish, by the preponderance of the credible evidence, that the State was negligent in any respect or that any hypothesized negligence on the part of the State could be considered a proximate cause of Mrs. Karlin's injury.
Mrs. Karlin, who is a Registered Nurse
, testified at trial that her son was convicted of a crime in 1993 and, in the spring of 1994, he was housed at Clinton Correctional Facility. For the first two years of his incarceration there, she and her husband typically visited every other weekend. From 1995 through 1997, they normally visited him once a month, and after that they visited at least once every six to eight weeks. Except on those occasions when they were able to meet their son in a private trailer, the Karlins would report to the gatehouse near the Clinton Correctional Facility parking lot, check in, go through a metal detector, and then walk up an asphalt driveway to the Administration Building. There they would ascend the stairs located at the front of the building and go inside. It was on this stairway that Mrs. Karlin was injured.
On the day in question
, Mrs. Karlin went to the prison at approximately 3:00 A.M. to get a number for admission. She then returned to their motel for some additional sleep and, with her husband, drove back to the prison between 8:30 A.M. and 8:45 A.M. It was raining and Mrs. Karlin walked behind her husband as they approached the Administration Building and began to ascend the stairs (Exhibits 6, 19).
To ascend the staircase, Mrs. Karlin took the middle passageway, stepping on her right foot and holding onto the left handrail. She carried a change purse in her right hand. She testified that she had begun to climb the stairway, leading with her right foot as usual. Mrs. Karlin was unable to recall the specific events that caused her to fall. When requested to do so, she marked the spot where she fell on Exhibits 6 and 29. She testified that she only remembers being "flat out on her face" after the fall, with her upper body to the left of the handrail and her lower body angled to the right of the handrail. She stated that she did not know what caused the fall and could not say absolutely whether she had placed her foot on the landing, whether her foot slipped, or whether she tripped. She thought that most of her foot was already on the flat part of the surface of the landing when she fell, but is only certain that at the time of the fall she had been holding onto the railing with her left hand.

After the accident, her husband helped her up and into the Administration Building. At that point in time she was conscious of a pain in her right arm. She told the guards that she had fallen and felt very dizzy, and she was ushered into an anteroom toward the back of the lobby. Facility medical personnel attended to her. A short while later an ambulance was called on her behalf.

On the day of the incident, Mrs. Karlin was wearing Birkenstock clogs, which she described as flat, rubber-soled shoes with very good arch support and good tread. They had a leather base with cork underneath, which allowed the shoe to mold to the wearer's foot, and a lip on the back that prevented the foot from sliding out of the shoe. Mrs. Karlin has worn this type of shoe since the early 1990s, and the pair she was wearing on October 23, 1999 was one that she had for three years. That pair had been recently re-soled which, she stated, made them "like new."

As indicated, it was raining on the morning of the accident. Mrs. Karlin described the rain as being medium to light but not a downpour. She noted that she did not need a raincoat. She testified that the amount of moisture shown in Exhibits 1 to 8 and Exhibit 22 was similar to what she saw going up the stairs. The stairs that morning were wetter than those depicted in Exhibits 26 and 27. Mrs. Karlin testified that there was a handicapped permit on the car that she and her husband drove and, in fact, that both she and her husband were entitled to a permit (Exhibit 36). There was handicapped parking in the lot outside the gatehouse, which they used. If the designated spots were filled, they would ask at the gatehouse for alternative parking, or Mr. Karlin would drop off his wife and she would wait for him at the gatehouse.

Mrs. Karlin testified that they were never informed about any handicapped access into the Administration Building. In 1996, while the front steps to the Administration Building were being reconstructed, they and other visitors used the back entrance (Exhibit E). Mrs Karlin stated that she never observed any ramps at this location, nor was she or her husband told that any ramps could be made available. On the other hand, she acknowledged that she did not tell anyone about her handicap other than the guards in the parking area, that she never indicated the need for any assistance, and that she had never used a wheelchair, cane or walker which would have indicated that she might need assistance. On the day following her accident, she returned to the prison in mid-afternoon and used the same steps, this time without incident.

Mrs. Karlin had been issued a handicapped permit because, according to Dr. Sewall Miller, an orthopedist
,[2] she had chondromalacia (abnormal wearing away of cartilage) in both knees and subluxation of both patellas (crooked knee caps). These conditions cause her to be more deliberate in the way that she walks. Mrs. Karlin stated that she had to walk slowly when going up stairs and that she would use ramping when it was available. Shallow ramps, she indicated, were easily handled, whereas steep ramps caused some pain. When asked on cross- examination whether her knees had ever "given out" on her, she stated that this did occur sometimes but that it had never caused her to fall. She also acknowledged that in the period between 1994 and 1999, she had passed through the general area of the accident approximately 80 to 100 times.
James H. Karlin testified that on the day in question, the steps leading to the Administration Building were "really wet," with some areas being more wet than others. He was approximately two steps ahead of his wife and did not observe her fall. He only heard her call his name and turned around to render assistance. He described her as lying face down in a puddle, in a "five point flat stance," with her left foot dangling over the step. As he helped her up, she cried out that her arm was hurt.

Mr. Karlin is entitled to a handicapped permit himself because he has spinal stenosis. He confirmed that if the few handicapped parking spaces outside the main gate were full, they would often park elsewhere. He also stated that several years earlier he had mentioned to a correction officer at the gatehouse that there was not enough handicapped parking. He agreed with his wife that there were no signs or instructions about handicapped access to the Administration Building. They had never made any request for such access because they were under the impression that there were no special facilities with handicapped access. In 1996, however, when the steps were being reconstructed, he had asked the guards if they would now be "ADA (Americans with Disabilities Act) compliant." When asked about the rear entrance which was used during the period of reconstruction, Mr. Karlin stated that although there were fewer steps into the building than in the front, it was actually worse than the front entryway because the stairway was made up of the original stone steps which were over 100 years old. In fact, the only time his wife had fallen prior to October 1999 was on one occasion when they were using the back entrance.

Joseph Provost was the Correction Officer at Clinton Correctional Facility who checked visitors into the Administration Building on October 23, 1999. Because his station was inside, about fifteen to twenty feet from the entrance, he did not see what happened to Mrs. Karlin. He did see Mrs. Karlin being assisted through the lobby door, and he directed her to a back room and then notified his supervisors. When Correction Officer Provost had come in that morning for his 6:00 A.M. to 2:00 P.M. shift, he noted that it was raining "off and on." He did not see anyone deicing the steps that morning but stated that he knew this was done by inmates as needed, under the supervision of a Correction Officer. He identified Exhibit 9 as accurately depicting the lights above the Administration Building's front door. He stated that he did not know who controlled those lights or whether they automatically turned on if it was rainy or cloudy. Correction Officer Provost was aware that there was a handicapped access to the building that could be created by using temporary ramps over the stairs located in the back of the building. He had seen visitors, some in wheelchairs and others using walkers, make use of this method to enter the building.

Vernal J. Favreau, Jr., a Correction Officer at Clinton Correctional Facility, also arrived at work around 6:30 A.M. on the day in question and, as the facility's Fire and Safety Officer, he was called to investigate the accident. He testified that he first saw Mr. and Mrs. Karlin in the lobby of the Administration Building. He called for a nurse and then for an ambulance. He agreed with Correction Officer Provost that there was no fixed handicapped access for the building but that there were ramps which could be set up when needed. He also had seen people in wheelchairs use these ramps in the past and, on occasion, had helped set them up.

Steven Good, a civilian
employee at Clinton Correctional Facility, testified that on October 23, 1999, following Mrs. Karlin's accident, he took photographs of the steps leading to the Administration Building (Exhibits 1 - 8). Mr. Good also talked about the handicapped ramps in use at the facility, explaining that they were temporary ramps made of wood and sloped for use by wheelchairs. Photographs taken on December 4, 2002 showed the small ramp used for the first step (Exhibit A), the same ramp from a different direction (Exhibit B), and a second ramp that goes inside the door and covers the stairway (Exhibits C & D). Good testified that when someone indicated that they needed assistance entering the building, these ramps would be placed on the stairs located at the back of the Administration Building. To the best of his recollection, this would happen perhaps once a month or once every two months. The ramps were available on October 23, 1999. Mr. Good was unable to say whether there were any instructions or signs about this handicapped access which would be seen by visitors as they checked into the prison.
Mark Dutton, a construction supervisor for the general contracting firm of Murnane Building Contractors, testified that in 1996 his company was hired to replace the old set of stairs going up the front of the Administration Building at Clinton Correctional Facility. He identified Exhibit 34-B as showing the foundation drawings for the new stairs. This exhibit shows installed wood forms with boards holding the "nosings" of the stairs in place. He explained that when you pour concrete, these aluminum nosings are used to keep the construction in place and to dissipate water on the stairs. In addition, the aluminum grips the bottom of the shoes of someone walking up the stairs. In response to a question on cross-examination, Mr. Dutton acknowledged that if concrete is not vibrated properly, it will not properly surround the attachment device of the nosing. He noted, however, that the State tests these features when the work is done, to make sure that it was done properly.

Bradford Barcomb, who has worked as a mason at Clinton Correctional Facility since 1994, testified that on October 23, 1999, his supervisor was Chuck Layhee, the Maintenance Superintendent. He identified Exhibit 35 as the work order that came to him from Mr. Layhee in early 1999, requiring some work to be performed on the Administration Building stairway. He and Mr. Layhee looked at the job together and decided that, where there were areas of loose cement on the stairs, around the nosing pieces, they would clean it out, replace it and then put the cement back to its original form. The cement was loose around the nosing pieces. Mr. Barcomb began the work on May 19, 1999 and completed it June 4, 1999 (Exhibit 35). Mr. Barcomb was assisted by two inmate workers who had masonry backgrounds and occasionally a general mechanic or mechanic helper.

To accomplish the repair, Mr. Barcomb used a hammer and chisel to remove the old cement in some places. Loose cement was then swept away and a fast-drying hydraulic cement called Stonehard was applied. Several minutes later, they were able to apply Acryl 60, a bonding agent, to bind the old cement to the new cement. Finally, they applied "thoroseal," which is used for several purposes: to give the stairs a uniform appearance, to provide texture to the surface, and to prevent water from going onto the cement. He described thoroseal as a type of concrete, having a cement base to which silica sand was added.

In performing this work, Mr. Barcomb never consulted the 1996 plans, did not use any measuring devices, and did not consult any building codes or regulations. He was never told that he should consult these sources or make measurements. The work that he had done could be seen in the photographs introduced as Exhibits 1 through 9. Exhibit 3 shows a white area where the thoroseal was painted onto the original cement, and Exhibits 1, 3, and 5 show the texturing of the steps. At the completion of the job, the supervisor, Mr. Layhee, looked it over and gave verbal approval.

Mr. Barcomb stated that when he came to the job site, not all of the nosings had been removed. Some were loose because the anchor had broken away from the nosing plates. He removed all the nosings from the stairs and said that he knew of no way to refasten them. When asked about the pitch of the steps, he stated that they were angled 1/8th of an inch away from the building (i.e., with the back of the tread higher than the front of the tread), so that water would run down the stairs. On Exhibit 34-B, the 1996 project plan design, he drew a box around a portion of the plan directly below item G (plan of aluminum base), which shows a sideview of the staircase and the requirement of a 1/8th of an inch pitch.

Stephen Granger, who holds a B.A. in Building Construction from Virginia Tech, began working for the State in 1983 for the Office of General Services (OGS). By 1996, he had been promoted to Engineer in Charge of Construction for all State facilities in Clinton County. In that capacity, he was in charge of all construction work at the prison and, in fact, he had an office in the prison. He stated that he is familiar with the steps at the prison's Administration Building, estimating that they had been built in the 1940s or 1950s.

The building's front steps were reconstructed in 1996 because the original granite steps had shifted and heaved and were in poor condition. He was not involved in the planning of this reconstruction, as that decision would be initiated with the Department of Correctional Services (DOCS). OGS then designs the project, and Granger became involved once the design was completed, prior to the project going out to bid. He identified Exhibits 34A and 34B as the final set of drawings for the 1996 reconstruction of the Administration Building steps. He reviewed the plans and did an on-site field check of them before reconstruction started.

Mr. Granger then served as the Engineer in Charge of the reconstruction project. He was not at the site on a daily basis, although some State inspectors were. Murnane Building Contractors did the reconstruction work. So far as Granger was aware, there was no discussion of creating any additional handicapped access in connection with the 1996 reconstruction.

The design plans called for the use of aluminum nosings on the steps, as was shown on page 60 of the project manual (Exhibit 44), and rigid forms used to create risers to exact dimensions. The concrete was poured into the forms and troweled while they were still in place. The plans called for the steps to have a pitch of 1/8 of an inch per foot (Exhibit 34B). The slope was created through the forms. When the reconstruction was completed, there was a difference between the drawings, which called for a riser height of seven inches, and the actual steps, which had risers of a little over six inches. Nevertheless, when Mr. Granger inspected the steps at the end of the reconstruction, he found them to be satisfactory.

He was aware of some problems with the steps after their reconstruction. The following summer some of the aluminum nosings came loose from the steps. Mr. Granger's theory was that the hot sun heated the aluminum, which eventually became hotter than the concrete, and expanded causing them to break loose. Each nosing was five feet long and lay between the hand railings (Exhibits 6 and 6A), with its anchors welded on the back and embedded in concrete. These studs, or anchors, remained after the surface part of the nosings came loose. Mr. Granger said that he contacted the manufacturer to see if he could get the nosings replaced under warranty, but his request was refused. When asked why he did not recommend that the nosings be replaced, he explained that that would not have been a simple task and could not be done easily.

Mr. Granger did not recommend that any repairs be done to the stairway until 1999. Although he had no responsibility for repairs at the facility and was not consulted during the repair process, he nevertheless watched the repairs and saw the nosings being removed and the concrete patched. When asked if the 1999 repair was in compliance with the plans, he stated that the only difference was that the steps now had concrete nosings rather than the original aluminum ones. Mr. Granger identified Exhibit 7-A as a picture of part of the stairs after the 1999 repairs were done. He acknowledged that, as pictured, they were not consistent with the original plans because no aluminum nosings were present.
Ernest J. Gailor, a licensed civil and environmental engineer, testified as an expert on behalf of claimant. His testimony was based on the original plans and specifications for reconstruction of the Administration Building steps (Exhibits 34A, 34B, and 44), on photographs taken by others that had been placed in evidence, and on photographs that he took and observations he made when he visited the site on October 24, 2001 (Exhibits 24 - 33).
On the basis of this inspection, he stated that the 1999 repairs, in which the nosings were removed and replaced with concrete, had been done improperly and made the stairs unsafe. Once the aluminum nosings were removed, the steps now had a "chamfered" (rounded or "knocked off") edge (see Exhibit 45 [drawing by Mr. Gailor]). The chamfer varied with the amount of material missing, and consequently there was no longer a consistent leading edge to the stairs, and no true corner. This, he stated, would make it more likely that a person's foot would slide down and off the step. In addition, chamfering changes the width of the treads. When shown a photograph taken on the morning of the accident (Exhibit 5-A), he stated that the dark spots represented the chamfer. Because Mr. Gailor found a variance of more than 1/8 of an inch when he measured several treads, he concluded that, after the repairs, the steps violated 9 NYCRR §765.4 (a) (9), which requires that treads shall be set level and shall not vary by more than 1/8 of an inch. Mr. Gailor cited a New Jersey study indicating that a variable of 1/8 of an inch could cause someone to slip and fall.

As for the use of thoroseal in the 1999 repairs, he stated that while it is a great sealant for foundation walls, it becomes "undone" when used on stairs because it spalls (breaks apart). Exhibit 32 shows what thoroseal looks like when it starts to spall off, and Exhibit 33 shows the thoroseal spalled off. Those photographs were taken on October 24, 2001, however, and thus do not establish that the spalling had begun at the time of the accident.

In Mr. Gailor's opinion, the 1999 repairs should have been effected by removing all loose concrete, constructing forms, and pouring a sand-aggregate concrete. Use of sand is important both for strength and for traction, he explained, and while thoroseal has sand in it, in that product it is all on the surface and will rub off. If enough of the top layer is removed, the surface will then become slippery when wet. Alternatively, a shield and an expansion bolt could have been used to keep the nosings in place. This would have been accomplished by drilling a hole into the face of the nosings and then bolting them down onto the shield
Mr. Gailor also testified that the steps were not built in compliance with requirements for handicapped access. He stated that the New York State Uniform Fire Prevention and Building Code ("Building Code") (9 NYCRR, Subtitle S) adopts ANSI standard A 117.1-1992
(Exhibit 46 ["Accessible and Usable Buildings and Facilities"]), and section of that standard requires that all steps on a flight of stairs have uniform riser height and uniform tread depth. The front steps of the Administration Building were not in compliance with these accessibility requirements because the tread depth was not uniform once the nosings were removed and because there should have been a ramp or an elevator at this location. The ramp provided for use at the building's back stairs was also non-compliant. A proper ramp, he stated, slopes at an angle of 1 inch for every 12 inches (in other words, there must be 12 inches of ramp to achieve a rise of 1 foot). Exhibits A through F, which show the back entrance to the Administration Building and the ramp that was placed over the stairs when requested, do not depict a proper handicapped ramp.
On cross-examination, Mr. Gailor acknowledged that the pitch of the steps was not altered by the 1999 repairs and, when shown Exhibits 1 through 8 (photographs taken on the day of the accident), he was unable to point to any evidence of spalling.
He was, however, able to point out chamfering in those photographs, particularly Exhibit 5-A. He conceded that a person could ascend the steps with chamfering without incident if they placed their foot in the middle of the tread, rather than on the edge, and he also acknowledged that he did not know what caused Mrs. Karlin to fall.
Raymond E. Webster, an architect with OGS since 1978, testified as an expert for defendant. He reviewed the drawings and the specifications and stated that in his opinion and with one exception, the stairway leading into the Administration Building complied with the Building Code that was in effect until January 1, 2003 (9 NYCRR, Title 9, Subtitle S). The Code requires that the top portion of the railing be 34 inches off the ground on stairs but 42 inches on landings (9 NYCRR §735.3). In fact, on the stairway in question, the railing on the landings is only 34 inches (Exhibits 19, 28 [circled area]). The rest of the stairway (its riser, treads, handrails and products used) was Code compliant.

For a flight of stairs, the Building Code requires treads to be a minimum of 9 inches (exclusive of nosing) and the riser to be a maximum of 8 1/4 inches (9 NYCRR §713.1). On the record plan (Exhibit 34-A), there are three instances where risers and treads are indicated, and in all three places, the risers are listed as 7 inches and the treads as 11 inches.
He measured the fourth flight of steps from the left and the second flight from the bottom (see, Exhibits H, I) and found 11 1/16 of an inch treads on both the first and second steps, with 6 3/8 of an inch risers, making the stairs compliant with the Building Code. When asked about chamfering, Mr. Webster stated that the Building Code does not mention it.
In Mr. Webster's opinion, it would have been extremely difficult to repair the stairs by reattaching the nosings in the way that Mr. Gailor described. If the nosings had broken away from the studs, those studs would have to be removed or ground down and the concrete, which had been attacked by water over the years, would have had to be rehabilitated before it could accept the nosings. When asked how he would have repaired the stairs, Webster stated that he would have recommended removing the loose nosings and patching the treads as was done. Furthermore, he would have used the same products that were used by Mr. Barcomb: hydraulic cement, Acryl 60, and thoroseal. Hydraulic cement is used for small repair jobs that require thin surfaces. Acryl 60 is used as a bonding agent to prepare concrete to receive another cementitious material, and it is also used as an additive to thoroseal to increase its bonding effectiveness.

As noted above, claimants assert that the State is liable for Mrs. Karlin's injuries because the stairway was dangerously defective and because there was no appropriate handicapped access to the building. Defendant, on the other hand, argues that any defect on the stairway was trivial, that there was no proof that any defect caused Mrs. Karlin to fall, and that the question of handicapped access is irrelevant because the Karlins never asked for special assistance to enter the building.

General Duty
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" (
Kampff v Ulster Sanitation, 280 AD2d 797 [3d Dept 2001]). When the State acts as a landlord, it is not an insurer of pedestrians on the grounds of its institutions (see, Bowers v State of New York, 241 AD2d 760 [3d Dept 1997]), but it does have a duty to maintain those grounds in a reasonably safe condition (Basso v Miller, 40 NY2d 233 [1976]). This duty includes the obligation to reasonably cure dangerous conditions that a defendant has created or of which it has had actual or constructive notice (Reinemann v Stewart's Ice Cream Co., 238 AD2d 845 [3d Dept 1997]).
Individuals have a duty to see and be aware of what is in their view and to use reasonable care to avoid accidents (
Terrell v Kissel, 116 AD2d 637 [2d Dept 1986]), in other words, "to see what by the proper use of [their] senses [they] might have seen" (Le Claire v Pratt, 270 AD2d 612 [3d Dept 2000], quoting Weigand v United Traction Co., 221 NY 39 [1917]). Thus, as a general proposition, a landowner has no duty to correct or 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 [3d Dept 1999], lv denied 94 NY2d 761; De Rossi v Golub Corp., 209 AD2d 911, 912 [3d Dept 1994], lv denied 85 NY2d 804; Tarricone v State of New York, 175 AD2d 308 [3d Dept 1991]).
Where, however, landowners have created the condition that poses a foreseeable risk of injury or where they have reason to anticipate that harm may result despite the fact that the danger is obvious, they "owe a duty of reasonable care to either warn such persons of the danger or to take other reasonable steps to protect them from it" (
Comeau v Wray, 241 AD2d 602, 603 [3d Dept 1997], citing to Restatement [Second] of Torts §343A[1]; Smith v Zink, 274 AD2d 885 [3d Dept 2001]). In Comeau (supra), the appellate court declined to issue summary judgment dismissing the claim of a delivery person who routinely delivered water-conditioning equipment and supplies to defendants' home and who was familiar with the deteriorating condition of the stairs leading down to the root cellar. The court noted that the defendants knew that the delivery person had to go down those stairs and knew that the stairs were deteriorating and held that there was a question as to whether, in those circumstances, the defendants had breached the duty of
reasonable care owed to the plaintiff (241 AD2d, at 603-604). Similarly, in Spannagel v State of New York (298 AD2d 687 [3d Dept 2002]), the State was held liable when a nurse slipped on a visibly wet floor in a prison medical unit because the required safety cones had not been set out and because it could be anticipated that in such a location a person's attention may be distracted, causing them to overlook the obvious.
Trivial Defects
Whether a defective or dangerous condition exists is generally considered to be a question of fact that turns on the circumstances of the particular case (e.g., appearance of defect; extent of defect; time, place and circumstance of the injury) (
Lamarre v Rensselaer County Plaza Assoc., __ AD2d __ , 2002 WL 32067102 [3d Dept 2003]). Some physical defects, however, may be so trivial as to preclude liability as a matter of law (see, id.; Mascaro v State of New York, 46 AD2d 941, affd on other grds 38 NY2d 870; Scally v State of New York, 26 AD2d 606, affd without op 24 NY2d 747). An "owner of a public passageway may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection" (Sullivan v State of New York, 276 AD2d 989 [3d Dept 2000], quoting Liebl v Metropolitan Jockey Club, 10 AD2d 1006 [2d Dept 1960]).
While there are no fixed rules as to depths of depressions in pedestrian areas, it has been held that, in most circumstances, a hole, depression, or non-alignment in a sidewalk or parking lot that results in a difference in height between one inch and two inches cannot support a finding of liability (
Allen v Carr, 28 AD2d 155,156, affd 22 NY2d 924; see also, Mascaro v State of New York, supra). Nevertheless, the depth of a particular depression or the difference in elevation at a
particular location cannot be the sole factor considered, and the decision must rest on the facts and circumstances of each case (Evans v Pyramid Co. of Ithaca, 184 AD2d 960 [3d Dept 1992]). Courts are to consider evidence such as photographs and affidavits describing the defect in order to determine "whether the defect was so trivial and slight in nature that it could not reasonably have been foreseen that an accident would happen" (id.; see also Tracy v St. Patrick's Church, 234 AD2d 871 [3d Dept 1996]). Other factors that have been referenced are the injured party's familiarity with the area, the length of time the condition has been present, whether there were any prior accidents, the nature of the area surrounding the defect, and lighting of the area at the time of injury (Julian v Sementelli, 234 AD2d 866 [3d Dept 1996]).
Trincere v County of Suffolk (90 NY2d 976 [1997]), the Court of Appeals recited the following as relevant facts to be considered: "the width, depth, elevation, irregularity and appearance of the defect along with the ‘time, place and circumstance' of the injury" (id. at 978, quoting Caldwell v Village of Is. Park, 304 NY 268, 274). Liability will result only if a consideration of the facts and circumstances leads to the conclusion that the defect posed an unreasonable risk of harm and possessed the characteristics of a trap or nuisance (Maloid v New York State Elec. & Gas Corp., 257 AD2d 712 [3d Dept 1999]) or was so out of character with the surroundings as to be a forseeable cause of harm (Tripoli v State of New York, 72 AD2d 823 [3d Dept 1979]).
Access for the Disabled
Pursuant to the State Uniform Fire Prevention and Building Code (9 NYCRR, Subtitle S, [Volume B]), newly constructed buildings that are designated category C6 (institutions, including prisons [9 NYCRR §703.7{c}]) must comply with the requirements for handicapped accessibility in all areas that are intended for "public and common use" (9 NYCRR §§ 1100.1, 1102.8). The same standards applicable to new construction must also be met in connection with alterations or additions to already existing buildings (9 NYCRR §§1100.1[f], 1236.1[a], 1236.3[b])[3]
unless the work project is considered to be a "minor alteration" or a "repair" (9 NYCRR §1231.3). To fall within this exemption, the work must be carried out with "like or similar materials to those existing" and can only change or modify a building in a way that does not affect health, fire safety or structural safety ("minor alterations") or must constitute replacement of existing conditions that are in need of repair ("repairs").
The Building Code includes the following definition of "repair":

Replacement or renewal, excluding additions, of any part of a building, structure, device, or equipment, with like or similar materials or parts, for the purpose of maintenance, preservation or restoration of such building, structure, device or equipment.

(9 NYCRR §606.3[175]). In contrast, an "alteration" is "[a]ny change, rearrangement or addition to a building, other than repairs; any modification in construction or in building equipment" (9 NYCRR §606.3[5]). No definition of "minor alterations" is provided in the Building Code's definition section. However, further guidance is provided by §1231.3 of the Building Code, which describes several categories of work that are not "minor" alterations. These categories include:
(1) removal, cutting or modification of any structural support;

(2) removal, change or closing of any required means of egress; [or]

(3) any change or rearrangement affecting loading, exit requirements or equipment requirements

(9 NYCRR §1231.3[a][1], [2], [3]).
Surprisingly, there is very little decisional law regarding whether and when failure to comply with accessibility requirements of the Building Code or other similar laws can lead to liability. In
Raimon v City of Ithaca (157 AD2d 999 [3d Dept 1990]), a paralyzed individual was injured when his hand-powered tricycle overturned as he detoured across a grassy area because there was no curb cut that he could use at the intersection he wished to cross. Highway Law §330 requires that reasonable access for handicapped persons must be provided when sidewalks adjacent to roadways are "constructed or reconstructed." The court held a previous resurfacing project did not constitute a "reconstruction," because it changed only the surface of the pavement and left other roadway structures in essentially their original form, and the inaccessible curb was not the proximate cause of the plaintiff's injury:
The record shows that plaintiff selected his route of travel knowing the sidewalk ended without an access ramp and, as he approached the end of the sidewalk, he chose to depart and cross the grass. Plaintiff had used this route previously and routinely traveled across the grass toward the driveway. The curb, at most, provided the occasion or condition for the occurrence, but was not one of the causes.

(Id., at 1001 [citations omitted]). Similarly, the Third Department held in Warrick v Capabilities, Inc. (299 AD2d 622, 623 [3d Dept 2002]) that even if the location of the handicapped parking area was in violation of applicable regulations, that location and plaintiff's resulting path of travel "merely provided the occasion for her accident, a fortuitous circumstance providing no legal connection between the alleged violations and the injuries sustained by plaintiff."
Causation in General
An event or act or omission can be considered the proximate cause of an accidental injury if the accident was "more likely caused by defendant's negligence than by some other factor" (
Wallace v Terrell, 295 AD2d 840, 841 [3 Dept 2002], citing to Gayle v City of New York, 92 NY2d 936, 937 ["A plaintiff need only prove that it was ‘more likely' or ‘more reasonable' that the alleged injury was caused by the defendant's negligence than by some other agency."]). A finding of proximate cause cannot be supported only by speculation (Moeske v Nalley, 295 AD2d 857 [3 Dept 2002]; Duffen v State of New York, 245 AD2d 653 [3d Dept 1997]), and where more than one reasonable inference can be drawn from the fact, the finder of fact "should not be compelled to speculate as to which inference it should accept" (Crandall v Kocak, 114 AD2d 713, 715 [3 Dept 1985]). If there is no reasonable basis for choosing one explanation over another, it is well-established that liability cannot be imposed.
Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury

(Wiwigac v Snedaker, 282 AD2d 801, 803-804 [3d Dept 2001], quoting Ingersoll v Liberty Bank, 278 NY 1, 7).
The credible evidence presented at trial established that the stairway on which Mrs. Karlin fell did not comply in all respects with the specifications of the plan for the 1996 reconstruction, because the metal nosings had been removed and new edges created from cement which was applied with a trowel rather than poured into forms. As a result, the corners of at least some of the steps had broken off and were chamfered – slanted or rounded – rather than forming a hard right angle as originally planned. The evidence indicated that there were other physical irregularities on the stairway. The railing height on the landings (although not on the stairs themselves) was lower than it should have been, and the surface of the steps may have been more slippery than intended because the thoroseal applied on top of the concrete in the 1999 repair project has a tendency to rub off over time.

The Court is unable to conclude, however, that these irregularities or defects, even in combination, posed a foreseeable and unreasonable risk of harm. The construction and condition of the stairway was open and obvious, readily and easily observable particularly to a person who was ascending the stairway. There was no reason to believe that visitors would be particularly rushed or that their attention would be diverted from the task of carefully mounting the staircase while they entered the building. In addition, these defects were, at most, trivial in nature and did not constitute traps or nuisances. There was no evidence of other, similar accidents at this location. Mrs. Karlin herself had safely used this staircase on many occasions over the years. Nothing about the steps was out of character with the surrounding features of the building. In fact, in the Court's view, the condition of the steps prior to the 1999 repairs, when many of the metal nosings had come loose and some of the concrete had worn or broken away, was in all likelihood a more dangerous situation.

Even if the State was negligent in permitting these several defects to exist, a proposition that the Court does not accept, there is simply no evidence from which it can be concluded, without inappropriate speculation, that the condition of the stairway constituted a proximate cause of Mrs. Karlin's fall. Neither claimants' expert nor anyone else – including Mrs. Karlin – knows why she fell on the stairway that morning. While it is possible that her foot slid on a chamfered edge or slipped on a smooth surface, it is equally if not more likely that she simply misstepped, or that her foot turned or her knee buckled as had happened on other occasions, or that she simply missed the tread because of a moment's inattention. To conclude that the accident was caused by chamfering of the tread, or by the inadequate height of a portion of the railing that she had not yet reached, or because there was a slippery spot where the thoroseal had worn away would be nothing more than speculation, which cannot support liability.

It is accepted by both parties and by the Court that the front stairway of the Administration Building does not comply with either the current handicapped access requirements (
see, §1100.1[a] [access must comply with Reference Standard 72, which would require among other things an elevator or a wheelchair ramp]) or even with the general building requirements (see, §765.4[9] ["Treads * * * shall not vary more than one-eighth inch in any run"]) applicable to new construction and to alterations and additions to existing buildings.
Claimant asserts that the 1996 reconstruction of the front stairway was either an "alteration" or an "addition", and, consequently, that the work project was not exempt from those more stringent requirements.
A fair reading of the regulatory scheme, however, leads to the conclusion that the work performed on the front steps in 1996 did not constitute an "alteration" or "addition" to the building. Although the rebuilt stairway differed in some respects from the previous one (for example, the original granite was replaced with concrete and additional railings were added), none of these changes are so significant that they would affect "health, fire safety or structural safety." In asserting that this project was not a "minor alteration," counsel for claimants points to the examples found in 9 NYCRR §1231.3(a)(1)(2)(3) and asserts that the 1996 project was either a modification of a structural support, a change of a required means of egress, and/or a change affecting exit requirements. There was no evidence presented to establish that a structural support was removed, cut or modified during the 1996 reconstruction. Admittedly the other two categories could apply to almost any work project, depending on how tightly one defines the term "change." Replacing granite steps with concrete ones is certainly a "change," but it is one that involves similar materials and does not affect or alter any provisions for "health, fire safety or structural safety" (
see, 9 NYCRR §1231.3[a]). In the absence of any decisional law construing the precise language of these regulations, the Court holds that the 1996 work project did not significantly alter the features or function of the preexisting stairway, was either a "repair" or a "minor alteration" and, consequently, did not trigger the application of those provisions of the Building Code applicable to new construction, including standards for access by handicapped persons.
It could be argued that this accident would not have occurred if Mrs. Karlin had been advised that she had the option of using a ramp to gain entry to the building, even if the ramp was not as long or gently-sloped as current standards would require. There is no evidence to suggest, however, that that information was withheld from her, as both she and her husband admitted that they had never asked about handicapped access into the building. The credible testimony of the State employees establishes, convincingly, that if a request had been made, the alternative entrance would have been set up. Mrs. Karlin was not forced, therefore, to make use of the front stairway because defendant offered her no alternative to that route.

The Court holds, therefore, that claimants have failed to prove by a preponderance of the credible evidence, either that the State was negligent in its maintenance of the Administration Building's front stairway, that there was any violation of governing regulations requiring alternative access for disabled persons, or that any defect created by the State was a proximate cause of Mrs. Karlin's accident. While the event itself is regrettable, there is no legal basis for imposing liability on the State under these circumstances.

The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.

Let judgment be entered accordingly.

April 16, 2003
Albany, New York

Judge of the Court of Claims

[1] The claim of James H. Karlin is derivative in nature.
[2] Dr. Miller did not testify at trial but counsel for claimants reserved the right to call him to testify about the nature of Mrs. Karlin's condition should such evidence be relevant or requested by the Court.
[3] The regulations also provide that when, within a six-month period, the cost of a building's renovation, addition or major alteration represents more than 50 per cent of the replacement cost of the building, then the entire structure must be brought in compliance with the new construction standards (9 NYCRR §§1231.3[c], 606.3[a][6]; Vachon v State of New York, 286 AD2d 528 [3d Dept 2001]).