Claimant failed to established either the existence of a dangerous condition or notice of any such dangerous condition on State owned ice rink. Claimant also failed to demonstrate the existence of exclusive control necessary for a finding of res ipsa loquitur. Claim dismissed.
|Claimant(s):||VINCENT JOHN GERNAT|
|Claimant short name:||GERNAT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||ZILLER, MARSH & LANG, LLP
BY: CRAIG Z. SMALL, ESQ.
|Defendant's attorney:||HON. ELIOT SPITZER
New York State Attorney General
BY: PAUL VOLCY, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 17, 2004|
|Appellate results:||23 AD3d 1015|
|See also (multicaptioned case)|
Vincent John Gernat ("Claimant") filed claim number 104442 on June 20, 2001, alleging that Defendant is responsible for the personal injuries he suffered on October 2, 2000, at Buffalo State College. I held a trial on this matter on November 17 and 18, 2003.
Claimant is a former member of the men's varsity hockey team at Buffalo State College. He alleges that the State, as owner and operator of the College, is responsible for injuries he sustained on October 2, 2000. On that day, Claimant participated in a practice session at the hockey arena on the College campus. The men's varsity hockey coach at the time, James C. Fowler, was directing the practice session. When another player checked Claimant into the dasher boards, an access door along the boards for entering and exiting the ice surface opened. Claimant fell through the door and suffered personal injuries as a result.
Claimant's injuries were rather serious and effectively ended his hockey career. When the door opened and Claimant was thrown onto the rubber mat outside the rink, he hyper-extended his knee and tore his anterior cruciate ligament.
The door along the boards was designed with a latching system that used what was known as a "guillotine latch." There were two large metal latches on the door that engaged two metal hook-like devices attached to the dasher board that functioned as strike plates for the latches. When the latches were engaged with the strike plates, the door was supposed to remain closed. The latch mechanism and the strike plates were attached to the door and dasher boards by means of fasteners that were held together by ordinary nuts and bolts. From outside the ice, the door was controlled directly by the latch mechanism on the outer surface of the door. People on the ice could open the door by pulling a string accessible from the ice surface and attached to the latch mechanism on the other side. For reasons disputed by the parties, rink officials requested that a deadbolt mechanism be installed onto the outside of the arena doors. When these deadbolt latches were used, the only way to open the door was from outside the rink.
David Hollingworth, a former employee at the College, testified that he installed the deadbolt latches onto the rink doors years before the accident. The deadbolt was not an original part or accessory designed for use with the door; Mr. Hollingworth constructed the deadbolt in the College metal shop using tools and items available there. Mr. Hollingworth installed the deadbolt because he was requested to do so in a work order from rink officials.
The parties presented conflicting evidence regarding the use of the deadbolt and the method of securing the door at games and practices. Scott Kirsch, an assistant coach on the hockey team, testified that the deadbolt was supposed to be used during practices and games. Whether or not the deadbolt was actually latched during a practice depended on whether or not someone was available to latch it. A rink official latched the deadbolt during games. The State's evidence indicated that the deadbolts were never used during practice sessions.
The State also presented evidence from its expert, Geordie Robertson, a college hockey coach, that hockey players from a young age are taught to make sure the rink door is closed as they come onto the ice.
Mr. Fowler testified that the players were taught that the last player on the ice had the responsibility to ensure that the rink door was closed securely with the latch engaged. Mr. Fowler also testified that the access door deadbolt was only used during "special events." Special events included hockey games, but not practices. Both State witnesses testified that hockey players are taught to close the door and then to push the door to ensure that it is closed securely with the latch engaged. Evidence at trial, from the State, shows that the players had to leave the ice often during practice to get drinks and/or to return to the locker room. This, according to the State, is why the deadbolt was not engaged during practice. If it were, then someone would have had to be available at all times to open the access door whenever players or coaches wished to leave the ice surface. The State also presented evidence in the form of a videotape about hockey showing that doors opening during hockey play is a common occurrence. Despite the evidence on the videotape, evidence at trial showed that the access doors at the Buffalo State Arena had never popped open.
The State built the hockey arena and State employees maintained the arena. Claimant presented evidence that arena workers, including Mr. Hollingworth, received numerous work orders requesting weekly inspection and repairs of the playing surface access doors. Claimant contends that these work orders put the State on notice of the allegedly defective latches on the access door. The work orders were issued by Mr. Hollingworth's supervisors at the hockey rink, a Mr. Lawrence Clark and a Ms. Nanette Payne. The work orders requested frequent inspection and repair of the rink access doors, including the installation of the deadbolt on the door through which Claimant fell. Mr. Clark also testified to Ms. Payne's frequent work orders concerning the access doors.
On the day of the accident, some of the players used the string to open the access door from the ice surface. They went to get drinks during a break in the practice. The team's trainer was stationed by the door on the outside of the rink. If he was available to open the door and a player or coach wished to leave the ice, he would open the door. However, he spent time in the locker room during the practice and was not always available to open the door. Thus, the players had to use the string.
Claimant alleges that the State is liable under a premises liability theory; namely, that the State did not use reasonable care in keeping the hockey rink in a reasonably safe condition. (see Basso v Miller, 40 NY2d 233). Specifically, Claimant alleges that the State failed to fulfill its duty to use reasonable care to keep the rink access door in a reasonably safe condition because the door latches insufficiently engaged the strike plates, the deadbolt was not inserted at the time of accident, the springs on the latch mechanism were inadequate, the fasteners attaching the latches and strike plates to the door and dasher board were loose and unsuitable for their intended purpose, and regular nuts and bolts instead of locking nuts and bolts were used on the fasteners. Also, Claimant alleges that the State was negligent in its maintenance of the door, because the nuts and bolts on the fastener assembly of the door were loose, despite the fact that there were numerous work orders requesting tightening of those nuts and bolts. Finally, Claimant alleges that the State's decision to install a deadbolt on the door is evidence of its knowledge of the defective condition of the door. Claimant also alleges the State is liable under a res ipsa loquitur theory, because the access door and latch were under the exclusive control of the State and, therefore, the accident could not have occurred without negligence on the part of the State (Harp v O'Neil, 256 AD2d 912).
The State maintains that there was no notice, actual or constructive, of the defective nature, if any, of the access door. The State claims that it was under no duty to use the deadbolt at the time of Claimant's accident. Moreover, the State claims, the fact that the deadbolt was installed years before the accident is not dispositive. The deadbolts were to be used during "special events," which the State alleges only meant during NCAA sanctioned hockey games.
Claimant's res ipsa loquitur theory is without merit. A res ipsa case requires that the defendant have exclusive control over the instrumentality causing Claimant's injury (States v Lourdes Hosp., 100 NY2d 208, 211). At trial, the evidence showed that many hockey teams, other than the Buffalo State College team, used the facility. Other college teams and teams from the community used the facility. Thus, the arena was not exclusively controlled by the State and Claimant's res ipsa theory fails.
The central issue in this litigation is whether the State had notice of the problem with the access door through which Claimant fell. Notice may be actual or constructive. Claimant has not shown that the State had actual notice of any specific defective condition concerning the access door. In order to constitute constructive notice, a dangerous condition must have been visible and apparent and must have existed for a sufficient length of time prior to the accident to give the State's employees time to discover and remedy it (Gordon v American Museum of Natural History, 67 NY2d 836, 837). The condition that caused the door to open was not visible and apparent, as the evidence shows that the door functioned properly in other hockey games and practices prior to the accident. Moreover, the regular inspections and repairs made by the arena staff failed to reveal any problem with the door.
Claimant presented expert testimony at trial in an attempt to prove that the door was dangerous. Claimant's expert was a mechanical engineer with no prior experience in the design of latching systems for doors. This expert was called to testify on the alleged inadequacy of the access door design. Given the expert's lack of personal knowledge or practical experience in the design of such devises, his testimony was stricken (see Martinez v Roberts Consol. Indus., 299 AD2d 399; Cervone v Tuzzolo, 291 AD2d 426, 427). Thus, Claimant has no proof of a specific dangerous condition that caused the accident on October 2, 2000. While the weekly work orders from arena management requesting inspection and repair of the access doors and the installation of the deadbolt suggest that the State was aware of or concerned with the safety of the access doors, "general awareness of a dangerous condition cannot create an inference of constructive notice of the particular condition that caused the [claimant's] injury" (Chianese v Meier, 98 NY2d 270, 278 ).
Accordingly, without notice, actual or constructive, of a specific dangerous condition that caused Claimant's injuries, negligence cannot be proven. Claimant has failed to prove that the State was negligent.
Accordingly, Claim No. 104442 is hereby DISMISSED. Any and all other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
May 17, 2004
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims