New York State Court of Claims

New York State Court of Claims

KOLNACKI v. THE STATE OF NEW YORK, #2004-034-002, Claim No. 103121


Case Information

BETTY KOLNACKI The caption has been amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
CELLINO & BARNES, P.C.BY: David O. Teach, Esq., of Counsel
Defendant's attorney:
New York State Attorney General
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 12, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant filed this suit to recover for injuries allegedly sustained in a fall at Artpark on July 8, 2000. By agreement of the parties liability issues became bifurcated from damage questions, and proceeded to trial before this Court on January 5, 6, and 26, 2004. Now, after weighing Claimant's testimony, as well as that of her husband, Francis Kolnacki, the Artpark Park Manager, Thomas Welch, and two expert witnesses, John P. Coniglio and Lawrence M. Levine, and upon review of 25 exhibits introduced into evidence, the Court finds and concludes as follows.

Claimant and her husband have been married for 48 years. They are longtime residents of Western New York. Now age 71, Claimant would have been 68 years old at the time of the incident. Despite her age, and cataract surgery during the spring of 2000, Mrs. Kolnacki testified that at the time in question she did not require eyeglasses for distance vision, and the Court believes her. She likewise had no impairment of her sense of balance or ability to walk.

On Saturday, July 8, 2000, Claimant and her husband drove to Artpark to attend a performance of the play "Showboat." Mr. Kolnacki drove, and they arrived at the lower "D" lot, which adjoined the main entrance to the park theater, between 7:30 and 8 o'clock in the evening. After parking their car approximately five rows from the back of the lot, the two proceeded to enter the theater area for the 8:00 p.m. performance. While Claimant and her husband had differing recollections as to which side of the parking lot they used to approach the entrance, they are consistent in their testimony that in so doing they walked along a perimeter sidewalk that adjoined the parking lot, rather than through the lot itself.

From the evidence the Court finds that D Lot is a rectangular asphalt surface located on one of several tiers of parking lots in the park. It was initially constructed in approximately 1974, when Artpark first opened. During 1995 or 1996 the lot was recoated, with approximately two additional inches of blacktop added to the original surface. A sidewalk area adjoins the edge of sections of the lot, separated by a concrete or stone curb. The elevation difference between the parking surface and the top of the curb is approximately 3½ inches. Parking spaces are designated in rows within the lot, positioned away from the curbed edge areas. In one section near the theater entrance Defendant has set aside a small number of parking spaces for use by disabled persons.

The entrance to the theater is located on the same level as D Lot. Access is gained by means of a walkway extending from one corner of the lot. From that point the sidewalk expands into a wider apron of concrete and brick strips, before narrowing again to a straight passageway to the theater entrance. Light standards are positioned at numerous locations along the apron and entrance area, and also within the parking lot itself.

Although the parking lot is basically rectangular in shape, the perimeter curb and sidewalk sections in the corner nearest the theater entrance do not join at a right angle. Instead, the two perpendicular lot edges connect by means of an angled section of curbing and sidewalk that cuts across what otherwise would be the corner of the lot. That angling has worked to create a short fifth side to the lot in the area nearest the entrance to the theater, and expand the size of the adjoining concrete and brick walkway apron. At one point along that short angled curb area Defendant constructed a blacktop ramp, 36 inches in width, that slopes down from the top of the curb to the parking lot surface. The sides of the ramp adjoin the curb at right angles. Each side edge would have a maximum height of approximately 3½ inches at the curb itself, then gradually diminish as the ramp slopes downward to blend into the parking lot surface. Those side edges each start at a sharp thirty-seven- to forty-five-degree angle adjacent to the sidewalk, then gradually flatten as the ramp extends further out into the lot surface itself. Crossing the base of the ramp, immediately adjoining the curb, Defendant has positioned a drainage pipe to facilitate water flow along the curb. At the time of the incident the pipe extended slightly beyond the side of the ramp, abutting the curb.

The ramp was not installed as part of the original construction of the lot, and instead was added in the late 1970's or early 1980's. According to Mr. Welch, who worked at Artpark when the ramp was built, that addition was not designed to accommodate disabled patrons, and instead served more general needs for access up the curb. Significantly, other areas of that lot provide for sloped curbing, and another ramp constructed for use by disabled patrons was in existence at the time of the incident.

The performance that evening took place in a venue described as half-full, and ended at approximately 11 o'clock. Immediately after the play finished Claimant and her husband proceeded to exit from the venue along the same walkway they had used to enter. Other patrons exited along with them. By that time the sun had long set, and all illumination came from the light standards positioned along the walkway and in the parking lot. The Court accepts the Kolnackis' descriptions of the lighting conditions in the apron area that adjoined the lot, which they characterized as "dim." However, there is no evidence of any violation of any statutory or other requirement with respect to lighting, or that any light standard in the area had failed to properly function. The Court also accepts Mr. Levine's comment that low-level illumination would be expected and reasonable in commercial parking lot areas. To the extent Claimant has attempted to base her claim on a failure to adequately maintain lighting, she has failed in her burden of proof.

Claimant's fall occurred as she and her husband attempted to return to their car. As they neared the area of the walkway apron closest to the parking lot Mr. Kolnacki moved more quickly, such that he was approximately five to six feet ahead of Claimant. He also was positioned at a slight angle to her, although their recollections differ as to whether he was located to Claimant's left or right. In contrast to the sidewalk perimeter route they had taken to approach the theater, their return had them enter the lot along the angled corner section of curb that adjoined the widened apron area. Other patrons also followed that route, positioned to the front, rear, and immediate left, and to a lesser extent, Claimant's right side. Although Claimant testified that she looked down as she walked, she never saw the curb or ramp as she approached the parking lot, and did not notice any movement that would have caused her to conclude that her husband or others ahead of her had stepped down to a lower level. She reached the area of the curb, which would have been angled somewhat to her line of travel, took another step forward with her right foot, and unknowingly placing it down onto what would have been the upper left edge of the ramp, just beyond the curb edge. She then started to move her left foot forward, and felt her right foot slide downward and to the left. The sudden loss of footing as Claimant's right foot slipped down the sharp side edge of the ramp caused her to start to lose her balance. At that point she also felt her left foot drop lower than she had anticipated. Mrs. Kolnacki attempted to regain her balance, without success, and fell directly forward, with the entire front of her body striking the ground. As she did, she called out to her husband for help.

Mr. Kolnacki, who would have been approximately six feet ahead of Claimant at that point, did not recall hearing his wife yell out as she fell. However, something must have caused him to look back, since he did not see Mrs. Kolnacki as she first tripped, but did see her fall forward onto the ground in his peripheral vision. The Court finds that he immediately returned to his wife's aid, notwithstanding a confused inconsistent answer that appeared directed to the total time he cared for Claimant at the point of her fall. Neither of them noticed the location of the ramp as Mr. Kolnacki helped Claimant get up from the asphalt surface, and walked her to their car. No other patron stopped to help, and Mr. Kolnacki did not seek out the assistance of any park personnel. He drove his wife directly to DeGraff Hospital, where she was treated for several hours in the emergency room before being released to return home.

In weighing causes for the fall the Court accepts Claimant's testimony that her footwear, which consisted of low-heeled, tie-type shoes, allowed for stable movement. The Court also accepts that the purse that Mrs. Kolnacki carried at the time of the incident did not contribute to her loss of balance. However, the Court must discount Claimant's statements that she had looked down toward the ground as she followed her husband to their car. Had she done so she would have been able to readily observe the curb and ramp areas, which the other patrons that night traversed without incident. Based upon the proof the Court instead concludes that in exiting from the theater Claimant observed the ground ahead to only a limited extent, while she also attempted to watch her husband as he moved more quickly toward their car.

In the course of examining Claimant and her husband, and in testimony elicited from its expert witness, Defendant effectively challenged their descriptions of the specific locations and manner in which the incident occurred, as well as their overall credibility. Notwithstanding those challenges, the Court accepts Claimant's and her husband's testimony concerning the incident itself. Having observed Mrs. Kolnacki on the stand, the Court was impressed with her demeanor as she described the incident. It is telling that in several areas where Claimant could readily have assisted her suit with embellished recollections, she instead was quite cautious in her responses. One such area of questioning had to do with post-fall observations of the ramp. Had Claimant wanted to falsely assist her suit she could have stated that she observed the ramp behind her and immediately to the right after she had fallen. Her husband could likewise have so testified, if the Kolnackis had conspired to establish a perjured basis for recovery, or if Mr. Kolnacki had simply decided on his own to falsely enhance his wife's claim. Further, the Court believes that the inconsistencies between Claimant's testimony and that of her husband as to whether he was to the left or right as he walked ahead of her, and their denials of any discussions concerning the specific reason for Claimant's fall in the days that followed the incident, reflect honest, if sometimes faulty recollections. Those minor inconsistencies and failures of recollection work to assure the Court that Claimant's testimony was not contrived, and that her description of the specifics of her fall can be credited.

As noted earlier Defendant called a professional engineer, Lawrence M. Levine, in part to dispute Claimant's description of her fall. It was Mr. Levine's position that the accident could not have occurred as Mrs. Kolnacki had described, in that a slippage of her right foot down and to the left would have caused her body to fall to the right, rather than forward. That opinion, however, was not supported by testing at the site or any engineering computations. He also failed to describe how Claimant's own forward momentum, the swinging movement of her left foot, the multiple slopes within the ramp itself, or any deviations in her estimated direction of approach, would have impacted on her angle of balance as she fell. In the Court's view the engineer's statement lacked a sufficient basis to credit, particularly in the face of credible inconsistent testimony from Claimant and her husband.

Mr. Levine and Claimant's expert, John Coniglio, each offered testimony regarding the design of the ramp, the applicability of various codes and rules, the potential hazards presented thereby, and the need for warnings. From the proof it appears that the subject ramp is variously known in the construction field as a "built-up ramp," "built-up curb ramp," or "public ramp," which simply means that it was positioned out onto the parking lot surface, and not recessed into the adjoining curb and sidewalk area. No signs warn pedestrians of the presence of the ramp, and the surface area is not marked with any paint striping or surface grooves. There are no railings at the ramp's edges.

As with all landowners the State owes a duty of care to those who make use of its parks, namely to exercise reasonable care to maintain its premises in a safe condition in view of circumstances, accounting for the possibility of injury to others, the seriousness of such injury, and the burden of avoiding such risk (Preston v State of New York, 59 NY2d 997, 998 [1983]; see generally Basso v Miller, 40 NY2d 233, 241 [1976]). However, the State does not act as an insurer of the safety of those who enter upon its lands (Tripoli v State of New York, 72 AD2d 823 [1979]). So also, negligence cannot simply be presumed from the mere happening of an accident, and instead must be affirmatively established by competent evidence of a breach of a duty of care (Mochen v State of New York, 57 AD2d 719, 720 [1977]).

During the trial considerable testimony was offered by each expert regarding the applicability of regulations promulgated under the former New York State Building Code, the 1984 New York State Uniform Fire Prevention & Building Code, American National Standards Institute (ANSI) standards as promulgated in 1980 and 1986, as well as standards set forth under the Americans with Disabilities Act of 1990 (the "ADA" [see 42 USC 12101 et seq.]), and related rules promulgated under 28 CFR part 36. Mindful of Claimant's burden of proof the Court has placed some minimal reliance upon the 1980 and 1986 ANSI standards for built-up curb ramps (Defendant's Exhibit E; Claimant's Exhibit 20), based upon Mr. Levine's testimony that the 1984 code initially incorporated the 1980 ANSI provisions as constituting generally accepted standards, and allowed for the prospect of subsequent rule amendments. To the extent applicable, a violation of such a regulation would constitute some evidence of negligence (see Hand v Gilbank, 300 AD2d 1067, 1068 [2002]), although the Court wishes to make clear that even in the absence of an applicable rule, it concludes that the angling of the ramp and curb along the natural path of the theater exit created a dangerous condition that became exacerbated by the absence of flaring along the ramp sides.

In finding the State negligent in its construction of the ramp the Court has been influenced by several statements that Defendant's expert offered regarding safety concerns in the positioning of curb ramps. Mr. Levine suggested that "[m]ost times you try not to locate the ramp in an area where you would expect cross traffic," and later offered further that even with flared sides he would not want to construct a ramp where he would expect people to cross. On that basis he believed that a 1:10 sloping of a side edge along a curb would have increased the danger by increasing the overall dimensions of the sloped area. The State's engineering expert did not suggest that the ramp in question presented a danger in and of itself, or by reason of the positioning along the angled section of D Lot. Nevertheless, when his comments are weighed in conjunction with Claimant's testimony as to how the flow of patrons left the theater and approached D Lot, and the photographs (Exhibits 5, 6, 9, 10, 11, 13 and 14) that depict the positioning and relative angles of the curb and ramp in relation to the walkway to the theater, the danger to which Mr. Levine alluded becomes apparent. In exiting from a performance patrons using the walkway depicted in those photographs to travel to their cars would find the closest access to D Lot at the angled section of curbing beyond the apron. The ramp likewise is positioned within that straight path of egress from the theater to the lot. Since the curb at that location is on an angle to the direction of the theater walkway, and the ramp is positioned perpendicular to the curb, patrons walking straight down the exit pathway to the parking lot would also tend to cross the ramp on an angle. In the Court's view the greatest danger would be presented where the ramp adjoins the curb, and the most acute splay is presented. Notwithstanding Mr. Levine's statement that flared slopes themselves present dangers, once Defendant chose to position the ramp at a location where angled cross-traffic rendered it inappropriate, it should have mitigated the traversing danger by reducing the angle of those side edges. To the extent that the State's engineer's comments can be interpreted to mean that, once constructed, adding flared edging to the ramp herein would have been imprudent, the Court disagrees. Fewer people might cross the ramp if its side edges are maintained at a sharp angle, but the consequences for those confronting an acute edge are more dangerous. Mrs. Kolnacki lost her balance as her foot slipped sharply downward, a factor that would not have been presented if the ramp's side edge had been tapered to a flatter slope.

The Court will next address the various regulations discussed by the two expert witnesses.

First, the Court will reject Mr. Coniglio's efforts to rely upon 28 CFR part 36 regulations promulgated under the ADA to support a finding of negligence against the State. In so doing the Court only needs to address one of the several arguments offered by the State in opposing Claimant's expert's position. The ADA prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodation of any place of public accommodation by any person who owns . . . a place of public accommodation" (emphasis added) (42 USC § 12182 [a]). Here, there is no evidence that Claimant falls within the class of disabled persons protected by the statute, so as to enable her to rely upon the provisions thereof in asserting an additional standard of care applicable to her (see Trimarco v Klein, 56 NY2d 98, 108 [1982]). Moreover, it is undisputed that Defendant had provided for disabled access at another point along the sidewalk, and that the ramp in question had not been installed to serve such purpose.

The Court accepts Mr. Levine's assertion that at the time of initial construction a 1960's version of the New York State Building Code would have been in effect, and that the former regulations would not have required flaring or other features for ramps having a vertical rise of only six inches. The State's expert acknowledged that with the 1984 enactment of the New York State Uniform Fire Prevention & Building Code the 1980 ANSI standards for ramps depicted within Exhibit E would have become applicable to construction projects. He also understood that at the point of the 1995-1996 resurfacing the1986 ANSI regulations (Exhibit 20) would have superseded the1980 standards, although he did not believe that either version of those standards would have applied to the asphalt resurfacing. In the Court's view, however, the ANSI regulations would have applied to work performed on the ramp at that time. As Mr. Coniglio noted, the absence of any demarcation on the surface of the ramp demonstrates that the ramp had been recoated at the time of the lot resurfacing. Accepting Mr. Welch's testimony that the old ramp had not been removed at that point, the photographs in evidence make clear that the ramp must have been substantially reconstructed at that point. First, for the ramp to have remained flush with the edge of the curb after a recoating, some milling of the original surface would have been necessary. Second, since two inches of asphalt were added to the surrounding lot at that time, further flaring along the edges of the ramp adjoining the lot must also have occurred. Third, since the surrounding surface had been raised two inches, Artpark personnel would necessarily have changed either the total length or the slope of the surface of the ramp. Most critically, the section of the ramp immediately adjoining the curb must have been removed and rebuilt in order to allow for the addition or repositioning of the drainage pipe at a level even with the new lot surface. That degree of modification of a small structure must be deemed reconstruction (see generally Raimon v City of Ithaca, 157 AD2d 999, 1000-1001 [1990]), and the Court finds that the ramp should have been brought into conformance with ANSI requirements for built-up curb ramps at that time. The Court agrees with Mr. Coniglio that under ANSI guidelines all such ramps anticipated 1:10 flared edging, rather than the 1:1.5 or 1:2 slope that existed. However, even accepting Mr. Levine's position that the ANSI regulations would only require a 1:10 slope if pedestrians were expected to cross the side edges of the ramp, the same result would obtain. As discussed earlier, the flow of patron traffic from the theater exit to D Lot traverses the ramp on an angle, such that even under ANSI section 4.7.5, relied upon by Mr. Levine, a gradual 1:10 flaring was required. The failure to comply with that standard is evidence of negligence. Conversely, the Court rejects Mr. Coniglio's opinion that a lack of paint or other warning on the approach or surface of the ramp would serve as a basis for recovery. However desirable such warning might be, they would have served no purpose unless Claimant had paid attention to the ground surface as she hurriedly followed her husband. Similarly, the Court rejects the claim that the State was negligent for failing to install a railing to assist Claimant in crossing a 3½ inch height differential.

On the proof the Court further finds under CPLR Article 14-A that Claimant also was negligent, and that her culpable conduct was in several respects a substantial contributing factor in her fall. In her hurry to keep up with her husband and observe him as he moved ahead of her in the crowd exiting the theater, Mrs. Kolnacki did not adequately watch the ground in front of her, to the point of not observing the curb, let alone the asphalt ramp. That disregard of a hazard that readily could have been avoided by the reasonable exercise of caution can properly be considered in the apportionment of liability (Hodges v City of New York, 195 AD2d 269, 270 [1993]). Had Claimant watched for the parking lot curb, or just watched where she was going, she easily could have observed and avoided the trap presented by the sharp splay, and for that reason her culpability greatly outweighs that of Defendant as a cause of her fall.

By reason of the above the Court will apportion 25% liability on the part of the State, and 75% to Claimant. A trial on issues of damages will be scheduled by the Court.

Lastly, at the commencement of trial Defendant made an oral motion to dismiss the Claim for lack of subject matter jurisdiction, based upon alleged pleading deficiencies. That application failed to comply with the notice and service provisions of CPLR 2214, required to now afford the Court jurisdiction to entertain dismissal, and invalidates the motion altogether (Burstin v Public Serv. Mut. Ins. Co., 98 AD2d 928, 929 [1983]). Denial will be without prejudice to the filing and service of a motion that conforms with CPLR 2214 (see Hibbard v Shaad, 99 AD2d 670 [1984]). The Court would add that even if Defendant's failure to properly file and serve its dismissal motion was not jurisdictional, the Court would deny relief in favor of a formal application as a matter of discretion, to prevent prejudice to Claimant, and allow for a full presentation of each party's position.


July 12, 2004
Buffalo, New York

Judge of the Court of Claims