New York State Court of Claims

New York State Court of Claims

HARRINGTON v. STATE OF NEW YORK, #2004-034-010, Claim No. 99996


Claimant failed to establish that the bleacher aisle where she fell and was injured constitute a dangerous condition that was the proximate cause of her fall. Even if the Court were to consider the bleacher aisle a dangerous condition, the sole cause of the incident was Claimant's lapse in the exercise of reasonable care as she exited the arena. The Claim is dismissed

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:
Defendant's attorney:
New York State Attorney General
BY: Paul Volcy, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 5, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The Claim herein was filed on March 17, 1999 to recover for injuries allegedly sustained by Mary Harrington[1] in a fall in the bleacher area of an ice arena at the State University of New York-Fredonia on March 20, 1997. By agreement of the parties liability issues became bifurcated from damage questions, and proceeded to trial before me on the 15th, 16th, and 31st days of March, and the 6th day of April 2004. In the course of the trial Claimant testified, and also called three witnesses on her behalf: Daniel Kubera, an employee of Defendant; Robert F. Stuart, Jr., who offered expert testimony regarding property maintenance issues; and Sharon Harrington, her daughter-in-law, who testified in rebuttal. Defendant, in turn, produced four witnesses: Michael Karlson and William F. Vacanti, each employed by Defendant; Gerald Dziduch, a spectator who attended the event that evening; and Lawrence M. Levine, a professional engineer who offered expert testimony regarding bleacher construction and the fall-related injuries. Nine exhibits were introduced into evidence during the trial. Following the close of proof each party also filed post-trial memoranda, and the matter became fully submitted on May 7, 2004. On review of all of the above I must now deny and dismiss the Claim.

I hereby find as follows. Claimant is a lifelong resident of the Dunkirk-Fredonia area. Now 73 years old, Mrs. Harrington would have been age 67 at the time of the incident. She has been married for 51 years to James Harrington, also a claimant herein. Together they are the parents of three children, and have six grandchildren. In and about 1997 one of those grandchildren, Andrew Harrington, participated in a youth hockey program, and at times Claimant would attend his hockey games. Some games would be played at a hockey rink located at the State University of New York-Fredonia. It was at one such game on March 20, 1997 that Claimant fell down a series of bleacher seats, suffering serious injuries that extended to multiple fractures to her right leg.

The ice arena where the incident occurred is located at Steele Hall, on the university campus. It appears that the building was initially constructed in 1983. At that time a hockey rink, consisting of a rectangular ice surface surrounded by a short wall topped with sections of glass, was installed on the first floor. The ice surface was 195 feet long and 85 feet wide, and positioned with one of its lengths abutting the west wall of the building. Along the east side of the ice rink Defendant installed bleacher-type seating in 1984. Those bleacher units, three in total, were patented proprietary items, manufactured by Interkal, Inc. Each unit consisted of a series of wooden boards affixed to a telescoping aluminum frame, which allowed the bleachers to be extended and retracted. When extended, a narrow walkway at the front of the first row of each section of seats would directly abut the side walls of the rink's ice surface, several feet above the first floor itself. The three units adjoined one another, allowing for lateral movement along the combined length of the three sections, with barrier railings installed at each end. Access to the floor outside the rink could be gained by means of a short section of steps positioned at the north end of the first-row walkway adjoining the ice rink's perimeter wall. A second set of steps may also have been positioned at the south end of that same bleacher walkway. However, such access served little purpose, since there was no public entrance to the arena in the first floor area adjoining the rink. Instead, entry to the bleacher area was designed to occur through a second floor lobby, which overlooked the ice surface. Patrons would reach the second floor by using one of the two stairways or an elevator located within the building, or a walkway from an adjoining field house. A railing barrier ran across the edge of the balcony, although gates were constructed to allow for passage to the bleachers. Those gates adjoined the several aisles that were built into the bleachers, and would be opened when the seating units were extended. Altogether the bleachers allowed for nine rows of seating along the length of the ice surface, with additional viewing provided on the second floor balcony itself, immediately behind the railing.

Prior to the evening in question Mrs. Harrington had attended hockey games at Steele Hall on approximately 20 occasions, over a period of approximately four years. As a matter of general practice when she attended games she would watch from the balcony itself, either standing or seated in a chair behind the railing. From her testimony it is clear that Claimant did not feel comfortable sitting in the bleachers, primarily due to the absence of railings to assist her in stepping down toward the ice surface. As a result she only sat in that area of the arena four or five times prior to the incident, and always in the top row. On those occasions she would generally leave early, in order to avoid the crowd that would exit immediately after a game. Despite her concerns, Mrs. Harrington never experienced difficulty in her prior use of the bleachers, and specifically did not experience any problems in distinguishing between bleacher footboards and the aisle areas. She also agreed that at times she may have had to pass other seated spectators in moving from the bleachers to the aisle and exit.

On March 20, 1997, Claimant traveled to Steele Hall to attend her grandson's game. She arrived at approximately 8:00 p.m., when the game was scheduled to begin, with a plan to remain for the entire event. Due to the number of people attending the game she could not stand or sit behind the balcony railing, as she preferred, and she instead sat in the top row of bleachers, near the northernmost of the several aisles that led down toward the ice. Her daughter-in-law, Sharon Harrington, sat next to her, closer to the aisle area that led up to the balcony. Claimant remained seated at that location throughout the game, which ended at approximately 9:00 p.m.

When the hockey game finished Mrs. Harrington stayed at her seat to allow others, including her daughter-in-law, to leave ahead of her. At that point she stood up, turned, and began to walk down the empty row toward the single aisle step that would lead to the gate and balcony area. In so doing Mrs. Harrington took short deliberate steps along the footboard that served as the walkway or "row," variously glancing forward and downward as she walked. When she reached the aisle area she began to elevate her left foot, then felt the front or toe area become caught under the edge of the riser step, which extended somewhat over the footboard on which she had been walking. Claimant lost her balance, and proceeded to roll down between five and seven rows of bleachers. She came to rest on her back, with her head positioned on one of the aisle boards, and her torso extended along a length of footboard between two sets of seats. In the course of her fall Claimant lost consciousness. Her next memory was that a number of patrons and employees of Defendant had surrounded her. Claimant felt dazed, and could not remember any conversations she might have had at that point. She attempted to move, and realized that she had sustained an injury to her right leg. University personnel summoned the Fredonia Rescue Squad, which transported her to Brooks Memorial Hospital. While damage issues have been bifurcated, Mrs. Harrington briefly reported that she was treated as an in-patient for multiple fractures to her right patella, tibia and fibula. I also credit her later testimony that she sustained significant bruising in her fall.

I note that differences exist between the testimony of Claimant and some other witnesses with respect to where she had been seated during the game. Similarly, Defendant has cited inconsistencies within Claimant's testimony, as well as opinion evidence from its expert, Lawrence M. Levine, in urging that the fall could not have occurred as described. Based upon my assessment of Mrs. Harrington's demeanor on the stand I do not believe that she has been deliberately untruthful in any aspect of her testimony, and I do not have the sense that any of the witnesses were less than forthright in their recollections. I am mindful that Claimant suffered serious injuries and a loss of consciousness as a result of her fall, which concededly impaired her recollection of matters that immediately followed the accident. I also have considered that for other witnesses the passage of time and the lack of significance of pre-accident events have affected their perceptions. Critically, I do not believe that the variations in testimony herein impact on the determination of liability herein. Although Mrs. Harrington recalled sitting in the north set of bleachers, it is possible that she sat at the north end of the center section of bleachers. While I make no finding in that regard, I do find that Claimant sat in a top row of bleachers that evening, next to her daughter-in-law, who sat closer to the aisle. Moreover, and regardless of whether Mrs. Harrington moved to the left or to the right in attempting to exit the stands, I find that as she did she caught the front of her left foot on the bottom of the open riser of the aisle, then tripped and tumbled down several rows before stopping. As a result, her torso became positioned along the length of the footboard between approximately the third and fourth level of seating, and her head rested on the adjoining aisle area, although it is unclear whether her body was positioned to the left or right of the aisle.

I reject Defendant's assertion that Claimant could not have tumbled or rolled down several rows of seating, finding that Mr. Levine was mistaken in one basis for his opinion to that effect, i.e., that such a fall would have resulted in substantial bruising that he did not believe Claimant had sustained. In her rebuttal testimony Claimant described the significant bruising she had experienced in the incident, in addition to her multiple fractures. I also reject Defendant's post-trial assertion that Mrs. Harrington's delay in more fully describing her injuries impacts on her credibility, since the absence of earlier testimony was in keeping with the parties' agreement to bifurcate liability issues from damage questions. Although the clarification of the question of bruising is in itself sufficient to reject Mr. Levine's weak assertion that Claimant could not have fallen as she described, his opinion also is refuted by the eyewitness testimony of Sharon Harrington. Claimant's daughter-in-law heard a thumping noise after she stepped up from the top row of seats to the balcony, and turned around to observe her rolling down several lower rows of bleachers before coming to a stop. I credit Sharon Harrington's observations over the speculation of Defendant's expert on the issue.

As with all landowners the State owes a duty of care to those who make use of its facilities, namely to exercise reasonable care to maintain its premises in a safe condition in view of the 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 its premises (see 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]).

In determining whether the State should be liable for the tripping incident I will first address the assertion of Claimant's expert, Robert F. Stuart, Jr., that under the 1984 New York State Uniform Fire Prevention & Building Code (former 9 NYCRR part 600, et seq.) each bleacher aisle must be deemed a stairway, thereby necessitating several forms of construction compliance that were not followed by Defendant in the purchase and installation of the prefabricated bleacher units. To the extent established, a violation of such a regulation would constitute some evidence of negligence on the part of the State (see Hand v Gilbank, 300 AD2d 1067, 1068 [2002]). On review I do not believe that the bleacher aisles can properly be deemed stairways. Under former 9 NYCRR 606.3 (197) a stairway was defined as "[o]ne or more flights of stairs and the necessary landings and platforms connected therewith to form a continuous passage from one floor to another." Here, while it is technically possible to reach the first floor rink level from the second floor balcony, the route of passage is hardly continuous. The aisles themselves do not lead to the floor. They stop at the first row of footboards, which traverse the entire length of the three bleacher units several feet above the first floor. It is only from one or both ends of that walkway that further steps would lead down to the floor area adjoining the ice. That walkway cannot be deemed a landing or platform in that it is not part of the purported staircase structure itself. Moreover, in his testimony William Vacanti, the facility coordinator for Steele Hall, made clear that the bleachers are not used as a means of travel between the first and second floors, and that no public entrance to the arena exists at the ground level of that building. For those reasons I reject the assertions that pursuant to former 9 NYCRR § § 765.3 (b) (5), 765.4 (a) (9), (10), (11) and (b) (1), which regulate stairways, bleacher aisles should have been constructed with handrails, solid risers, and three-riser minimums.

During the trial Defendant's engineering expert opined that the arena's seating would fall within the application of 12 NYCRR 36-3.7, which regulates bleachers. Those provisions do not require that bleacher units be constructed with solid risers, three-step minimum and hand rails. In response, Claimant has disputed that section would apply to a State university building. It is Claimant's position that the cited bleacher regulations would only govern if the provisions of 12 NYCRR 36-3.6, which regulate assembly halls and other indoor places of public assembly, are first found to apply. Mrs. Harrington has asserted that Steele Hall cannot be deemed a "place of public assembly" as defined in Labor Law § 2 (12), and instead must be deemed a "[p]ublic building" under Labor Law § 2 (13), such that part 36-3.6, and therefore part 36-3.7, would not control seating at the hockey arena. I disagree, if for no other reason than that at the time of the incident the premises were being used for a non-university event (see Butler v State of New York, 24 AD2d 925, 926 [1965], appeal after remand 27 AD2d 897 [1967] [liability of State for facility used for civic or social events determined in accordance with the same rules of law as apply to private landowner, "especially where the situation is similar to that of the owner or operator of a place of public assembly"]). Claimant also has urged that Defendant failed to provide proof that the bleachers in question were "approved," as contemplated under section 36-3.7 (g) (5), which, pursuant to section 36-1.4 (a) (1), anticipates action by the Industrial Board of Appeals, rather than the engineer or architect in charge. While I agree that the process of approval of bleachers contemplates board action, Claimant has failed to demonstrate that the bleachers were not approved, and therefore, in violation of any regulation. More generally, I note that even if the bleacher regulations did not apply, I would still adhere to my earlier finding that the aisle where Claimant fell is not a "stairway" under former 9 NYCRR 606.3 (197).

Similarly, I reject the assertions of Claimant and Mr. Stuart that the bleachers otherwise presented a dangerous condition for those exiting the arena. Mrs. Harrington and her expert both contend that the use of a dark non-skid tape along the length of the top surface of the aisles or "treads" made that elevated area indistinguishable from the adjoining footboard rows, which were painted a dark brown color. It was Mr. Stuart's position that the edges of those risers should have been painted or taped with a contrasting color to allow for a clearer distinction between the footboards and aisle areas. He also believed it was more important to mark a single open riser rather than the more conventional multi-step systems because people have come to anticipate that stairs would have three or more risers. While the failure to sufficiently demarcate bleacher risers can potentially support a finding of liability against a landowner notwithstanding the absence of any building or fire code violations (see Elmlinger v Board of Educ. of Town of Grand Is., 132 AD2d 923 [1987]), from my review of the evidence, including the eight photographs and color photocopy of the accident site, I find that the risers were quite distinctive and readily apparent. Whereas the footboards are quite dark, the leading edges of the risers are a far lighter natural wood tone. The non-skid tape on the top of the aisle boards also is very dark, but positioned intermittently and lengthwise along the natural wood surface of the bleachers. As a result a distinctive striping pattern is created up and down the entire aisle area. In addition, at the north edge of each level of seating, adjoining the very point where Mrs. Harrington believes she tripped, large letters "H" and "J" have been painted onto the dark non-skid tape. In my view the stairway pattern and riser sections were easily observable by patrons using the facility. I also note that notwithstanding her general concern about the use of bleachers on earlier occasions, Claimant had not previously experienced difficulty with the visual continuity of the footboard and aisle areas. Lastly, because the edges of the aisle risers were readily apparent, I reject Mr. Stuart's assertion that the bleachers deviated from National Fire Protection Life Safety Code provisions for contrasting marking stripes, or that an unsafe condition resulted therefrom.

Even assuming that the bleacher aisles presented a dangerous condition, that defect was not a contributing factor in the incident. In my view the sole cause of the incident was a brief lapse in the exercise of care on the part of the Claimant herself. I believe Mrs. Harrington's statement that she waited for others to leave before she started to exit the bleacher area, and that she took short steps, repeatedly looking forward and down as she did. I further accept that she wore sneakers that night, such that her footing was stable. However, a distraction occurred just as Claimant was about to step up onto the top of the riser board, causing her not to look where she was stepping at that brief point. Mrs. Harrington testified that in and about the time of her fall she remembered hearing someone call out "Mary." Although she was unable to state at trial whether that occurred before or after the incident, the weight of the proof supports that she heard her name being called just prior to her fall. Her memory of events that immediately followed her fall was hazy, and she had no recollection of any conversations she might have had when she first regained consciousness. I also note that Mr. Vacanti testified that when he first arrived at the scene following the incident, and asked what had happened, Claimant herself responded that someone had called her name, and that she looked around, then fell. Crediting that proof I conclude that the sole contributing factor to this unfortunate event was Claimant's own momentary lapse of attention as she understandably reacted to someone calling out her name.

Based upon the above I must now deny and dismiss the Claim, despite having found that Mrs. Harrington was candid and forthright in providing her best recollection of the events of that tragic evening.


August 5, 2004
Buffalo, New York

Judge of the Court of Claims

[1] As used herein, "Claimant" will refer to Mary Harrington unless otherwise noted. The claim of her husband, James Harrington, is derivative in nature.