New York State Court of Claims

New York State Court of Claims

KIPRAIS v. THE STATE OF NEW YORK, #2005-010-068, Claim No. 107266


Synopsis



Case Information

UID:
2005-010-068
Claimant(s):
ARLENE KIPRAIS AND WILLIAM KIPRAIS
Claimant short name:
KIPRAIS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107266
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
ROBERT O. CORINI, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Rachel Zaffrann, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 6, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claim for damages for injuries sustained as a result of a fall at SUNY Purchase was dismissed. Claimant failed to establish that negligence of defendant was a proximate cause of the fall.

Claimant Arlene Kiprais seeks damages for injuries she sustained on November 23, 2002 at approximately 10:15 p.m., when she fell while descending an exterior staircase at the State University of New York at Purchase (SUNY Purchase). The claim of William Kiprais, claimant's husband, is derivative. Claimants contend that inadequate lighting was a proximate cause of Mrs. Kiprais' fall as she was unable to discern the landing from the steps and lost her balance. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Mrs. Kiprais testified that on the night of November 23, 2002, she and her husband went to the 8:00 p.m. performance of "Forbidden Broadway" at the SUNY Purchase Performance Arts Center (PAC). The PAC is a two-story building with a concert hall on the first floor and several theaters on the second level. "Forbidden Broadway" was performed in the Pepsico Theater on the second floor of the PAC. Claimant had been to the PAC several times and was generally familiar with the layout of the building.

After the show, claimants exited the theater and ushers, wearing SUNY Purchase insignia, directed the patrons through the upper lobby toward an exit that opened onto a pedestrian mall. Claimants walked with the other patrons to a stairway, approximately eleven feet wide, which, they later learned, led to a parking lot. Mrs. Kiprais was not familiar with this particular stairway because, on all of the prior occasions, she had entered and exited the PAC from the main entrance into the first floor lobby.

When Mrs. Kiprais reached the top of the stairs, she held on to the handrail on her right side and then slowly descended. Mr. Kiprais testified that he was to the left of his wife and was not holding on to any handrail. Mrs. Kiprais testified that she could see only partially down the stairs because of the number of people. As she proceeded, Mrs. Kiprais kept looking down at the steps and the people in front of her. The stairway had a series of landings. Mrs. Kiprais described the approach to the third landing as dark and crowded. Mr. Kiprais testified that, as they proceeded down the stairway,[1] it was getting darker making it impossible to differentiate the steps from the landings. As Mrs. Kiprais placed her right foot on the landing, she lost her balance and fell. She testified that she thought there was another step. She stated there was hardly any lighting and it became progressively darker as she went down the stairs. Mr. Kiprais described the area near the landing as very dark causing someone to feel their way rather than see. As Mrs. Kiprais fell, her right hand pulled off the rail.

Mrs. Kiprais was wearing rubber soled, comfortable, flat, tie shoes. Although she was on numerous medications, she maintained that she had no side effects from them and felt fine that evening. Mr. Kiprais assisted his wife and transported her to the emergency room at Sound Shore Hospital.

On November 24, 2002, Mr. Kiprais reported the accident to the SUNY Purchase police[2] and later returned to the scene to take photographs (Exs. 32-38, 40, 50). He noted that the nearest light to the stairway was a post fixture with five stanchions (Ex. 65).

Nelson Castilla testified that in November 2002, he was employed as a police officer at SUNY Purchase. On November 29, 2002, he prepared an incident report based upon information furnished by Mr. Kiprais (Ex. A).[3] Castilla, who is no longer working at SUNY Purchase, had a vague independent recollection of the event and did not remember the physical layout of the area.

David Phillips testified that he has been employed at SUNY Purchase for 25 years, initially as an electrician and then as Electrical Supervisor for Facilities Management. In 2002, he supervised three electricians and two helpers. Phillips was familiar with the PAC and both indoor and outdoor lighting at SUNY Purchase. He explained that the mall circles the upper level of the PAC and that there are four similar staircases leading down from the mall. Phillips testified that each stairway had eight railings. Originally, there were lights under the rails. The left railing had two 30 watt bulbs and the right had two 75 watt bulbs. There were no railings on the landings. After 1986, maintenance and repair were discontinued on these lights because better and brighter lights were installed on poles. The new pole fixtures had five 250 watt bulbs. In the vicinity of the accident, three 250 watt bulbs were directed toward the stairway. Additionally, the stairway was further illuminated by fixtures along the street, approximately 30 feet from the bottom of the stairs.

Inspector Cindy Markus Jones testified that she has been employed by the SUNY Purchase Police Department since 1988 and has been an Inspector since 2001. She described the four stairways leading from the mall to the ground below by compass directions. However, she could not describe any differences between the Northwest stairway and the Southwest stairway, e.g. she did not know their slopes, composition or individual wear and tear.

The State has a duty to use reasonable care in maintaining the property in a reasonably safe condition to prevent the occurrence of foreseeable injuries (see Basso v Miller, 40 NY2d 233, 241). "Particularly, ‘[a] landowner whose property is open to the public is charged with the duty of providing safe means of ingress and egress, which includes a duty to provide adequate lighting' " (Tarrazi v 2025 Richmond Ave. Assoc., 296 AD2d 542, citing Shirman v New York City Tr. Auth., 264 AD2d 832, 833). While the State has a duty to warn the public of any latent dangers that are not readily apparent (see Walter v State of New York, 185 AD2d 536), claimant is bound to see that which could have been observed by a proper use of her senses (see Coote v Niagara Mohawk Power Corp., 234 AD2d 907).
"Negligence cannot be presumed from the mere happening of an accident. It is incumbent upon the part of claimant to show affirmatively by competent evidence that the injury complained of was caused by reason of some breach of duty by the State. Negligence must be proven"
(Mochen v State of New York, 57 AD2d 719, 720). Claimant must establish: the existence of a foreseeable dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that damages were sustained (see Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955). A landowner will not be held liable for conditions inherent in the nature of the land that could reasonably be anticipated by its users (see Nardi v Crowley Mar. Assoc., 292 AD2d 577, 577-78).

Claimants argue that inadequate lighting made it difficult or impossible for Mrs. Kiprais to discern the edge of the steps from the landing and that defendant created or had constructive notice of such condition by virtue of the abandonment of the lighting under the handrails. Claimants' attorney sought to introduce into evidence an accident that occurred on August 10, 2000 at 1:41 p.m. on the Southeast stairway. Claimants argue this was a prior similar accident because in that case another elderly woman had complained of difficulty in discerning the edge of the steps from the landing and she too fell while descending. This Court notes that the August 10th accident occurred on a different stairway in the early afternoon and not at night. Even assuming that all four staircases in that area were identical, as designed, there was only one potentially prior similar accident in the five years prior to Mrs. Kiprais' fall. The Court finds this one prior accident to be insufficient in establishing that the State had constructive notice of a dangerous condition (see Zeigler v Wolfert's Roost Country Club, 291 AD2d 609).

Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimants have failed to establish that defendant was negligent and that such alleged negligence was a proximate cause in Mrs. Kiprais' fall. Rather, it appears that Mrs. Kiprais' fall was not due in any part to any negligence of defendant.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 107266.


January 6, 2006
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] This stairway was later identified to Mr. Kiprais as the Northwest stairway leading to the W-2 parking lot.
[2] No one else fell that evening.
[3] The report refers to a different staircase. Castilla maintained that he labeled the staircase based upon Kiprais' account. The Court finds that Castilla's testimony was not convincing and that the accident had in fact occurred on the Northwest stairway leading to the W-2 parking lot.