New York State Court of Claims

New York State Court of Claims

BROWN v. STATE OF NEW YORK, #2005-018-488, Claim No. 104477


The credible evidence establishes that there were ongoing problems with the concrete in the area in question. However, Claimant also had a duty to see that, which by the proper use of her senses, she should have seen. Liability is apportioned 40% to the State and 60% to the Claimant.

Case Information

SCOTT BROWN Claimant had married between the time of her fall and the date of trial; however, during the trial she was addressed as Ms. Brown.
Claimant short name:
Footnote (claimant name) :
Claimant had married between the time of her fall and the date of trial; however, during the trial she was addressed as Ms. Brown.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
NEWMAN, O'MALLEY & EPSTEIN, P.C.By: Lawrence Epstein, Esquire
Defendant's attorney:
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 13, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages from the State for injuries she suffered when she fell while a visitor at Marcy Correctional Facility (hereinafter MCF), on April 29, 2001. The trial was bifurcated and this decision relates solely to liability.

Claimant testified that on April 29, 2001, she drove from her home in New York City to MCF to visit her son who was incarcerated there. She had never been to MCF before. On that day, she arrived between 11:30 a.m. and 12:30 p.m., hoping to spend as much time with her son as possible. Claimant recalled visiting hours were from noon to 3:00 p.m.

Upon her arrival, her first stop was at the reception center where she left her personal belongings. At some point she showed her identification, and a package of food, which she had brought for her son, was inspected and taken from her. Claimant was unsure if this occurred at the Reception Center or in the Administration Building.

When she left the reception area, she was directed to the Administration Building. From there, she was sent to an outside area surrounded by wire fencing and called the sally port. The sally port is a square shaped area surrounded by chainlink and razor wire fencing with four gates, two on each side and at opposite ends of the enclosed area. The gates on the left side of the sally port are considered the pedestrian walkway used by the employees of the facility. The two gates on the right side of the sally port are referred to as the visitors' walkway. In the middle of the sally port, between the right and left side gates, was chainlink fencing dividing the sally port between the pedestrian and visitors' walkways.

Claimant went through the first gate on the visitors' side and was looking ahead to the next gate, when the big toe of her left foot hit part of the sidewalk and she was propelled forward. In an effort to stop her fall, she grabbed the fence near the second gate but saw screws and objects protruding toward her so she could not hold on. As a result, she fell to the ground. She heard someone ask if she was okay and told them she was hurt. Claimant stayed on the ground for approximately five minutes until a man and woman came into the area and Claimant stood up herself. The man was wearing a uniform, the woman was a nurse at the facility. They helped Claimant back to the lobby of the Administration Building.

On her way back to the Administration Building, Claimant testified that she saw that she had tripped on a slab of the sidewalk which she estimated to be 1 to 1½ inches higher than the slab next to it. At the time, Claimant was wearing sandals which had half-inch to one-inch soles with a strap across the toes and a strap around the back, which she described at her deposition as "flats."

Claimant called Patricia Maggi Perrotta, the nurse who assisted Claimant at MCF, as a witness. Ms. Perrotta recalled first seeing Claimant in the Administration Building lobby and believes that Lt. Shea was there also. She identified the log note[1]
she made reflecting the incident, which stated Claimant tripped on the sidewalk and fell near a gate, but the witness could not recall how she got that information. Ms. Perrotta advised Claimant to obtain treatment at an outside hospital, but Claimant refused because she wanted to visit with her son. Claimant sought treatment after she visited with her son.
Correction Officer (hereinafter C.O.) Chad Boulrice was working in the arsenal on April 29, 2001. His job was to unlock gates for visitors and employees going through the sally ports. He testified that he did not see Claimant trip - just that "she was there, then she wasn't."[2]
He stood up and could then see her on the ground so he used a speaker to ask Claimant if she was all right. She said she was not, so C.O. Boulrice called his supervisor, Lt. Shea, Sgt. Hawes, and a nurse. He wrote a memo[3] to his supervisor regarding the incident.
C.O. Boulrice was asked about a camera which is focused on the sally port area. Although it was on that day, it was not set to record activities. He also testified that the gates in the sally port were scheduled to be replaced, but he did not recall the condition of the gates or the concrete.

Lt. Shea also testified. He did not complete an unusual incident report regarding this incident because, despite the fact that he knew of no other visitors falling, Lt. Shea said he did not consider the situation an unusual incident. According to Lt. Shea, he noted Claimant's fall in the watch commander's logbook[4]
but made no other reports. Lt. Shea insisted Claimant was not injured. He testified he investigated the accident the same day as he made his daily rounds; he checked the sidewalk for ice, snow, debris, or raised concrete and found nothing out of the ordinary. He could not remember if there was still snow on the ground. Lt. Shea never mentioned his "investigation" to anyone until he was deposed on June 27, 2002, nor did he include anything about an investigation in the log book.
Lt. Shea testified that Claimant denied being injured. Despite the fact that the nurse, Ms. Perrotta, directed him to call an ambulance and that he saw some blood on Claimant's hand, he maintained his position that Claimant was not hurt. He testified Claimant refused to get outside medical help; however, Claimant testified she did not leave at that time because she wanted to see her son. Lt. Shea testified that if Claimant had said she was injured, he would not have allowed her to visit her son. He later admitted that he knew Claimant told him she was not injured so she could see her son. The Court finds Lt. Shea was not a credible witness. He appeared intent to find nothing wrong at the facility and ignored or disregarded any injury to Claimant.

Sgt. Richard Hawes was a relief officer on the day Claimant fell. He was notified of her accident by C. O. Boulrice. He spoke to Claimant after she fell but never asked her what caused her to fall. He did note the incident on her visitor's pass.[5]
Sgt. Hawes said he walked in the general area of the sally ports on his daily rounds and did not notice anything unusual, although during his deposition, he testified he had no recollection of the condition of the concrete that day. He did not specifically go and inspect the area where Claimant fell. Sgt. Hawes' memory had to be refreshed many times with his deposition.
Claimant called witnesses regarding the construction that took place at Marcy after Claimant's accident. Ronald Rakowski testified he was an agent for the Office of General Services (hereinafter OGS) on the project although he is employed by LeChase Construction. He was the engineer-in-charge, having oversight responsibilities. On January 12, 2001, the project to replace the sally port gates, the concrete sidewalks running between the gates, and to repair the surrounding fence was awarded to the L.C. Whitford Company.[6]
Before any work began, Mr. Rakowski and others involved in the construction had a meeting on January 31, 2001, to discuss the extent of the work required among other things. At the meeting, Todd Smith represented Whitford, as project manager; Chuck Haddad, the locksmith at MCF; and Fred Kopyt represented the facility. Additionally, Robert Hourigan, the Regional Engineer from OGS, Joseph Trinka, the Area Construction Supervisor, and Andrew Jarmak, the Area Mechanical Supervisor were also present. Mr. Rakowski took minutes[7] during the meeting and later distributed them to the attendees. The minutes reflect that during this preconstruction meeting, the timeliness of the project was discussed as well as the procedural specifics and the condition of the gates. The minutes also reflect that the gates were in poor condition and the locking mechanism did not always work.
On March 8, 2001, the construction managers had another meeting which included inspecting the site. Minutes[8]
were taken and distributed. The minutes from this meeting reflect that Fred Kopyt and Chuck Haddad said that frost heave of the walkway caused some of the damage to the fence in the sally port area. Frost heave results from the freezing and thawing of water in the soil resulting in the expanding and contracting of the ground or ground covering.
Mr. Rakowski testified that under the original contract all of the concrete in the sally port was replaced, and there was a change order in which additional portions of the concrete walk were replaced. According to his records, the first day of construction on the contract was April 30, 2001, the day after Claimant's visit.

On cross-examination, Mr. Rakowski described the fencing and its components that outlined the walkway between the Administrative Building and the Visitors' Building. He said that not all of the fencing was replaced during the project, but the gates and some of the hardware for the fencing were replaced. Mr. Rakowski testified that during the site visit meeting, the existing concrete reached the bottom rail of the fence; there was no clearance. The discussion held at the preconstruction meeting on March 8, 2001, involved raising the bottom rail of the fence higher than the planned 2 inches to prevent future damage caused by frost heave.

A change order, that modified the original contract regarding concrete replacement, required replacement of an additional 5 feet of concrete west of the original area and 30 feet east. Mr. Rakowski said he recommended this change because of surface blemishes on the old sidewalk; it was for aesthetic reasons. He did not recall any frost heave having affected that area of concrete.

Claimant's last witness was Todd Smith who is employed by Triple S Security Systems, a consulting firm for the L.C. Whitford Company. The L.C. Whitford Company contracted with the State to do the work to the sally port area at MCF. Mr. Smith specialized in security systems, bid the job, and then managed the project for L.C. Whitford Company. The project consisted of replacing four "A" gates, three "B" gates, replacement of approximately 60 feet of concrete sidewalk between the gates in the sally port, and adding a catch basin and drain pipe.

Mr. Smith recalled he went to MCF and inspected the subject area during a preconstruction meeting in late February or early March 2001.[9]
During his inspection, Mr. Smith noted that the concrete sidewalk had been damaged by frost heave and the gates and fences were also affected. The heaving had caused the concrete to push up and break the bottom fence rail and he pointed it out to Mr. Rakowski. Mr. Smith testified that the bottom fence rails are usually installed 1 to 2 inches off the ground. Mr. Smith also noted that one of the security gate doors had been cut off a couple of inches because it was hitting the concrete and needed clearance. As a result, a change order was granted to trim the bottom of the fences, move the bottom rail up, and replace the broken fittings. He also remembers the change order extended the area of concrete to be replaced.
When asked about the additional concrete work, Mr. Smith stated that the contract did not call for replacing the whole sidewalk. The change order included areas of the sidewalk that were not under an overhanging roof. Mr. Smith testified the whole area was wavy from frost heave.

According to Mr. Smith, the old concrete expansion joint running parallel to the unrepaired sidewalk had expanded. When he examined the sidewalk he saw the effects of frost heave.
Part of the contract also involved adding a catch basin and 10 inch drain pipe to the existing storm sewer to address the drainage problems in the sally port. Mr. Smith said it was needed because the existing grade funneled water to an area with no catch basin. They added the catch basin to eliminate the pooling of water in the sally port area and Mr. Smith believed it was this problem that contributed to the frost heave.

On cross-examination, Mr. Smith acknowledged that at the time of the preconstruction meeting when he inspected the area, there was no frost heave, although there was evidence of frost heave directly underneath the fence, the bottom rail, and the rail end. However, he indicated that the damage to the bottom of the chainlink fencing, although not the end rails, could have also been caused by snow removal. He also agreed that he could not specifically recall frost heave at the location where Claimant fell. Mr. Smith acknowledged that frost heave elevates ground or concrete and then allows it to go back down. Since he was not at the facility between the preconstruction meeting in March and the commencement of work, the day after Claimant's fall, he could not be sure what the sidewalk looked like on the day of Claimant's accident.

Also, on cross-examination it was brought out that Mr. Smith and Mr. Rakowski had significant disagreements throughout the construction job at MCF. Despite this, the Court finds Mr. Smith credible. He answered every question completely and to the best of his ability.

The State called Frederick Kopyt, the Plant Superintendent at MCF for the past ten years. He oversees the operation of the Maintenance Department there. He works Monday through Friday, from 7:30 a.m. to 3:30 p.m., and conducts periodic inspections designed to find areas in need of repair on an ongoing basis. He also inspects the grounds as he enters the facility or travels through it. Mr. Kopyt is the facility liaison for the physical plant with Albany. He is responsible for initiating projects to upgrade the facility or equipment, and he requested the replacement of the gates for this project. He testified the gates were identified for replacement because they were malfunctioning and also because the Department of Correctional Services (DOCS) had made reclassifications and upgrades to the gates, the gate procedures and the interlocking devices so the gates were to be upgraded to the new standards.

Mr. Kopyt explained that Exhibit 3 showed the old security gates leading from the Administration Building into the facility. In Exhibit 3, the gate and walkway on the left allows people to enter the facility proper, and every employee uses it for ingress and egress. This is referred to as the pedestrian side. The gate and walkway on the right leads only to the visitors' room. The area between the gates on both sides is called the sally port.

Mr. Kopyt testified he worked on Friday, April 27, 2001, but was not at the facility when Claimant was injured on April 29, 2001, because it was a Sunday. He testified that he goes through the sally port four to five times per day and did so the Friday before the accident. He also traveled through the visitors' side of the sally port as well that day, but does not remember making any specific observations of the sidewalk on either side. He then said he observed the sidewalk on the visitors' side of the sally port every morning and there was nothing wrong with the concrete. He denied any raising of the concrete in that area. He testified that the reason the concrete was replaced as part of the contract was because of the need to break it up to replace the gates and install new wiring.

When asked what caused the gates to shift, Mr. Kopyt said it was the frost. He testified that the gates were steel and the frames were not buried deep enough into the ground - only 6 inches, so they would shift during the winter. The new frames were buried 4 feet into the ground.
Mr. Kopyt testified that the catch basin was required because puddling occurred regularly on the back corner on the pedestrian side; there was no relation between the addition of the catch basin and frost heaving of the sidewalk.

Mr. Kopyt said that because some of the fencing in the sally port area was damaged; it was to be repaired as part of the contract. He testified that snowblowers and ice chippers are used to remove snow in the area and this is what caused damage to the bottom of the fence. He disagreed with Mr. Smith's testimony that frost heave caused the fence damage, despite the minutes of the March 8
meeting in which he was credited with saying the damage had been caused by frost heave.
Regarding the additional sidewalk that was replaced pursuant to the change order, Mr. Kopyt said it was done for aesthetic reasons; there was nothing wrong with the concrete. He further disagreed with Mr. Smith that there were puddles on the sidewalk caused by frost heave. Mr. Kopyt and Mr. Smith also disagreed on whether the lines in the sidewalk, as seen on Exhibit 3, were control joints or expansion joints.

Mr. Kopyt was at the preconstruction meeting with Mr. Rakowski and Mr. Smith, among others. He was unaware of whether anyone took notes at the meeting, but he did not take any notes. Mr. Kopyt recalled that a portion of the discussion at the meeting was about the fence, where it meets or gets close to the concrete, and the bottom of the gate. Mr. Kopyt's primary concern was the clearance of the gates. Although the minutes from the meeting of March 8, 2001, reflect Mr. Kopyt and Chuck Haddad attributing the damage to the fencing endcap knuckles, the bottom rail, distorted chainlink fabric, and bent structure bars to frost heaving of the walkway, he denied this at trial. However, he also testified that the malfunctioning of the gate was caused by the frost and the fence damage was caused by frost moving the gateposts or by the snow removal crews.

On cross-examination, Mr. Kopyt acknowledged that minutes of preconstruction meetings get circulated to the attendees. The minutes from the March 8, 2001 meeting, retained by Mr. Rakowski, indicated that any disagreements regarding the accuracy of the minutes were to be sent in writing to Mr. Rakowski. Mr. Kopyt never sent any correspondence to Mr. Rakowski disagreeing with the accuracy of the minutes.

After being told to assume that Mr. Rakowski saw signs of frost heaving of concrete in the visitors' area of the sally port, Mr. Kopyt said Mr. Rakowski and Mr. Smith were both wrong about the concrete. Mr. Kopyt insisted that the fence damage was caused by snow removal procedures completed by inmates; yet, he had no reports of snow removal damage to the fence. Mr. Kopyt testified that only "in theory" are reports to be made when inmates damage property. Exhibit 3, a photograph of the sally port area in January 2001, shows snow was piled against the fence.

In short, the Court finds several of the witnesses employed by the correctional facility lacking credibility. Mr. Kopyt's testimony is inconsistent with the evidence in this matter indicating the damage to the fencing and gate was caused by frost heave. Lt. Shea refused to acknowledge that anything at the facility was wrong or that Claimant suffered any injury on April 29, 2001. This, too, is against the weight of the evidence. Sgt. Hawes had a recollection at trial of the condition of the concrete in the sally port area which he lacked at the time of his deposition.

The Court found Claimant's testimony was credible and consistent.

The State of New York, as a landowner, is subject to the same duty as any other landowner in the State, namely exercising reasonable care under the circumstances to maintain its property in a reasonably safe condition for the safety of persons entering upon its property (
Preston v State of New York, 59 NY2d 997). Yet, the State is not an insurer and has no obligation to guarantee against any injury (Killeen v State of New York, 66 NY2d 850, 851; McMullen v State of New York, 199 AD2d 603, lv denied 83 NY2d 753). To establish the State's liability, it is Claimant's burden to establish by a preponderance of the evidence that a dangerous condition existed, that the State either created the dangerous condition or had actual or constructive notice of it and failed to remedy it within a reasonable period of time, and that the condition proximately caused Claimant's injuries (see Gordon v American Museum of Natural History, 67 NY2d 836; Flaherty v State of New York, 296 NY 342; Dapp v Larson, 240 AD2d 918). In assessing whether a slip and fall as the result of a height differential on a walkway is a dangerous condition, some of the factors that a court is to consider include the injured party's familiarity with the area, the length of time the condition has been present, whether any prior accidents occurred, the nature of the area surrounding the defect, and the lighting of the area at the time of the injury (Julian v Sementelli, 234 AD2d 866; Belmonte v Metropolitan Life Ins. Co., 304 AD2d 471; Santiago v United Artists Communications, 263 AD2d 407). In Trincere v County of Suffolk, 90 NY2d 976, the Court of Appeals indicated that the "width, depth, elevation, irregularity and appearance of the defect along with the ‘time place and circumstance' of the injury" were to be considered (id. at 978, quoting Caldwell v Village of Is. Park, 304 NY 268, 274; Lamarre v Rensselaer County Plaza Assoc., 303 AD2d 914). In short, whether the condition is dangerous " ‘depends on the peculiar facts and circumstances of each case' and is generally a question of fact" (Trincere, 90 NY2d at 977, quoting Guerrieri v Summa, 193 AD2d 647). Only if the "facts and circumstances" indicate that the condition "possessed the characteristics of a trap or a snare" or otherwise posed an unreasonable risk of harm will liability be imposed (Julian, 234 AD2d at 866, 868; Maloid v New York State Elec. and Gas Corp., 257 AD2d 712; Trionfero v Vanderhorn, 6 AD3d 903).
Based upon the credible evidence presented at trial, the Court finds, after consideration of all of the facts and circumstances, that the raised concrete slab of the visitors' walkway in the sally port was a dangerous condition. Claimant credibly testified that she stubbed her toe and fell as she walked toward the second gate in the sally port. As she fell, she was propelled forward into a fence with protrusions, precluding her effort to save herself from tumbling to the concrete. She looked after she fell and noticed the concrete walkway slabs had a height differential which caused her to fall. No pictures in evidence clearly show the sally port area at or around the time of Claimant's fall. Exhibit 3 shows the general area outside of the sally port in January but Claimant testified that the condition of the concrete in the sally port was worse. The day after she fell, work began at the facility which included replacement of all the concrete in the sally port area. The testimony of the State employees in relation to the condition of the concrete prior to the repair work was not cogent. The Court finds highly suspect the fact that Lt. Shea investigated the accident and the area where Claimant fell on that day, yet made no incident report, took no pictures and, until his deposition testimony, gave no indication that he had investigated the incident. His denial of anything out of the ordinary with the concrete walkway was less than convincing. Nor was the reasoning for replacement of all of the concrete in the sally port area proclaimed by Mr. Kopyt persuasive, or his adamant denial of any problem with the concrete in the sally port area. Mr. Smith testified that there was evidence of frost heave to the concrete between the sally port gates. Claimant unequivocally testified that she tripped on a raised piece of concrete. Given that where Claimant fell was the passageway to the visitors' center where a number of people, likely unfamiliar with the area, anxious to commence their visit would be traversing, such a defect, without warning, constituted a dangerous condition.

Turning to whether the State had notice of the condition, there was no evidence that the State created it, but the Court finds that the State had at least constructive notice of the condition. The credible evidence establishes that there were ongoing problems with the concrete in this area heaving as a result of the improper drainage and resulting frost. Problems had developed over time, although the extent of the heaving problem did change with the weather. All of the concrete in this area was slated for replacement. Employees of the State, who had the responsibility to take note of such conditions, passed through the area on a daily basis and should have taken notice of the potential tripping hazard to visitors unfamiliar with the area.

There can be no doubt that Claimant was injured when she fell as a result of tripping over the raised concrete. Nonetheless, Claimant also had a duty to see that, which by the proper use of her senses, she should have seen (
Avila v Mellen, 131 AD2d 408). It was the middle of the day when Claimant was visiting and the raised concrete was readily apparent for observation had Claimant been looking where she was going. As a result, Claimant bears a substantial amount of responsibility for her fall and resultant injuries.
Accordingly, based upon the foregoing, liability shall be apportioned 40% to the State and 60% to the Claimant. The Court will set this matter down for trial on the issue of damages.


October 13, 2005
Syracuse, New York

Judge of the Court of Claims

[1]Exhibit 2.
[2]All quotes are from the trial recording unless otherwise specified.
[3]Exhibit 5.
[4]Exhibit 7.
[5]Exhibit 6.
[6]An employee of Whitford was called as a witness to supply the foundation for the project documents to be admitted into evidence as Exhibit 1.
[7]Part of Exhibit 1.
[8]Part of Exhibit 1.
[9]Presumably this was the March 8, 2001 meeting.