This claim for personal injury arises from a fall at Helen Hayes Hospital
(hereinafter HHH or the hospital) on June 15, 2002. The
trial of this claim was bifurcated and this decision deals only with the issue
testified that on June 15, 2002 she was 73 years of age. The accident occurred
at HHH while she was visiting her husband who was recovering from
hip-replacement surgery. When she first arrived at the hospital she met her
husband downstairs in the main lobby where they stayed with her son, Michael,
and her in-laws, Margaret and Angelo DeLuca. Claimant and the DeLucas then
accompanied Mr. Guarasci to his room, Room 3-B-1. Mrs. DeLuca pushed her
brother in a wheelchair and Mr. DeLuca and claimant
Claimant stated that her husband's room was very large with two beds on each
side. As she and Mr. DeLuca walked into the room, two young visitors gave up
their chairs by the window (see Exhibit 1). Claimant walked in the middle of
the room toward the two chairs, which were approximately four feet from her
husband's bed, and within seconds she tripped on something. Claimant stated
that she was focused on the chairs rather than the floor, and was unsure what
caused her to trip.
Claimant testified that a telephone
ran from the wall, under her husband's bed and onto the floor in front of his
bed. She stated that she never walked between her husband's bed and the
adjacent bed or between her husband's bed and the wall. Prior to falling,
claimant did not notice her husband's telephone wire on the floor but knew that
the wire was long from observation during prior visits. She never complained to
anyone at HHH regarding the length of the wire.
On cross-examination, claimant acknowledged that she visited her husband almost
every night, four or five times prior to the accident. Her husband's bed was on
the right side in the far corner from the doorway of the room (see Exhibits 1
and A). There were night stands next to each bed with her husband's to the
right of his bed (see Exhibits 4, B and C).
On redirect examination, claimant testified that after she tripped,
saw the telephone wire wrapped around her feet. Conversely, on re-cross
examination she stated that she herself did not see the wire wrapped around her
ankle and does not know what caused her fall.
Gloria Gonzalez has been a Registered Nurse since 1975 and began working at HHH
in November 1988. On June 15, 2002, she was the nurse in charge of Unit 3-B, a
unit for patients admitted for knee and/or hip replacements. On the date of the
accident, she was in charge of the entire unit and seven to eight
After confirming the configuration of Room 3-B-1, Nurse Gonzalez testified that
the telephone typically sits on the nightstand and that the telephone jack is on
the sidewall between Beds C and D
. She also testified that she did not know the distance from the jack to the
nightstand, but it was less than 14 feet.
On the date of the accident, Nurse Gonzalez was in the hall approximately five
feet from the door of Room 3-B-1 when she heard screams coming from the room.
She testified that she heard claimant say that she tripped on the telephone
wire. When she arrived in the room a few seconds later, she noticed that Mr.
Guarasci's telephone was on the foot of his
is the curious
Nurse Gonzalez testified that she had seen the telephone wire on the floor
between Mr. Guarasci's bed and the wall but had never seen it on the floor
between Beds C and D. Patients and visitors sometimes walk between Beds C and D
or between the bed and rear wall (see Exhibit C) and sometimes visitors also
walk past the foot of the bed as they enter and exit the room. She testified
that she has never had occasion to move telephone wires from areas where
patients or visitors walk.
The witness testified that she received safety training when she began working
at the hospital, and regularly attended additional safety meetings. She
testified that she is aware that the hospital is covered by the Joint Commission
on Accreditation of Health Care Organizations (hereinafter JACO), that there is
a safety manual in every unit, and that prior to June 15, 2002, the hospital had
a safety director. Nurse Gonzalez stated that prior to June 15, 2002, neither
claimant nor her husband had ever complained to her about the length of the
telephone wire. Prior to that date, Nurse Gonzalez had never received such a
complaint from anyone. She was not aware of anyone tripping on a patient's
telephone wire at the hospital nor had she ever seen a telephone wire where
Tara Cotter has been an Administrative Aide at HHH for approximately two
. She testified as follows regarding the telephone system: (1) that prior to
2000/2001, HHH obtained all of its telephone wires from Altura
(hereinafter Altura); (2) that
the company installed and still maintains the current telephone system; (3) that
Altura provided the beige box-type telephones which were in Mr. Guarasci's room
(see Exhibit D); (4) that the telephone wires that Altura provided were
approximately one-half-inch thick, were silver to dark gray and were offered in
three lengths - 7, 14 and 25 feet.
Ms. Cotter testified as follows regarding the selection of the 14-foot wires:
(1) that a patient's telephone typically sits on the nightstand next to the head
of the bed on the opposite side from the wall jack (see Exhibit 2) and is not
intended to be moved from the nightstand; (2) that the distance from the
nightstand to the wall jack is between 5 and 14 feet; (3) that she did not
measure the exact distance before she purchased the 14-foot wires; (5) that she
did not consult with any safety engineers, her superiors, or safety codes
regarding wire-length or tripping hazards; (5) that HHH typically used the
14-foot wires in the patients' rooms because the 7-foot wires were too short and
left very little room for maneuverability for the patients to pick up their
telephones; (6) that when the 7-foot wires were used they would get pulled out
of the telephone jacks causing the wires to break or the telephones to fall; and
therefore, (7) she purchased the 14-foot wires because it was the size most
utilized by the hospital.
Prior to June 15, 2002, Ms. Cotter received complaints about the wires being
too short and patients being unable to reach their telephones, but received no
complaints about them being too long. While Ms. Cotter did state that she was
aware that patients and visitors would sometimes walk down the middle of the
room or next to the foot of the bed, and that the telephone wires should not be
located between the patient's beds, like Nurse Gonzalez, she was unaware of
anyone tripping on a patient's telephone wire at the hospital.
At the time Ms. Cotter purchased the telephone wires, John DiGirolomo, Director
of Facilities Management for HHH from June 1996 to June 2001, was responsible
for hospital safety and administrative oversight of security officers. Mr.
DiGirolomo stated he has no formal training in hospital safety. His "training"
consisted of more than 30 years working in industrial and commercial settings.
The witness testified that HHH was accredited by JACO prior to his arrival, and
that he gave in-service training to staff to insure that the hospital was
compliant with the standards promulgated by JACO. The security officers
conducted regular safety inspections throughout the hospital, including
patients' rooms, and provided monthly reports of the inspections at the Safety
Mr. DiGirolomo explained that HHH purchases telephone wires that are long
enough to meet their intended purpose as determined by the distance from the
telephone jack to the telephone location. Mr. DiGirolomo also stated that in
patients' rooms the telephone wire extends from the wall jack at the head of the
bed to the telephone on the nightstand. He did not think it a safe practice to
locate wires across an area where patients walk.
Joseph Guarasci is 81 years old and had a hip replacement in June 2002.
Approximately four days after surgery he was transferred to HHH for
rehabilitation, where he remained in the same room during his entire stay. He
identified Exhibit D as similar to the telephone and wire in his room and stated
that the telephone was normally on his nightstand on the right side of the bed,
four or five feet away from the wall jack. The witness testified that if fully
extended, the wire would reach beyond the foot of the bed into the middle of the
room, but he did not know the exact measurement.
On cross-examination, Mr. Guarasci testified that he stayed at HHH for nine
days and his wife visited him several times prior to the accident. On June 15,
2002 his wife, sister and brother-in-law also visited him. Upon entering the
room, his wife walked ahead, past his bed and toward the window. Mr. Guarasci
did not see what caused his wife to fall. He does not remember if there was a
telephone wire on the floor at the time nor does he remember if he ever put the
telephone on the foot of his bed. The witness never complained to anyone at the
hospital about the length of the telephone wire.
The deposition transcript of Robert Mahone, Sr., was admitted into evidence by
stipulation as Court Exhibit 1. Mr. Mahone testified that on June 15, 2002 he
was a patient in HHH. From his bed, he saw Mrs. Guarasci trip on a wire on the
floor in front of her husband's bed. He also stated that the telephone wire
went from the wall jack down the left side of Mr. Guarasci's bed, all the way
around the bed to the nightstand. Mr. Mahone, Sr., was the only witness to
describe this path for the wire.
Claimant rested and the State moved to dismiss the claim for failure to prove a
prima facie case. The Court reserved decision.
The defense called Robert W. Mahone. On June 15, 2002, he was visiting his
father, whose bed was opposite to Mr. Guarasci's. Mr. Mahone stated that he did
not witness claimant's fall but saw her lying on the floor. Prior to the
accident, Mr. Mahone observed Mr. Guarasci's telephone on the foot of his bed
(see Exhibit 4) and on other occasions he saw it on the movable food cart. He
did not see the telephone wire extend past the front of the bed and never saw
Mr. Guarasci's telephone wire on the side of the bed closest to the entrance
door (the "left" side).
On cross-examination, Mr. Mahone testified that on the day of the accident he
saw the telephone wire extending from the wall along the side of the bed closest
to the bathroom (the "right" side) to the foot of the bed. The telephone wire
was on the floor but did not extend beyond the foot of the bed. Mr. Mahone
stated that he was already in the room when Mr. Guarasci and his visitors
arrived. He was the only witness at trial with current independent recollection
of the placement of the telephone and wire.
Scott Hadley also testified pursuant to subpoena. He is currently employed by
Altura and has worked for them for 26 years as a technician at hospitals,
maintaining telephones and telephone systems.
Altura has a contract with the State of New York to provide technical service
to HHH as the sole source provider of telephone service to the hospital. Altura
provided the telephones (Exhibit D) and telephone wires after they installed the
telephone system. Mr. Hadley testified that the wall jacks are usually between
the beds. He further explained that based on industry standards, the length of
the telephone wires Altura provided were 7, 14 and 25 feet.
The State called Edmund Zybert who testified that he was appointed as Chief
Administrative Officer of HHH two years ago. He is second in charge of HHH,
responsible for the Ambulatory Care Division, other operating departments, and
Mr. Zybert has been involved in risk management at the hospital since 1996. He
reviews all patient and visitor accidents at the hospital and is not aware of
anyone tripping on a patient's telephone wire prior to June 15, 2002.
On cross-examination, Mr. Zybert said that he was aware that patients and
visitors walk between beds in patients' rooms, and that patients and visitors
might walk between the bed and closet as shown in Exhibit 4. He did not agree
that a 14-foot telephone wire connecting a wall jack to a telephone on a
nightstand approximately five feet away would "get strewn around on the floor
where patients are expected to walk between the bed and the closet" (Trial
Transcript, Volume III, Page 299).
Mr. Zybert did not consider it safe practice to permit a 14-foot telephone wire
to extend into accessible areas. He testified that prior to June 15, 2002, the
issue of whether a 14-foot telephone wire was excessive never arose. He
testified that he conducted safety inspections in Unit 3-B prior to June 15,
2002 but did not inspect the length of the telephone wires.
The State called Edmund Coletti as a witness. Since April 2004, Mr. Coletti
has been the Chief Operating Officer at HHH. He oversees the Facilities
Management Departments which includes the safety functions and is familiar with
the rules and regulations followed by the hospital, including JACO and the Life
In June 2002, the hospital was required to follow the 1997 version of the Life
Safety Code. Mr. Coletti testified that Exhibit 22 (for Identification) is the
1991 version of the Life Safety Code and not the applicable code in 2002. The
witness stated that nothing in the codes regulates patients' telephone wire
length. During his tenure at the hospital, JACO has never made comments,
positive or negative, about the length of the telephone wires in patients'
Mr. Coletti confirmed that patients' telephones are located on the nightstands.
He again confirmed the wire path, behind the bed to the wall jack between the
two beds. Prior to June 15, 2002, the witness never received any complaints
concerning wire length and was not aware of any tripping accidents resulting
from the telephone wires.
On cross-examination, Mr. Coletti testified that he did not know whether the
wording of Section 31.1.21 of the 1991 version of the Life Safety Code was
different from the 1997 version, but he believed the intent had not changed
(Trial Transcript, Volume III, Page 324). He stated that only the actual
doorway to a patient's room is the "access" as defined in the code and he based
his testimony on his experience, seminars and interpretation of the codes. He
stated that the hospital has never been cited by JACO for having a telephone
wire on the floor between beds.
Claimants assert that the purchase of 14-foot telephone wires created a
foreseeable risk that the "excessive" wire length would encroach upon areas of
the floor where it was known that patients and visitors regularly walked (see
Claimants' Post-Trial Brief, Page 2). Claimants further assert that the record
contains ample evidence of a recurrent condition sufficient to satisfy the
element of constructive notice (id.).
A landowner is not the insurer of the safety of those coming onto the premises,
but rather "must act as a reasonable [person] in maintaining his property in a
reasonably safe condition in view of all the circumstances, including the
likelihood of injury to others, the seriousness of the injury [that might
result], and the burden of avoiding the risk" (
Miller v State of New York
, 62 NY2d 506, 513; Basso v Miller
NY2d 233). The claimant bears "a very fundamental and necessary burden" to
establish a dangerous or defective condition because of which defendant should
have foreseen the reasonable possibility of injury to users (Allen v
, 28 AD2d 155, 157, affd
22 NY2d 924), yet failed to remedy or
warn of it in a timely fashion (Basso v Miller
, 40 NY2d 233,
). Creation of a dangerous condition constitutes actual notice
(Lewis v Metropolitan Transp. Auth.
, 99 AD2d 246, 249, affd
NY2d 670). The pertinent inquiry is not whether the property has been kept in
perfect condition, eliminating all potential hazards, but whether the premises
were reasonably safe in light of all the surrounding circumstances (McMullen
v State of New York
, 199 AD2d 603; Tripoli v State of New York
AD2d 823). Conclusions based upon mere speculation or conjecture are without
probative value (Mueller v Hannaford Bros. Co.
, 276 AD2d 819, quoting
Maiorano v Price Chopper Operating Co.
, 221 AD2d 698,
Mesick v State of New York
(118 AD2d 214, 217), the Appellate Division,
Third Department stated:
"It has long been the law of this State that ‘[t]he risk reasonably to be
perceived defines the duty to be obeyed' (
Palsgraf v Long Is. R. R. Co.
, 248 NY 339, 344). Applying
these principles to a landowner, the factors to be considered in determining to
whom a duty, if any, was owed are the likelihood of injury to another from a
dangerous condition or instrumentality on the property and the foreseeability of
a potential plaintiff's presence on the property (Kush v City of Buffalo
[59 NY2d 26, 29-30])."
Claimants assert that the defendant may be held liable for injuries resulting
from a recurrent dangerous condition it creates or leaves unattended (
Erikson v J.I.B. Realty Corp.
,12 AD3d 344). Claimants assert that a
defendant's actual knowledge of a recurring condition constitutes constructive
notice of each specific recurrence of it. The evidence adduced at trial
established that while Nurse Gonzalez was aware that Mr. Guarasci's telephone
wire did occasionally touch the floor between the wall and the bed, neither she
nor any other hospital employee offered at trial had ever seen a wire on the
floor where patients or visitors walked, nor had any employee received any
complaints related to a wire being on the floor. Further, claimants offered no
evidence that anyone had tripped on a telephone wire at the hospital prior to
the Mrs. Guarasci's accident. Thus, claimants failed to establish that
defendant had actual notice of a recurring condition sufficient to constitute
constructive notice. However, the applicable standard is "where a known defect
on the premises is routinely left unattended and causes a recurring hazard
(see Sweeney v D & J Vending
, 291 AD2d 443 [leaking vending machine];
David v New York City Hous. Auth.
, 284 AD2d 169 [leaks which caused
rainwater to accumulate in a stairwell]; McLaughlan v Waldbaums, Inc.
237 AD2d 335, 336 [unstable supermarket display])" (Gloria v MGM Emerald
., 298 AD2d 355, 356).
In the case at bar, claimants have failed to establish by a preponderance of
the credible evidence that the hospital staff had actual or constructive notice
that telephone wires were touching the floor where patients or visitors would
walk. Specifically, Nurse Gonzalez, Mr. Zybert, Mr. Coletti, and Ms. Cotter all
testified that they had not observed nor been made aware of any telephone wires
on the floor where patients or visitors had walked. Further, claimants failed
to establish that the alleged dangerous condition (the telephone wire) was
routinely left unattended by hospital staff. The credible evidence adduced at
trial was that if a telephone wire was on the floor, it would be moved by staff.
In fact, Nurse Gonzalez testified that on several occasions when she saw Mr.
Guarasci's telephone on the foot of his bed, she moved it back to the
Claimants also claim that defendant created a dangerous condition by purchasing
the 14-foot wire. Claimants offered no expert testimony to support this
conclusion. The Court finds that claimants failed to establish by a
preponderance of the credible evidence that the mere purchase of the wire
constituted a design defect which, per se, created a dangerous condition.
that claimants established that the State had notice of a
dangerous condition and failed to remedy it, claimants still failed to establish
that the telephone wire caused Mrs. Guarasci to fall. Though Mrs. Guarasci
testified that after she fell "everyone" saw the telephone wire around her foot,
she later admitted that she did not know what caused her to fall. At his
deposition, Mr. Mahone, Sr., testified that claimant tripped over the telephone
wire, stating that the telephone wire extended from the wall jack down the left
side of Mr. Guarasci's bed, around the front of the bed and up to the telephone
on the nightstand. However, his testimony was directly refuted by his son who
testified that the wire extended from the jack along the top of Mr. Guarasci's
bed and then down between the wall and the bed to the foot of the bed where the
telephone was sitting (see Exhibit 4). He stated that the telephone wire did
not cross the floor near the bottom of the bed and he never saw the wire on the
side of the bed closest to the entrance door. Mr. Mahone, Sr., is at variance
with all other witnesses in this matter, and I conclude that he is mistaken on
Finally, there is the issue of the telephone that did not move. If claimant
tripped over the telephone wire with enough force to cause a fall, the Court
cannot imagine that an attached base unit weighing approximately one or two
pounds would remain quietly in place at the foot of the bed. Yet every witness
who testified on this point confirmed that is exactly where the telephone
stayed. As credible and forthright as the Court found claimants to be, I cannot
erase my doubt about the actual cause of Mrs. Guarasci's unfortunate accident.
These doubts are enough to prevent the required finding of proximate causation
in this case.
Therefore, the Court finds that claimants failed to establish by a
preponderance of the credible evidence that Mrs. Guarasci tripped over a
telephone wire. Thus, there is a failure to establish the proximate cause of
the accident (see
Schwartz v Mittelman
, 220 AD2d 656).
In accordance with the foregoing, the claim is dismissed. All motions made at
trial upon which decision was reserved are now denied. The Chief Clerk is
directed to enter judgment accordingly.