HEYWARD v. THE STATE OF NEW YORK, #2005-033-544, Claim No. 108138
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
James J. Lack
By: Larry Blisko, Esq.
Glinkenhouse, Floumanhaft & Queen, Esqs.By: Philip Floumanhaft, Of Counsel
Eliot Spitzer, New York State Attorney
GeneralBy: John M. Shields, Assistant Attorney General
June 28, 2005
See also (multicaptioned
This is a timely filed claim for damages by Dwayne Heyward (hereinafter
“claimant”) based upon the alleged negligence of the State of New
York (hereinafter “State”). On March 24, 2005, a bifurcated trial
was held to determine the question of liability.
On October 9, 2002,
claimant was an employee of Sodexho Marriot (hereinafter “Sodexho”)
working in a cafeteria in the Rathskeller Building at SUNY Old Westbury, Old
Westbury, New York. According to his testimony, claimant worked as a porter at
this location for approximately a year prior to the incident date. His duties
included, but were not limited to: emptying the garbage, cleaning tables,
washing dishes, and changing grease vats. In order to empty the garbage,
claimant would have to carry the garbage bags out of a back door of the building
down steps and into a dumpster behind the building. Claimant testified that he
took garbage out several times a day and had taken it out at least three times
on October 9, 2002 before falling. According to claimant, the steps had debris,
such as paper, on them, but claimant could not state if he ever noticed anything
besides the paper. Claimant stated the steps were in the same condition all of
October 9, 2002. At some point during claimant’s shift when it was dark
, claimant was carrying two large, heavy, bulky garbage bags in his right hand
from the back door to the dumpster but was not holding on to an available
The steps descend in three levels. As claimant was halfway down
the third level (closest to the ground) he fell down the remainder of the steps.
Claimant said that his foot went out from under him, but he could not cite a
particular item that caused him to fall other than he saw some paper in the
There is a light outside of the back door which claimant testified
was not on at the time of his accident. The only thing claimant could say about
the light was that it normally came on after dark, but that he did not know how
it got turned on.
Testifying on claimant’s behalf was Michael Crum.
On October 9, 2002, Mr. Crum was employed by Sodexho in the Rathskeller Building
as a cook and worked with the claimant.
The witness testified he knew the stairs outside the building led to the
dumpster. Mr. Crum testified that the light by the stairs went on automatically
and he heard that the college kept the timer on a summer schedule all year, such
that the light went on well after dark during the winter. According to the
witness, the stairs were always littered with debris such as fliers and leaves.
However, on cross-examination, the witness admitted that he did not use these
steps very often.
William Kimmins testified for the State. He is employed at SUNY Old
Westbury as the Assistant to the President for Administration. He is
responsible for labor and personnel, facilities organization and for the
maintenance of all of the buildings on the SUNY Old Westbury campus. The
witness testified that he was generally familiar with the Rathskeller Building
at the time of claimant’s accident.
At trial, and according to the
witness’s deposition testimony (claimant’s Exhibit 1), Mr. Kimmins
stated that he had received no complaints concerning debris on the stairs or the
lighting on the stairs. The witness stated that the door leading to the stairs
was accessible by the general population of the campus but that it was used
primarily by the food-service workers to go to the dumpster. He described the
building as being in a remote part of the campus. There is no bulletin board or
place for student postings by the door. The witness was not aware as to how the
light over the door was operated - whether the light is turned on automatically
or manually. The witness also stated in his deposition that he had
periodically inspected the rear of this building and never saw a problem with
litter or lighting.
In the ownership of property, the State of New York
serves two functions. The first role casts the State in a proprietary function
and the other role is that of a government function (Miller v State of New
, 62 NY2d 506). The functions are not mutually exclusive. Instead, the
functions are opposite ends of a continuum (see Miller
A governmental entity's conduct may fall along a continuum of responsibility to
individuals and society deriving from its governmental and proprietary
functions. This begins with the simplest matters directly concerning a piece of
property for which the entity acting as landlord has a certain duty of care, for
example, the repair of steps or the maintenance of doors in an apartment
building. The spectrum extends gradually out to more complex measures of safety
and security for a greater area and populace, whereupon the actions
increasingly, and at a certain point only, involve governmental functions, for
example, the maintenance of general police and fire protection. Consequently,
any issue relating to the safety or security of an individual claimant must be
carefully scrutinized to determine the point along the continuum that the
State's alleged negligent action falls into, either a proprietary or
governmental category. Miller at 511-512.
In regard to its proprietary function, “the State
‘must act as a reasonable man 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, and the burden of avoiding the
risk’ (Basso v Miller, 40 NY2d 233, 241, quoting Smith v
Arbaugh’s Rest., 469 F2d 97, 100)” (Preston v State of New
York, 59 NY2d 997, 998). “When the liability of a governmental entity
is at issue, ‘[i]t is the specific act or omission out of which the injury
is claimed to have arisen and the capacity in which that act or failure to act
occurred which governs liability, not whether the agency involved is engaged
generally in proprietary activity or is in control of the location in which the
injury occurred’ (Weiner v Metropolitan Transp. Auth., 55 NY2d 175,
182)” (Miller, 62 NY2d at 513). The State’s proprietary
function subjects it to the same rules of liability as apply to a private
On the other end of the continuum, is the State’s
governmental function. The State “remains immune from negligence claims
arising out of governmental functions such as police protection unless a special
relationship with a person creates a specific duty to protect, and that person
relies on performance of that duty” (Price v New York City Hous.
Auth., 92 NY2d 553, 557 - 558). In the case at bar, defendant’s
function falls into the proprietary category. As the owner of the Rathskeller
Building, the State’s duty is to use reasonable care in maintaining the
property in a reasonably safe condition to prevent the occurrence of foreseeable
injuries (Basso v Miller, 40 NY2d 233, supra). The duty of care
is limited by claimant's reasonable expectations under the circumstances. The
defendant's obligation in such a situation is to make the premises as safe as
they appear to be so that claimant can fully comprehend and see the risks which
will be assumed (Drew v State of New York, 146 AD2d 847; see also,
Walter v State of New York, 185 AD2d 536).
According to Mochen v State of New York, 57 AD2d 719, 720:
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.
It is incumbent upon claimant to 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
(Gordon v American Museum of Natural History
, 67 NY2d 836).
the case at bar, claimant has failed to meet his burden of proof. Claimant
relies upon the theory that the State is negligent because of a recurring
condition of garbage at this location and not doing anything to remedy the
problem (Simoni v 2095 Cruger Assocs.
, 285 AD2d 431). However, the Court
finds that the defendant was not aware of a “chronic” problem of
garbage and that claimant has failed to prove that such a condition existed.
The Court discounts the testimony of Mr. Crum because of his infrequent use of
the stairway. As to the remaining two witnesses - claimant and William Kimmins
- the Court finds Mr. Kimmins’ testimony to be the more credible.
Claimant testified that he would see paper, such as student fliers in this
area. However, he also testified that he used this stairwell many times each
day (three times on October 9, 2002, prior to his accident), and his testimony
always was that he would see “some” paper that would be windblown.
Yet, claimant never complained of a condition with the debris that made it
hazardous for him to perform his job. In addition, the State’s witness
testified to periodic inspections of the location without witnessing any debris
As to the lighting of the stairwell, the Court finds that the
State fulfilled its proprietary function in making the premises as safe as
possible under the circumstances. The State provided a light, which according
to hearsay testimony
, was on an automatic timer. The claimant was one of the most frequent users of
this stairway. Given that claimant worked an evening shift, a large percentage
of his use of the stairs was after dark. Claimant worked for Sodexho for
approximately one year prior to October 9, 2002. During that time, neither
claimant nor anyone else complained to the defendant concerning the lighting.
Therefore, defendant would have been unaware of a problem with the timing of the
lighting in this area.
Lastly, claimant has failed to prove that it was debris in the area or the
lack of lighting which caused him to fall. Claimant states that his foot went
out from under him. There is no testimony from claimant that he slipped on
anything or that he was unable to see in this stairway. On the contrary,
claimant indicates that he could see the area around him and saw “a
paper” on the ground after he fell. Rather, the Court finds that it was
claimant’s lack of care in carrying “two heavy and bulky”
trash bags in one hand without using the handrail which caused claimant to
Based upon the foregoing, the Court finds in favor of the defendant
and the claim is dismissed. All motions not specifically ruled upon are denied.
The Clerk of the Court is directed to enter judgment accordingly.
June 28, 2005
HON. JAMES J. LACK
Judge of the Court of Claims
.Claimant never testified to the time of the
incident’s occurrence, nor did claimant testify as to the shift that he
was working on October 9, 2002. However, claimant testified that he normally
worked 4:00 p.m. to 10:00 p.m. The claim indicates that the incident occurred
at approximately 7:00 p.m.
.Mr. Crum worked with the claimant since prior
to the accident up to approximately three weeks prior to the trial, when
claimant testified that he left his job with Sodexho.
.The witness stated that the stairway had no
handrail, while claimant, who used the stairs several times a day, testified
that there was a handrail.
.The testimony came from Mr. Crum who
indicated that he had friends that worked for the State and they told him that
the light was on an automatic timer. This testimony was not objected to by the
Assistant Attorney General.