New York State Court of Claims

New York State Court of Claims

CHWALEK v. THE STATE OF NEW YORK, #2006-009-160, Claim No. 107809


Synopsis


This claim which sought damages for personal injuries suffered by claimant when he tripped and fell on a sidewalk on the SUNY Oswego campus was dismissed, with the Court finding that claimant failed to establish a dangerous or defective condition and that the height between concrete slabs of the sidewalk was a trivial defect.

Case Information

UID:
2006-009-160
Claimant(s):
MICHAEL J. CHWALEK
Claimant short name:
CHWALEK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107809
Motion number(s):

Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
MITCHELL LAW OFFICE
BY: Richard C. Mitchell, Jr., Esq.,Of Counsel.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
June 26, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
In this claim, claimant seeks damages for personal injuries suffered by him when he tripped and fell on a sidewalk near Romney Field House, which is located on the campus of the State University of New York at Oswego (SUNY Oswego). Claimant alleges that his fall was caused by the defective and dangerous condition of this sidewalk. The trial of this claim was bifurcated, and this decision is therefore limited solely to the issue of liability.
Claimant testified that on March 7, 2003 he went with his father, Paul Chwalek, to Romney Field House to purchase some hockey tickets. Claimant’s father parked his vehicle on the access road to the field house, and waited in his vehicle while claimant walked to the field house to purchase the tickets. Claimant testified that upon exiting the vehicle, he walked down two sets of stairs to a sidewalk that runs in an easterly and westerly direction, until he reached a sidewalk that runs in a northerly and southerly direction leading to the entrance of the field house. After purchasing the tickets, he then left the field house and was returning to his father’s vehicle along the same route. As he was heading in an easterly direction on the sidewalk, he tripped on a raised section of the sidewalk, which caused him to fall, and he hit his face on the stairs which lead up to the access road.
At the time of this fall, it was approximately 5:30 p.m., and it was therefore starting to get dark, although the weather was clear. Claimant also testified that there was only one light in the immediate area, which illuminated the exterior of the field house.
Following his fall, claimant went to the emergency room at Oswego Hospital for medical treatment of his injuries. He then returned to the campus the following day and reported the accident to campus security. A representative from the campus police force went with claimant to the location of his fall, where photographs were taken. An accident report was then prepared and filed.
Claimant testified that he was not a student at Oswego, but that he was familiar with the area, since he had attended several hockey games at the field house prior to this incident.
Paul Chwalek, claimant’s father, also testified at trial. Mr. Chwalek did not witness his son’s fall, but testified that the height differential between the two slabs of sidewalk where his son fell was approximately three inches. Similarly, claimant, in his testimony, had stated that the rise in the sidewalk was approximately three inches.
Matthew C. Barbeau, a police officer employed by SUNY Oswego, testified that he was the officer who photographed the site, and prepared an accident report, the day after the incident. In his accident report (see Exhibit 11), Officer Barbeau stated that the rise between the slabs of sidewalk was approximately 1½ inches. He confirmed this observation as to height differential with his testimony at trial.
George Stooks, the Director of Facilities and Maintenance at SUNY Oswego, also testified, and agreed with Officer Barbeau that in his opinion, the height differential between the slabs of sidewalk was approximately 1½ inches. Mr. Stooks also testified that his department is responsible for the repair and maintenance of sidewalks on the SUNY Oswego campus. He testified that SUNY has procedures in place to provide for the visual inspection of sidewalks at the end of each winter, and that the department also has procedures in place to insure a prompt response to any complaints made about the condition of sidewalks. In this particular instance, Mr. Stooks testified that his department had not received any prior complaints about the condition of the sidewalk in this area prior to claimant’s fall, nor were there any reports of any similar incidents in this area prior to claimant’s fall.
A landowner has a duty to maintain its property in a reasonably safe condition, in view of all the circumstances (Basso v Miller, 40 NY2d 233). The State, as a landowner, is subject to the same rules governing private landowners (Preston v State of New York, 59 NY2d 997). The State, therefore, must act as a reasonable person to maintain its property in a reasonably safe condition, but it is not an insurer against any injury which might occur (Killeen v State of New York, 66 NY2d 850; Condon v State of New York, 193 AD2d 874). In order to prevail on this claim, therefore, claimant must establish by a fair preponderance of the credible evidence that a dangerous or defective condition existed, which the State either created or of which it had actual or constructive notice. Constructive notice can be established if there is evidence that an apparent and visible defect existed for a sufficient period of time prior to the accident which would have allowed the State the opportunity to discover and correct the problem (Gordon v American Museum of Natural History, 67 NY2d 836).
Resolution of the issue as to whether a dangerous or defective condition exists is generally a question of fact that turns on the circumstances of the individual case (Lamarre v Rensselaer County Plaza Assoc., 303 AD2d 914). A landowner, however, may not be held liable for negligent maintenance due to the existence of a trivial defect on a walkway, not constituting a trap or a nuisance (Sullivan v State of New York, 276 AD2d 989; Liebl v Metropolitan Jockey Club, 10 AD2d 1006). Liability is imposed only when the facts and circumstances establish that the defect presented an unreasonable risk of harm and had the characteristics of a trap or nuisance (Maloid v New York State Elec. & Gas Corp., 257 AD2d 712).
In this particular matter, based upon its review of the trial testimony and examination of the photographs placed into evidence, the Court finds that the height differential between the concrete slabs of the sidewalk was approximately 1½ inches. Although it was dusk when this incident occurred, the weather on this day was clear and the height differential was open and obvious to anyone walking on the sidewalk and did not constitute a trap or nuisance. Based on the foregoing, therefore, this Court finds that the difference in height between the concrete slabs is insufficient to establish a dangerous or defective condition. The Court finds that this difference in height between the concrete slabs falls within the meaning of the “trivial defect” doctrine, which provides that some defects in walkways are too small as a matter of law to support a negligence claim (Trincere v County of Suffolk, 90 NY2d 976; Liebl v Metropolitan Jockey Club, supra; Allen v Carr, 28 AD2d 155).
Furthermore, even if this Court was to find that this difference in height constituted a dangerous or defective condition, the Court finds that claimant has failed to demonstrate that the defendant had actual or constructive notice of its existence. Based upon the testimony at trial, there were no reports of any prior incidents occurring on this walkway, or any prior complaints concerning the condition of the sidewalk in this vicinity, despite the fact that this sidewalk was heavily trafficked.
Claimant contends that due to its responsibilities of maintaining the sidewalk, personnel at SUNY Oswego would have actual, if not constructive, knowledge of this condition. However, a general awareness that sidewalks may heave in a general sense does not equate to notice of upheaval at the particular spot of claimant’s fall. Accordingly, the Court must find that there was no evidence of any notice of a defective condition, either actual or constructive, prior to this incident.
Based upon the foregoing, the Court finds that claimant has not established by a fair preponderance of the credible evidence that a dangerous or defective condition, of which the State had either actual or constructive notice, proximately caused his injuries. This claim must therefore be dismissed.
Any motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.

June 26, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims