Kalief Stallings alleges in his Claim that agents of the City University
of New York (hereinafter CUNY) negligently failed to properly maintain the
entrance doors to the women’s locker room in the gymnasium at Bernard M.
Baruch College (hereinafter Baruch or Baruch College), resulting in a dangerous
condition that caused Claimant serious injury on December 6, 2002 as he
attempted to pass through the doors. Trial on the issue of liability was held
on April 18 and 20, 2006. This decision relates only to liability.
Stallings testified that on December 6, 2002 he was a student at Art and Design
High School. His basketball team had been invited to participate in a
basketball game against CUNY’s team at the Baruch College gymnasium on
the 6th floor of 17 Lexington Avenue in Manhattan.
Although they had played the team in the past, they had never played at the
Baruch College gymnasium. Claimant said that he played on his school’s
varsity team for four years, and in 2002, his senior year, he was co-captain of
his team. Claimant had never been to the Baruch College gymnasium before the
day of the accident.
When the team arrived at the gym with their coach at
approximately 4:00 or 4:30 p.m., they were directed by the coach of the opposing
team to the women’s locker room in order to change from their street
clothes into uniforms. After leaving his clothing and other personal effects -
including his wallet and keys - on a bench in the locker room, he exited the
locker room directly into the gym. Although he intended to return to the locker
room only at the end of the game, he said that at no time did anyone indicate
that access to the locker room was foreclosed, or that the door would be
Claimant played for the first two quarters of the game. At half
time, the team did not go back to the locker room, instead leaving the gym
through a “neutral hallway into another hallway” where the coach
spoke to them about strategy for the game, keeping them there until it was time
to warm up for the third quarter. [T-35]
. They returned to the court, warmed up, and began the third quarter of play.
Claimant played only for 3 of the 8 minutes of the third quarter, because he
“got . . . [his] fifth and final foul . . . and . . . had to leave the
Prior to being called out on this final foul himself,
Claimant said one of the two referees called one of his teammates on a
“charging foul.” Claimant said he disagreed with the call against
his teammate, and went to his own coach and spoke with him “about the call
and how the refs were treating us out there.” [T-37]. Claimant said he
spoke “. . . in . . . my regular tone . . .I wasn’t screaming. I
didn’t think the ref heard me or anything like that.”
]. He testified that he did not yell at any of the other players
after the call against his teammate, he did not speak or yell at either of the
two referees, and spoke only to his coach. While he was speaking with his coach,
however, he heard another whistle blow, turned around and saw the referee
pointing at him and making the gestures used to indicate that Claimant was being
called on a technical foul and was out of the game. Claimant described himself
as “confused” and “shocked” by the call, since such a
foul is usually given for “disrespecting the referee, or something of that
nature, or just being unruly. I didn’t fit that description . . . ”
[T-38]. After being called on the technical foul, he said he did not say
anything to the referees - did not yell or scream - and proceeded to the locker
room to change, rather than sitting on the team bench provided. He said
“I couldn’t play no more, so I felt, why should I sit there?”
The two swinging doors to the women’s locker room were
reached through an open archway and vestibule area opening on the gym. Once
through the open archway, the doors to the locker room are directly to the
right, oriented perpendicularly to the entrance to the gymnasium proper. As he
approached the door to the women’s locker room he testified that he was
“not really [angry], . . . just more or less confused.” [T-45]. He
said he had been playing a great game, and still ranked as the top scorer when
he left in the third quarter. Indeed in his view, the game was over in the
first quarter, because there was no way that the other team could come back from
the scoring advantage held by Claimant’s team. He walked straight off the
court to the locker room, pushed the right-hand door in the glass area of the
door, and his “. . . hand went straight through the glass.” [T-46].
Before he moved to open the door he noticed that there were “. . . metal
things there to push it, but I don’t know what I was thinking, I was just
going into the locker room, and I pushed the door . . . ”
He denied making a fist or banging the glass with his
hand. After the fact, he realized that the doors were locked. When his hand
first went through, however, he did not know the door was locked. He pulled his
hand straight out from the glass, and saw a cut. Thinking it was not serious,
he went up to his coach, and calmly told him he was bleeding. As the coach asked
to see what the injury was, Claimant “. . . moved
. . . [his] hand and
. . . made a fist and then . . . [his] hand - - . . . [and his] arm started
bleeding profusely.” [T-48]. A friend gave Claimant his shirt in order to
allow Claimant to wrap his arm. A woman at the scorer’s table in the gym
called for an ambulance. He did not speak to either his coach or anyone else
until he was asked about how he was injured by emergency medical services [EMS]
personnel in the ambulance. A teammate and the head coach accompanied him in
Photographs showing the location of the doors and the layout
of the gym on December 6, 2002 - marked to show such location and the location
of the Claimant’s team bench - were admitted in evidence. [See
Exhibits 5, 4 and 10]. When facing the vestibule the team bench is immediately
to the left of the archway, and the locker room entrance doors can be seen
through the vestibule/archway on the right. [ibid.
]. They appear to be
standard swinging doors with a large rectangular glass area or glass pane on the
top half of the door. There are metal push plates on both doors where one would
push to open them. Claimant estimated that they were about six (6) feet away
from the out-of-bounds line of the basketball court. Although the archway into
the vestibule area shows solid hinged doors attached that have the same surface
as the other walls of the gym - a padded surface of some indeterminate depth -
they are open in the photographs. From Claimant’s description of how he
exited the gym, they were in an open position when he did so as well. To all
appearances, when closed, the padded doors would complete one long sidewall of
Photographs taken closer up elicited more descriptive testimony
regarding the differences between the swinging doors depicted in the photographs
versus how they appeared on the day of his accident. [Exhibits 6 and 11].
Claimant said: “. . . well in photograph number 11, there’s two
solid window panes there, and there were four window panes on the date of my
accident. There was probably a bar here [indicating
] to make four window
panes.” [T-64]. Another difference he noted was that “it was see
through glass” on the day of his accident. [ibid.
] In the
photographs it “looks like Plexiglass . . .” Additionally, the
glass area is larger in the photographs than it was on the day of the accident -
“. . . Being that the bar was taken out that divided the two windows into
four.” [T-67]. When marking where on the photographs his hand went though
the glass, Claimant marked an area towards the middle and top of the pane.
Exhibits 6 and 11]. He said that when his hand went through the
glass, there was a hole there; he did not see any shattered glass around the
Another series of photographs were identified as depicting the
view of the locker room doors from inside the locker room. [See
7, 8 and 9].
When asked by his attorney, “do you recall ever telling
anyone after this incident took place that you got angry because you fouled out
and punched through the window in the door to the locker room?”, Mr.
Stallings responded “No.” [T-71].
On cross-examination Claimant
continued to deny that he was upset by having been called on a technical foul
and removed from the rest of the game. He repeated his opinion that the referee
was being more lenient to the other team, largely because the game was over in
the first quarter based upon how far behind that team was. He also repeated
that to this day, he did not know why he was called on a technical foul, when
such calls are usually made when someone talks to the referee or uses profanity
and the like. He conceded that as he was about to open the door he was aware
that there was a glass window in the door, and that he knew that glass may
break, but nonetheless used the glass area of the door to push it open rather
than some other portion of the door. He indicated that he was aware that
others, including a security guard from Baruch College, had indicated that he
had told them that he punched through the window, but denied making such
comments. He indicated that he was not aware that hospital records reflected
his reporting that he had punched a window. He acknowledged that the cuts he
sustained were to the bottom part of his wrist. He also acknowledged that his
social security number appears on the incident report completed by personnel at
the College, as does the indication that he said that he had punched the window.
When asked if he would be “surprised” if the locker room were locked
given that all his personal property was in there, as were the belongings of
teammates, he said he would not be, but nonetheless did not ask anyone if it
On redirect examination he denied having furnished anyone with
his social security number at the scene. He also confirmed that he had not
sustained injuries on the top part of his hand - such as the part between his
knuckles - areas that might have been injured, his attorney suggested, were he
to have made a fist.
Ronald Willis, a Campus Peace Officer at Baruch
College on the day of the accident, no longer employed by CUNY, testified. Part
of his training involved learning how to respond to an “aided case.”
[T-89]. He explained that an “aided case” is a situation where an
individual needs medical assistance of some kind, such as cardiopulmonary
resuscitation [CPR]. In addition to the CPR training associated with
responding to an aided case, he said that he was trained with regard to the
paperwork involved in completing incident reports and investigating incidents.
The investigatory procedures included “. . . getting names . . . taking
names of witnesses or people in the area. Whoever the aided case is, getting
information from them. And making sure that the control room is notified and
getting supervisors involved.” [T-90]. He indicated that he would
generally write such information by hand on an incident report, that would later
be typed up by somebody else. Prior to being typed, the information would be
reviewed to “. . . make sure all the pertinent information is in
there.” [T-91]. It was not part of the normal operation for him to then
review a typed report.
With regard to the subject accident, on December 6,
2002 he received a call on his radio reporting that there was an aided case with
bleeding from his arm, and went up to the gym to check on the matter. When he
arrived at the gym, Mr. Stallings was bleeding and was already being attended to
by his coach and others. He had something wrapped around his arm like a
tourniquet. Control was called to let them know that EMS was needed
immediately, although it later appeared that EMS had already been contacted.
The witness said that when he asked Claimant what happened, Claimant told him
that he had gotten “fouled out of the game . . . [and] punched the
The typed version of the incident report cites the
foregoing explanation of the accident given by Claimant. The report, which
makes reference to where Claimant was sitting when Mr. Willis arrived and that
the coach was applying pressure to Claimant’s bleeding right forearm, and
also notes Claimant’s age and social security number among other things,
reflects that Mr. Willis gathered information in the manner he described.
Exhibit 1]. In terms of his own observation, Mr. Willis said he saw
a roundish hole in the glass, and that there was glass on the floor in front of
the broken window. Most of the glass was missing. The glass itself had mesh
wiring through it as he recalled, saying “I seen glass hanging like - -
the glass that was missing, but there was shreds still hanging around. But if
the glass was whole, you could see like the little grid. It’s like a
grid.” [T-109 & 110]. Thereafter he completed a work order to replace
Thomas Schmidt had been a senior stationary engineer at Baruch
College on December 6, 2002. Mr. Schmidt worked at Baruch for 27 years prior
to his retirement. He “. . . was in charge of the entire
heating/air-conditioning plants and all related equipment, and the tradespeople
. . . [he would send] from the buildings and grounds office to repair
things and take care of problems.” [T-118]. Work orders would generally
come via e-mail or phone, and were then processed by a particular employee who
produced the work orders and put the requests in the boxes designated for
particular trades. The tradespeople would check their boxes and perform the jobs
requested. If it was an emergency, the employee “would get right on the
phone.” [T-119] .
Safety glass, as he understood it, was “two
layers of glass with something in-between that bonds them together, so if you
break one side, it somewhat stays together . . . “ [T-120]. He, however,
had never been involved in ordering safety glass materials. He had ordered wired
glass prior to the date of the accident, but noted that glass was one of those
items that would be ordered as you needed it, rather than stocking it. The
general maintenance policy was to “. . . replace things in kind. Whatever
was there, you put back. Or if you don’t have the exact thing, put back
whatever you have that’s suitable.” [T-122].
Mr. Schmidt was
unaware of any repairs to the women’s locker room doors for the year
previous to December 6, 2002, or on that date, and learned only after the fact
that they were repaired after the day of the accident. Although he could not
remember specifically what type of glass had been in the doors up until December
6, 2002, he noted that it now looked like Plexiglass. He said that in all his
time at the gym, the walls had padding material on them; and the only change to
the gym was that the “. . . floor was redone,” as opposed to any
structural change. [T-131].
Alfred Forte, now employed as a carpenter at
Baruch College, but who worked as a maintenance worker in 2002, also testified
briefly. On or about December 17, 2002 he made repairs to the broken pane in
the women’s locker room door, as shown on a work order. [See
Exhibit 2]. He recalled that when he went to do the work one of the window
panes had Plexiglass in it, and the other had “nothing.” [T2-52].
Plexiglass, he agreed, is different from regular glass in that it is not easily
broken, although with sufficient force it could be split. In the area of the
pane that he repaired there were “. . . a few small pieces of glass in the
corners.” [T2-53]. In his experience, wired glass is “. . . part of
the glass. It’s a single unit . . . ,” that extends the entire
length of a panel of glass. [T2-54]. Eleven days after the accident, he did not
see any pieces of wire remaining in the empty space, only the bits of glass.
On cross-examination, Mr. Forte indicated that he was “sure” he
had occasion to see the locker room doors prior to the day he replaced the
glass, but could not “. . . say for sure” that they contained wired
glass. [T2-56-57]. He declared, however, that where glass was used in doors in
the building it was all either safety glass or wired glass. On that basis he
believed that the locker room doors had wired glass.
engineering expert, Herbert Braunstein, gave his opinion that the glass present
in the women’s locker room doors at the time of the accident could not
have been safety glass, largely because it did not perform the primary function
of safety glass, as he saw it, to not allow a hand through in the first
instance, and then to not shatter and create sharp shards of glass capable of
injury. Notably, the only experience Mr. Braunstein had with safety glass was
with “one or two cases . . .[he] worked on” as an expert witness,
and “. . . maybe a couple of automobile accidents.” [T2-16]. The
different types of safety glass that he was aware of were: “. . .
wire[d] glass, . . . Plexiglass, [and] . . . the glass in an automobile . . .
” [T2-17]. Depending on the force of any impact, when safety glass is
struck in some fashion, it may have no effect, it may crack and it may shatter.
With regard to shattering, he asserted, “. . . you’d see the lines
all through it, but it won’t break, it will just shatter.” [T2-18].
If the force were strong enough it would push the panel out, he said.
Braunstein visited the scene once in January 2003. He said the locker room
doors appeared to be approximately 60 to 70 years old - “. . . as old as
the college.” [T2-20]. When he reviewed photographs during his
testimony, he estimated that the gym area was approximately ten (10) feet away
from the double door to the locker room.
Mr. Braunstein referenced sections
of the New York City Building Code generally providing that buildings must be
maintained in a safe condition, as set forth in the City Code or otherwise
required “. . . when the building was erected, altered or repaired . . .
” [T2-25]. See e.g.
New York City Building Code §27-127; and
that owners “. . . shall be responsible at all times for the safe
maintenance of the building and its facilities.” [T2-26]. New York City
Building Code §27-128.
Under the New York State Building Code, Mr. Braunstein testified that he
relied on provisions indicating that “[g]lazing in doors, shower doors and
enclosures, and bathtub doors and enclosures shall be so sized, constructed,
treated or combined with other materials as to minimize effectively the
possibility of injury to persons in the event the glazing is cracked or
broken.” [T2-27]. [See
9 NYCRR 736.1 (a)].
When questioned further about the State Building Code provisions, he stated that
it applied “. . . [b]ecause it’s right next to a gymnasium,
it’s a lot of activity going on. Of course, its’ minimal to do the
right thing, so why not do it? That’s my approach.” [T2-32]. When
asked about placement of decals or colored tape on glass doors, pursuant to
unspecified regulations of the U.S. Consumer Product Safety Commission, Mr.
Braunstein appeared to suggest that placement of such decals was advisable on
all glass, wherever its location, although such decals are suggested only on
transparent, all-glass doors in the provisions he referred to. He then opined
that because portions of the building were “updated,” these locker
room doors too should have been “updated . . . They should have put
safety glass in.” [T2-33]. He also opined that it was unreasonable not to
do regular inspections, and characterized the maintenance credo of those
responsible for the care of the buildings as “if it ain’t broke,
don’t fix it” - a misreading of the testimony.
cross-examination, until it was read to him, Mr. Braunstein was noticeably
unfamiliar with so-called Rule 47 of the New York State Industrial Code
12 NYCRR 47.1 et seq
], containing definitions of safety
glazing material. A far broader definition of what constitutes safety glazing
material is set forth therein, than the wired glass, Plexiglass, and automobile
glass Mr. Braunstein listed on direct. The Industrial Code defines
“transparent safety glazing materials” as “Materials which
will clearly transmit light and also minimize the possibility of cutting or
piercing injuries resulting from breakage of the material. Materials covered by
this definition include laminated glass, tempered glass (also known as
heat-treated glass, heat-toughened glass, case-hardened glass or chemically
tempered glass), wired glass, and rigid plastic.” 12 NYCRR 47.5(j). He
acknowledged that automobile windshields - despite having safety glass - may
shatter, and pieces may be found on the ground. Mr. Braunstein conceded that he
had no information on which to base his conclusions that no inspections or
regular maintenance were made on the premises. He also agreed that the
building code in effect at the time of the construction of the building controls
how it is built, and there is no requirement that as the Code changes, an owner
must go back and rebuild according to new standards, except when a building is
“altered or repaired.” [T2-41]. Mr. Braunstein then offered his
opinion that the “gymnasium was altered,” based on “the
]. He agreed that based upon the photographs alone
he was stating that the gymnasium was altered or renovated to such an extent
that it required the gym locker doors to be replaced. [T2-42]. Notably, the
only apparent change to the gym based upon Mr. Schmidt’s testimonial
evidence was that the floors had been “redone.”
was also unaware of the specifics of regulations concerning placement of decals
on glass, and that such requirement applied only to glass doors where glass
comprised 80% of the surface.
No other witnesses testified.
Although the State has a duty as a landlord to prevent foreseeable risks
of harm, it is not an insurer. Its duty is to exercise “reasonable care
under the circumstances...” [Basso v Miller
, 40 NY2d 233, 241
(1976)], to protect against foreseeable risks of harm, and to maintain its
property in reasonably safe condition.
Any duty to warn - viewed as
“encompassed” within the broader duty to protect against foreseeable
risks of harm - “extends, however, only to those conditions that are not
readily observable; the landowner owes no duty to warn of conditions that are in
plain view, easily discovered ‘by those employing the reasonable use of
their senses’ (Tarricone v State of New York,
175 AD2d 308, 309 [3d
Dept 1991] lv denied
78 NY2d 862 ), for in such instances
the condition is a warning in itself . . .(citations omitted
Thornhill v Toys “R” Us NYTEX, Inc.
, 183 AD2d 1071, 1072-1073
(3d Dept 1992). The fact that there may be no duty to warn if a reasonable
person should have seen the condition and proceeded accordingly, does not,
however, negate a landowner’s obligation to maintain his property in a
reasonably safe condition, but may pose issues of comparative fault. “. .
. [T]he open and obvious nature of an allegedly dangerous condition does not,
standing alone, necessarily obviate a landowner’s duty to maintain his or
her property in a reasonably safe condition.” See MacDonald v
City of Schenectady
, 308 AD2d 125, 127-129 (3d Dept 2003) discussing
Tagle v Jakob
, 97 NY2d 165 (2001); but see
Fitzgerald v Sears,
Roebuck and Company, 17 AD3d 522, 523 (2d Dept 2005).
It is the Claimant’s burden to prove his case by a preponderance of
the credible evidence. As the trier of fact and law, the Court is charged with
assessing the credibility of the various witnesses and evaluating the evidence.
See LeGrande v State of New York
, 195 AD2d 784 (3d Dept 1993)
82 NY2d 663 (1993); Raynor v State of New York
, 98 AD2d
865, 866 (3d Dept 1983)].
Claimant’s account of how his accident
occurred is not credible. By his own description, he was an 18-year-old star
player who had been thrown out of a game by a referee he was complaining about
and, in contravention of sportsmanlike principles, walked out of the gym rather
than remaining with his teammates on the bench. Calmly. He calmly touched the
glass pane on the door to the locker room - while noting that the pane was made
of glass and that the door contained a metal push plate - and it broke. Although
the question was artfully posed by his attorney, in that counsel asked Claimant
if he remembered saying he had punched the glass - it is the Court’s
recollection that Claimant did not precisely deny either the words or the deed.
Also, calling into question Claimant’s selective recall of the events is
his unique description of the glass panels in the door as comprising four (4)
panes of glass: a description not offered by anyone else.
Far more credible
is the contemporaneous report given to and recorded by Mr. Willis that Claimant
punched the window because he fouled out, and that wire was visible within the
pieces of glass lying on the floor, as well as within that part of the pane
which remained in the door. The fact that eleven (11) days later Mr. Forte saw
only bits of glass in the pane area is of no moment when glass and wire were
seen on the day of the accident.
The expert opinion in this case is drawn
from a somewhat confined engineering expertise, from observation of the area
during one visit made well after the date of the incident, when conditions had
changed, and from photographs also taken some time after the accident. It is
also based on presumptions simply unsupported by the record, such as assuming
that no inspections or preventive maintenance had been performed, or that
sanding and polishing a floor is a major alteration, or assuming that, most
importantly, because Claimant was able to break the glass it was therefore not a
type of safety glass. Mr. Braunstein’s experience in the area of glass
was limited, by his own admission, and his conclusions suffered from circular
reasoning as a result of this lack of experience, his lack of familiarity with
any regulatory guidelines, as well as a lack of evidentiary foundation. His
testimony is accorded little to no weight.
Claimant did not establish what
standards applied to the doors at issue and did not establish that the locker
room door failed to comply with those standards. Even assuming that the
regulations referred to applied to this door and the glass pane within,
Claimant did not establish that the pane did not consist of safety glass. Simply
repeating that because the pane broke it could not have been safety glass does
not satisfy even the most careless standard of proof. Eyewitnesses reported
that there were wire pieces in the remains, and that wired glass generally was
used throughout the building. From what regulatory materials were presented that
might have applied, wired glass appears to be a kind of safety glass in any
12 NYCRR 47.5(j). Moreover, even if this was somehow not
safety glass, the fact that glass of some kind was there was readily apparent
and acknowledged by Claimant; yet he chose to place his hand - or more likely
hand and arm given the report of bleeding along his forearm - with what this
Court believes was more force than a slight push against a visible, glass
Based on the foregoing, Claimant has failed to establish by a
preponderance of the credible evidence that there was a dangerous condition at
the women’s locker room doors at Baruch College, about which Defendant
either had knowledge or a duty to warn, and that such was a proximate cause of
his injuries on December 6, 2002. Claimant was injured solely because of his
own actions, in failing to heed an open and obvious danger that he could be
injured by broken glass of whatever kind, when he punched the glass pane on the
locker room doors. See Hampton v State of New York
UID#2003-016-045, Claim No. 101970 (Marin, J., June 17, 2003).
108620 is hereby dismissed in its entirety.
Let Judgment be entered