New York State Court of Claims

New York State Court of Claims

RICE v. THE STATE OF NEW YORK, #2006-032-505, Claim No. 107632


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Leonard J. Levenson, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Dennis M. Acton, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
June 19, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, Diane Rice, served a Notice of Intention on the Attorney General's Office, in which she stated that "[t]he claim arose as a result of a fall by claimant when visiting her husband [at Walkill Correctional Facility] and was caused by broken and defective stone steps which caused her to fall and injure herself." Court Exhibit 1, paragraph 3. Claimant filed a Notice of Claim which stated, "[t] he claim arose as a result of a fall by claimant when visiting her husband and was caused by the negligence of the State of New York when it failed to repair broken and defective stone steps which caused her to fall and injure herself." Court Exhibit 2/ paragraph 3. However, in the Verified Bill of Particulars, claimant stated that "[the] claim arose on March 30, 2002, at 9:15 A.M. at Walkill Correctional Facility on the pathway leading to the visiting room" (Court Exhibit 3/paragraph 3 [emphasis added]).
At trial, claimant testified that she fell at the location marked in Exhibits 3 and 4 (T, 11-15), on a sidewalk leading to a stairway at a seam in the concrete that was allegedly 2-2.5 inches high. Claimant was carrying her one-year old daughter, a diaper bag and her pocketbook at the time. Her sister-in-law, Sarah Rice, testified that claimant "tripped over" the marked spots in Exhibits 3 & 4 (T, 37).
Correction Officer Mark Pirog, the Fire and Safety Officer at Walkill, responded to the scene after claimant fell. He testified that claimant indicated that she fell on the sidewalk outside the visitors' entrance but not at the same point that she identified at trial. Three of the laser photographs on Exhibit C show the spot Correction Officer Pirog indicated as the spot where claimant said she fell. The spot is also marked on Exhibits A and B as a block of concrete, not the seam in the sidewalk that claimant identified (T, 62-66). Correction Sergeant Richardson, who testified at trial, also identified the same spot as Correction Officer Pirog as the place she claimed she fell (T, 88-90, Exhibits A-C).
In this negligence action, claimant must establish by a preponderance of the evidence that the acts of defendant's agent caused her injuries (see e.g. Ellis v Collegetown Plaza, 301 AD2d 758 [3d Dept 2003]). In determining whether claimant has carried her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes (see e.g. Burton v State of New York, 283 AD2d 875, 877 [3d Dept 2001]).
To establish a prima facie case of negligence a claimant must establish "(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) an injury suffered by the plaintiff which was proximately caused by the breach" (Kampff v Ulster Sanitation, 280 AD2d 797 [3d Dept 2001]). When the State acts as a landlord, it is not an insurer of pedestrians on the grounds of its institutions (see Bowers v State of New York, 241 AD2d 760 [3d Dept 1997]), but it does have a duty to maintain those grounds in a reasonably safe condition (Basso v Miller, 40 NY2d 233 [1976]). This duty includes the obligation to reasonably cure dangerous conditions that a defendant has created or of which it has had actual or constructive notice (Reinemann v Stewart's Ice Cream Co., 238 AD2d 845 [3d Dept 1997]).
Individuals have a duty to see and be aware of what is in their view and to use reasonable care to avoid accidents (Terrell v Kissel, 116 AD2d 637 [2d Dept 1986]); in other words, "to see what by the proper use of [their] senses [they] might have seen" (Le Claire v Pratt, 270 AD2d 612, at 613 [3d Dept 2000], quoting Weigand v United Traction Co., 221 NY 39 [1917]). Thus, as a general proposition, a landowner has no duty to correct or warn of a condition that is "readily observable (i.e., open and obvious) to a person of ordinary intelligence employing the reasonable use of his or her intelligence" (Patrie v Gorton, 267 AD2d 582 [3d Dept 1999], lv denied 94 NY2d 761; De Rossi v Golub Corp., 209 AD2d 911, 912 [3d Dept 1994], lv denied 85 NY2d 804; Tarricone v State of New York, 175 AD2d 308 [3d Dept 1991], lv denied 78 NY2d 862 [1991]).
Whether a defective or dangerous condition exists is generally considered to be a question of fact that turns on the circumstances of the particular case (e.g., appearance of defect; extent of defect; time, place and circumstance of the injury) (Lamarre v Rensselaer County Plaza Assoc., 303 AD2d 914 [3d Dept 2003]). Some physical defects, however, may be so trivial as to preclude liability as a matter of law (see id.; Mascaro v State of New York, 46 AD2d 941 [3d Dept 1974], affd 38 NY2d 870; Scally v State of New York, 26 AD2d 606, affd 24 NY2d 747). An "owner of a public passageway may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection" (Sullivan v State of New York, 276 AD2d 989 [3d Dept 2000], quoting Liebl v Metropolitan Jockey Club, 10 AD2d 1006 [2d Dept 1960]).
While there are no fixed rules as to depths of depressions in pedestrian areas, it has been held that, in most circumstances, a hole, depression, or non-alignment in a sidewalk or parking lot that results in a difference in height between one inch and two inches cannot support a finding of liability (Allen v Carr, 28 AD2d 155,156, affd 22 NY2d 924; see also Mascaro v State of NewYork, supra).
After weighing the evidence and assessing the witnesses' credibility, the Court determines that there has been no breach of a duty by defendant. Claimant did not prove by a preponderance of the credible evidence that she fell due to a seam in the concrete that was raised by approximately two inches or upon broken and defective stone steps. Indeed, the pleadings and her testimony at trial tell different stories. Sarah Rice's testimony was also not definitive or convincing. The Court credits the testimony of Correction Officer Pirog and Correction Sergeant Richardson. Furthermore, even if there had been a 2.5-inch defect, which was not proven by the evidence, such defect could be classified as trivial.
The claim, therefore, must be dismissed. All motions not heretofore decided are deemed denied.
Let judgment be entered accordingly.

June 19, 2006
Albany, New York

Judge of the Court of Claims