McKEE v. THE STATE OF NEW YORK, #2007-009-175, Claim No. 109924
The State was found 60% responsible for a fall suffered by claimant on the SUNY
Cortland campus, due to the dangerous condition of a doorsill.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
NICHOLAS V. MIDEY JR.
THE ROTHSCHILD LAW FIRM, P.C.
BY: Martin J. Rothschild, Esq.,Of Counsel.
HON. ANDREW M. CUOMO
Patricia M. Bordonaro, Esq.,
October 1, 2007
See also (multicaptioned
This is a claim for personal injuries sustained by claimant based upon
allegations that the defendant negligently designed, constructed, and maintained
the entranceway to Neubig Hall, a building on the campus of the State University
of New York at Cortland (SUNY Cortland). Claimant alleges that as a result of
the defendant’s negligence, she tripped and fell on August 24, 2004, as
she exited this building.
The trial of this claim was bifurcated, and this decision therefore addresses
solely the issue of liability.
Claimant testified that she had transferred to SUNY Cortland in August, 2003,
from Onondaga Community College. She had therefore attended SUNY Cortland for
one year, but did not live on campus, as she lived with her parents in Syracuse,
New York and commuted to school. On the day of her fall, she had made plans
with a friend, Lydia Sorrendino, to meet on campus, print schedules, and
purchase text books. Claimant testified that she entered the bookstore at
Neubig Hall through the back entrance, and was in the store for approximately
one-half hour purchasing her textbooks. Claimant and Ms. Sorrendino exited the
book store with their books, and departed Neubig Hall through the northwest or
Claimant testified that Ms. Sorrendino passed through the doorway first, and
held the door open for her. Claimant testified that as she passed through the
entranceway, she glanced down but did not see a
in the entranceway, and
that her foot “teetered” on the edge of the sill, in the area of
some missing cement. Her leg then buckled, and she fell down onto her left
knee, with her hands out in front of her. She testified that when she started
to fall, she felt the step “crumbling” under her feet.
While she waited for medical assistance, claimant testified that she looked
back at the entranceway and observed the condition of the “sill” in
the area in which she tripped and fell. She testified that she was carrying two
bags of books, and was wearing sandals (“flip-flops”) at the time of
Claimant also testified that she had only been to Neubig Hall on two prior
occasions, both occurring in 2003, when she purchased her textbooks for the
2003 school year and obtained her school identification card.
Lydia Sorrendino, claimant’s friend who accompanied her to Neubig Hall on
the day of this incident, also testified. Her testimony essentially mirrored
that of claimant. She confirmed that she met with claimant in the bookstore in
the late morning of August 24, 2004, which was the first day of classes for the
fall semester. After purchasing books, Ms. Sorrendino testified that she and
claimant exited Neubig Hall through the northwest entranceway. Ms. Sorrendino
testified that she went through the door first, held it open for claimant, and
when she looked back, noticed that claimant was falling. She remained with
claimant until and while she received medical assistance. Craig Biviano was
employed by Auxiliary Services, which has offices located in Neubig Hall.
Although he did not witness this accident, he was working on that day, and
arrived at the scene shortly after claimant’s fall. Ms. Biviano testified
that Neubig Hall housed a bank, in addition to the student bookstore, as well as
a dining hall which served approximately 2,500 to 3,000 meals per day. Mr.
Biviano further testified that the step on which claimant fell had previously
been painted with yellow paint, but over time that paint had faded, and at the
time of the accident there were only “patches” of yellow paint on
Paul Van Vulkenburg, an investigator with the university police at SUNY
Cortland, testified that he was on patrol at the time of the accident, and after
receiving a call concerning claimant’s fall, arrived at the scene shortly
thereafter and conducted his investigation. Mr. Van Vulkenburg testified that
he spoke with claimant, who told him that she fell because she did not notice
the step in the entranceway. Mr. Van Vulkenburg also testified that he spoke
with Craig Biviano (who previously testified at this trial), and that Mr.
Biviano told him that he (Mr. Biviano) or his employer had made prior requests
to have this step repainted yellow, without any success.
Steven C. Lundberg, the Assistant Director of Maintenance at the SUNY Cortland
campus, also testified. Mr. Lundberg was the interim director of the physical
plant at the SUNY Cortland campus at the time of this accident. Mr. Lundberg
testified that the step in question is more accurately described as a
“door sill”, which in this case was a granite “sill”
which created a step down to a slate patio outside the entranceway doors. Mr.
Lundberg provided the dimensions for this step or “sill”, which he
measured as 9' 8" in width, a depth (essentially the width of the top surface)
of approximately 18 inches, and a rise of 5 1/4 inches. Mr. Lundberg
further testified that these steps or “sills” were present in other
entrance/exit areas throughout the SUNY Cortland campus, but there were several
areas that did not have such steps or sills.
Mr. Lundberg also testified that the maintenance department utilized rock salt
in this area during the winter months, and that the use of rock salt would cause
a deterioration of the yellow paint which was present on the sill.
Additionally, on one of the photographs of the entranceway (Exhibit 2), Mr.
Lundberg identified an area of the sill in which there was some deterioration of
the granite, which he called “spalling”.
Although Mr. Lundberg acknowledged that yellow paint appeared on this sill, he
did not know how or when the sill was painted. He was unable to locate any work
orders directing that the sill be painted. Mr. Lundberg also testified that,
according to records on file, there were no other accidents occurring at this
site prior to claimant’s fall of August 24,
Frederick G. Bremer, an architect licensed in the State of New York, testified
as claimant’s expert. In his opinion, he considered this doorsill an
“obstacle” to pedestrians, and that known obstacles “should be
designed out” of buildings. Furthermore, in his opinion, this doorsill
would have been deemed an obstacle even at the time the building was originally
Mr. Bremer further testified that, in his opinion, areas of high traffic
density such as this exit/entranceway should be as “smooth” as
possible, and that a step in a passageway should not be present in such close
proximity to the door. It was his opinion that this sill was not completely
visible, since the door had to be open and a pedestrian had to actually look
down while passing through the doorway to observe the step. Mr. Bremer also
noted that the back entrance to Neubig Hall does not have a sill similar to the
one at the northwest or main entrance.
Mr. Bremer concluded that three particular problems were present due to the
construction and location of this sill. First, as previously mentioned, the
doorsill created an obstacle to the path of travel; second, it was hidden by the
door to anyone exiting the building; and third, the “spalling”
created an uneven edge to the granite sill.
Mr. Bremer testified that the design of this sill at this location served no
legitimate purpose, and specifically that it could not have been designed to
prevent snow accumulation at the doorway. Mr. Bremer noted that the sill would
not actually stop snow from piling up in front of the door, since the door would
swing open past the sill itself.
Mr. Bremer also testified that due to the location of the sill and the
construction and location of the door, the drop-off created by the sill was
extremely hard to identify. Therefore, in his opinion, this sill constituted an
obstacle which, at a minimum, should have been delineated with appropriate
lighting and/or painting.
Scott D. MacPherson, a licensed architect, testified as an expert on behalf of
the State. Mr. MacPherson testified that Neubig Hall had been built
between 1958 and 1961, and that the northwest entrance/exit remained
structurally unchanged up to the date of the accident, even though new doors had
been installed at some point prior to the accident. He confirmed that the
doorsill was made of granite. He considered granite to be a better material
than concrete, since the granite was less likely to crumble or spall and was not
as likely to deteriorate from exposure to salt and water. Although he did not
actually know why the sill was designed and constructed at this entrance/exit,
he speculated that its location at the doorway could help to reduce the
possibility of snow and/or ice accumulation in front of the door. It was also
Mr. MacPherson’s opinion that the possibility of snow and ice accumulation
justified the decision to have the slate patio at a level lower than the
entranceway, necessitating the design and construction of the doorsill.
Contrary to claimant’s expert, Mr. MacPherson testified that, in his
opinion, the doorsill did not present a tripping hazard. It was the opinion of
Mr. MacPherson that this sill was not hidden from view, but was easily
identified by anyone entering or exiting through the doorway. Furthermore, Mr.
MacPherson indicated that the difference in height between the doorsill and the
slate patio was even more obvious to a pedestrian, due to the difference in
color and materials. In Mr. MacPherson’s opinion, these differences
provided the “visual and textural cues” that allowed pedestrians to
easily notice the difference in height between the granite sill and the slate
As a result, in his opinion, there was no need or requirement to paint this
step yellow, or place any other warning signs or markers at or near the step to
advise pedestrians of the change in height. Mr. MacPherson concluded that there
was no architectural requirement that this doorsill be marked or highlighted in
any way, nor was there any particular need to have any such warnings or markers
in this particular location.
Mr. MacPherson acknowledged that there was some “mild spalling” on
the doorsill, but that such spalling was insufficient to create a tripping
hazard. He further testified that both the height and width of the sill were
standard dimensions for such a doorsill.
The State, in its role as a landowner, is subject to the same rules of
liability as apply to a private citizen (Preston v State of New York, 59
NY2d 997). Just like a private citizen, it has a duty to maintain its premises
in a reasonably safe condition, in view of all the circumstances (Basso v
Miller, 40 NY2d 233). However, the State is not an insurer of the safety of
its premises (Killeen v State of New York, 66 NY2d 850), and negligence
cannot be inferred solely from the occurrence of an accident (Mochen v State
of New York, 57 AD2d 719).
In order to establish liability, there must be proof of the existence of a
foreseeable dangerous condition, that the State had notice (either actual or
constructive) and an opportunity to correct the condition, and that the
condition was a proximate cause of the accident (Herman v State of New
York, 94 AD2d 161, affd, 63 NY2d 822). In order to establish
constructive notice, a defect must be visible and apparent, and must have
existed for a sufficient time prior to the accident to permit the defendant to
discover and remedy it (Gordon v American Museum of Natural History, 67
Further, “there is no ‘minimal dimension test’ or per se rule
that a defect must be of a certain minimum height or depth in order to be
actionable” as the existence of a dangerous condition depends on the
particular facts of the case (Vachon v State of New York, 286 AD2d 528,
530, quoting Trincere v County of Suffolk, 90 NY2d 976, 977).
In this particular case, there is no dispute that the State had an obligation
to maintain the northwest entrance/exit to Neubig Hall in a reasonably safe
condition. Both experts agreed that the State had not breached any regulation
or code in the design and construction of the doorsill where claimant fell. The
experts, however, held widely divergent opinions as to the rationale for the
design and construction of the doorsill at this location, as well as whether
such design and construction constituted an unacceptable hazard to pedestrian
traffic. Mr. MacPherson, the defendant’s expert, was of the opinion that
the location of the doorsill at this entrance/exit may have been intended to
prevent the potential build up of ice and snow at this doorway. Mr. MacPherson
acknowledged, however, that these doorsills, while placed at some
entrances/exits on the SUNY Cortland, were not utilized at other locations on
the campus. Furthermore, Mr. Bremer, claimant’s expert, testified that
the design and construction of the sill at this particular location would be
ineffective in preventing an accumulation of snow and ice. Additionally, he
could think of no other rationale for having this doorsill, with its height
differential, located at this doorway.
The Court accepts Mr. Bremer’s testimony and explanation that this
doorsill would be ineffective in preventing an accumulation of snow and ice, and
accordingly finds that the sill at this entrance/exit does not serve any
specific function or purpose. Even so, the failure to identify a specific
function or purpose for the doorsill does not necessarily make it an inherently
The Court has therefore extensively reviewed the photographs received into
evidence at trial, and in particular Exhibits 2 and 3. Based upon this review,
the Court finds that this doorsill was difficult to visualize, especially when
viewed from the perspective of a pedestrian leaving Neubig Hall, who would be
required to step down. The Court therefore finds that this doorsill was hidden
and obstructed pedestrian traffic, and that it therefore constituted a hazardous
Additionally, based upon an examination of the photographic evidence, it is
apparent to this Court that this step had been painted with yellow paint at some
point in time prior to claimant’s fall. There are small patches of yellow
paint, although badly worn, still visible.
Although there were no work orders produced that documented the painting of
this doorsill, and none of the State employees called as witnesses could recall
such work ever being ordered or requested, the Court nevertheless finds that
this step had been painted yellow in the past, with the only logical conclusion
to be drawn that such painting was intended to warn pedestrians of the height
differential between the sill and the patio.
Furthermore, visible deterioration, or “spalling” as defined by the
experts, is also evident in the photographic evidence.
It is readily apparent that the spalling on the granite sill, as well as the
deterioration of the yellow paint, occurred over a lengthy period of time, and
that such deterioration should have been visible to those State employees
charged with the maintenance and safety of Neubig Hall. The Court therefore
finds that, at a minimum, the State had constructive notice of this condition
(Gordon v American Museum of Natural History, supra).
Therefore, based upon the testimony and photographic exhibits received into
evidence, and in accordance with the foregoing, the Court finds that existence
of the doorsill at this particular location in Neubig Hall constituted a
dangerous condition of which the State had, at a minimum, constructive notice.
The Court further finds that this condition was a proximate cause of the
injuries suffered by claimant in her fall, and that the State is therefore
liable and must respond in damages.
Based upon this finding, the Court must therefore also consider the comparative
negligence, if any, of the claimant. Claimant, by her testimony, acknowledged
that she had previously visited Neubig Hall, although she testified that this
was her first visit to the bookstore in Neubig Hall for the current semester.
Furthermore, she was wearing “flip-flops” at the time of the
accident, and was leaving the bookstore with books in both arms, which in all
likelihood limited her ability to see where she was going, and, in particular,
observe the doorsill. The Court finds that all of these actions contributed to
her fall, and that she was therefore comparatively negligent in failing to
observe the doorsill, and/or in failing to remember that the doorsill was
located in this doorway. As such, the Court finds that claimant must bear a
significant portion of the liability for her fall and resulting injuries.
Accordingly, after carefully considering all of the proof herein, the Court
finds that the defendant State of New York is 60% responsible for the injuries
suffered by claimant in this accident, and that claimant is 40% responsible for
Any motions not heretofore ruled upon are hereby denied.
The Clerk of the Court is hereby directed to enter an interlocutory judgment on
the issue of liability in accordance with this decision. The Court will set
this matter down for trial on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY
October 1, 2007
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
. Unless otherwise indicated, all references
and quotations are taken from the Court’s trial notes.
. During the testimony of Paul Van
Vulkenburg, testimony was taken regarding an accident which occurred at this
same site subsequent to claimant’s fall of August 24, 2004. Although this
testimony was allowed at trial, the Court has found such testimony to be of no
probative value whatsoever in its consideration of this claim.