New York State Court of Claims

New York State Court of Claims

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.

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:
BY: Martin J. Rothschild, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
October 1, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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 main entrance.

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 “sill”[1] 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 her fall.

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 the step.

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, 2004.[2]

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 constructed.

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 patio.

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 NY2d 836).

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 dangerous condition.

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 condition.

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 her injuries.

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.


October 1, 2007
Syracuse, New York

Judge of the Court of Claims

[1]. Unless otherwise indicated, all references and quotations are taken from the Court’s trial notes.
[2]. 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.