New York State Court of Claims

New York State Court of Claims

ATKINSON v. THE CITY UNIVERSITY OF NEW YORK, #2007-030-040, Claim No. 110038


Synopsis


Claim dismissed after trial. Claimant alleged CUNY negligently maintained, managed and/or supervised the outside steps at York College campus, causing her to slip, fall and suffer injury because of a dangerous wet condition present. The procedures in place for removal of snow were reasonable ones, as were the procedures for removal of accumulated water. Defendant’s duty is to provide a reasonably safe surface for the public to traverse, not a perfect one.

Case Information

UID:
2007-030-040
Claimant(s):
OLGA ATKINSON
Claimant short name:
ATKINSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110038
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
BORNSTEIN & EMANUEL, P.C.BY: MARK J. DeCICCO, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JOSEPH L. PATERNO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
October 1, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Olga Atkinson alleges in Claim Number 110038 that defendant’s agents negligently maintained, managed and/or supervised the outside steps at the York College [York] campus of the City University of New York [CUNY], on February 19, 2003, causing her to slip, fall and suffer injury. Trial of the matter was held on January 30 and 31, 2007. This decision relates solely to the issue of liability.

FINDINGS OF FACT
Ms. Atkinson testified that on February 19, 2003 she was a student at York, on her way home after attending her regular schedule of classes from 9:00 a.m. to 1:00 p.m. She had been attending classes for approximately two years, and walked over the same area almost daily. She said it was a clear day, with a temperature of about 40 degrees. There had been no snow or rain on February 19, 2003, although there had been a snowstorm as recently as the Sunday before. As claimant exited York and proceeded into the open plaza, she noted snow on the platform and stair areas pushed to the far right side, all cordoned off with yellow tape. Her friend Thelma, who was giving her a ride home, walked ahead. Because of the cordoning off, she proceeded to an uncovered platform and stair area at the farthest left hand side of the plaza, just to the right of a covered handicapped ramp. She walked across the first platform and set of three stairs without incident, and proceeded along the platform to the next set. When she placed her right foot on the bottom step of a three-step set of stairs, she slipped and fell forward onto her knees and face. Immediately after her fall, she saw that there was water on the third step, along the entire step, from the point where there was snow piled up to her right, to where she slipped on the left-most portion of the step. There were no handrails in the immediate area where she testified that she slipped and fell. [See Exhibits 2 and 3].

Although during deposition testimony taken on October12, 2005 claimant had testified that she “just fell” and did not feel her foot “catch on something or slip on something” prior to falling, at trial claimant said that she slipped because there was water on the steps. As to the amount of water, at her deposition claimant had said that the platform area had a puddle, but the stairs did not contain a puddle, but rather a little water left over from having been swept away. At trial, claimant described the water along the step as a puddle of standing water, but then agreed that it was not a puddle but rather the remains of one. She said that she had been looking down as she walked, but did not see water on the step. After she fell - landing on the platform area that contained a puddle of water - was when she then observed that there was water on the step. The conclusion that there was water on the step appears to have been drawn, in part, from the fact that her dress was wet after the fall. Claimant would not agree that the water on her dress might have come from the puddle on the platform area rather than the step. Ms. Atkinson was aware of the completely covered handicapped ramp, but chose not to use it.

Within a few minutes of her fall, Edwin Suarez, a patrol officer with the Public Safety Department of CUNY arrived after receiving a radio dispatch about the incident. After attending to the claimant, another employee took photographs of the area, based on what Mr. Suarez testified had been claimant’s indication of where she slipped and fell [Exhibits B and C]. Mr. Suarez wrote an incident report. [Exhibits 1 and A]. Ms. Atkinson, too, indicated that the photographer took photographs in her presence. The photographs depict an area different from the one testified to by claimant, as further demonstrated at trial by Mr. Suarez marking a different section of the outdoor plaza as the location of the fall on claimant’s photographic exhibits. [See Exhibit 2]. The incident report notes that the slip and fall occurred on the “[third] step of A-Core plaza to the left of 8-4 post doors” and that the “area of incident was dry and unobstructed . . .” [Exhibits 1 and A]. Although snow may have been piled up in areas of the plaza that day, he did not specifically recall whether it was or not. Mr. Suarez did not witness the fall in any event.

Joseph Goffredo, the Chief Administrative Superintendent of the Engineering and Buildings and Grounds Facilities Department at York, testified concerning snow removal procedures in February 2003. He explained that the usual procedure would be to move heavy, accumulated snow to the side of the stairs, and to cordon off those portions of the plaza that had not been completely cleared. There is drainage available for piled snow at the side location. Additionally, a shielded passageway runs the entire length of the plaza and stairs adjacent to the location of claimant’s fall, providing clear and unobstructed access in and out of campus. Although there was no written procedure for addressing accumulation of water - such written procedures for snow removal having been implemented by Mr. Goffredo [see Exhibit E] - staff would address clearing standing water by using brooms and squeegees as needed. After reviewing some logbook entries for the applicable day, he agreed that they show that the outside temperature was 39 degrees between 2:00 p.m. and 10:00 p.m. Mr. Goffredo, too, did not witness the fall. There was no record of any accident that day.

No other witnesses testified.
DISCUSSION AND CONCLUSION
Although CUNY has a duty as a landlord to prevent foreseeable risks of harm, it is not the insurer of public safety. 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. To establish a prima facie case of negligence generally the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence.

For premises liability, assuming that CUNY did not create the dangerous condition, a Claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual notice. Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 (1st Dept 1984), affd, 64 NY2d 670 (1984). CUNY has a duty to “act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Miller v State of New York, 62 NY2d 506, 513, 478 NYS2d 829, 833 (1984); Preston v State of New York, 59 NY2d 997, 998, 466 NYS2d 952 (1983). To establish that this duty was breached in the instant case, Claimant must prove that a dangerous condition existed relative to the accumulation of water on the plaza steps, and that CUNY had either created the alleged dangerous condition or had actual or constructive notice of such condition and failed to remedy it.

It is the Claimant’s burden to prove her case by a preponderance of the credible evidence. As the trier of fact and law, charged with assessing the credibility [see Raynor v State of New York, 98 AD2d 865, 866 (3d Dept 1983)] of the various witnesses and evaluating the evidence, the Court finds that the Defendant is not responsible for the Claimant’s fall and resultant injury.

Even assuming that there was some degree of water accumulation on the stairs of the outdoor plaza where claimant fell, created by melting snow, there has been no showing that such condition was a dangerous one within the meaning of negligence principles. Every puddle or water condition is not a hazard, just as every slip and fall is not compensable. The procedures in place for the removal of snow were reasonable ones, as were the procedures attested to for removal of water accumulation if observed. CUNY is not required to provide a perfect surface for the public to traverse, but only one that is reasonably safe. Indeed, the temperature was well above freezing, snow had been pushed aside, and the plaza area marked off. A completely dry and safe alternative for entering and exiting the campus was available at the ramp, and was an alternative about which the claimant was aware after two years on campus.

Any wet condition here was “readily observable ‘by those employing the reasonable use of their senses’ . . . (citations omitted).” See Persing v City of New York, 300 AD2d 641, 642 (2d Dept 2002); Dominitz v Food Emporium, 271 AD2d 640 (2d Dept 2000); Costello v Grand Cent. Plaza, 268 AD2d 722 (3d Dept 2000). Claimant was familiar with the plaza and entrance area at the school. She said she did not notice the water on the step, and only after her fall did she speculate that it was water that caused her to fall. Again, and this assumes that there was some water in the area, had claimant been employing the reasonable use of her senses, she would have seen something. Indeed, other than her speculation as to the cause, it is not established what caused her to fall.

Additionally, the wet condition alleged herein is too trivial to be actionable. Whether a particular condition is so dangerous “. . . as to create liability ‘depends on the peculiar facts and circumstances of each case’. . . (citations omitted).” Trincere v County of Suffolk, 90 NY2d 976, 977 (1997). The alleged condition was minor, open and obvious.

While it is unfortunate that claimant fell and injured herself, the mere fact of such accident cannot alone establish the Defendant’s liability.

Defendant’s motion to dismiss, upon which decision was reserved at trial, is hereby granted and Claim Number 110038 is in all respects dismissed. All trial motions not otherwise disposed of or withdrawn are hereby denied.

Let Judgment be entered accordingly.

October 1, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims