New York State Court of Claims

New York State Court of Claims

LOPORTO v. STATE OF NEW YORK, #2007-039-050, Claim No. 111949


Synopsis


Following a trial on the issue of liability, the Court determines that defendant is 100% liable for claimant’s injuries. Notwithstanding the lack of direct proof offered to show the source of an oil spill alleged to have caused claimant to fall from his motorcycle, the Court concludes that sufficient circumstantial evidence was offered to establish, by a preponderance of the evidence, that the spill was created by defendant.

Case Information

UID:
2007-039-050
Claimant(s):
MICHAEL LOPORTO
Claimant short name:
LOPORTO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111949
Motion number(s):

Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Paul F. Dwyer, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Dennis M. ActonAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 19, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Michael LoPorto seeks damages for injuries he allegedly sustained on April 9, 2004 when he lost control of the motorcycle he was operating. The liability phase of a bifurcated trial was held on June 8, 2007. The proof offered consisted of live testimony from two witnesses on behalf of claimant and one witness on behalf of defendant, excerpts from claimant’s deposition testimony, the deposition testimony of Timothy Tune, an employee of defendant, a report of the incident and two photographs of the parking lot entrance. Claimant offered his own testimony in addition to that of Junior Briceus, a parking attendant who was employed by defendant at the time of the accident. Defendant offered the testimony of its employee, David Mele, who was the Senior Parking Attendant and Maintenance Supervisor for parking services at the time of the accident. Upon consideration of the admissible proof that was offered at trial, the Court makes the following findings of fact as are relevant to its determination of this matter.

On April 9, 2004, at approximately 5:00 PM, claimant entered a parking lot known as P-3 South located below the Empire State Plaza in Albany, New York, when his motorcycle suddenly went into a tailspin and he fell to the ground[1] (T 39-41). Claimant noticed a “good amount” of “some kind of oil” on the ground where he fell (T 43-44), which he described as “very slippery” (T 44-45). Claimant did not observe any cones or warning signs in the vicinity of the accident (T 45). As claimant was leaving the parking lot that day, at approximately 6:00 or 7:00 PM, he observed a ground sweeper that was parked approximately 200 feet down the road from the entrance of the parking lot “with what appeared to be some cat litter around” (T 48-52).

Junior Briceus, a parking attendant employed by the New York State Office of General Services (hereinafter OGS), was on duty in the attendant’s booth at the time of claimant’s accident (T 6-7, 18). Approximately 20 minutes after he arrived at work, and prior to claimant’s fall, Briceus observed a ground sweeper drive by the parking lot (T 22-23). He did not witness claimant’s fall, but he did observe claimant on the ground soon thereafter (T 7-9). As Briceus approached claimant to offer assistance, he noticed that Timothy Tune, a coworker, had already arrived to offer assistance to claimant, and that a “hydraulic leak” was on the floor of the parking garage, near the area where claimant had fallen (T 10-12). Briceus had no knowledge of the presence of a spill at the entrance of the parking lot prior to claimant’s accident (T 34-35).

The deposition testimony of Timothy Tune was admitted into evidence, without objection, pursuant to CPLR 3117. At the time of the accident, Tune was employed by defendant as a member of the labor crew and he was responsible for sweeping the parking lot (D 6). He first noticed the spill soon after the accident happened, while claimant was lying on the ground (D 9). Tune described the spill as “clear . . . like . . . oil or hydraulic fluid” and “slippery” (D 15), and he believed that a ground sweeper caused the spill (D 12, 16, 20). He observed that the fluid extended approximately 100 feet from the entrance of the parking lot out onto the side of the road where an OGS ground sweeper was parked (D 15-16). Tune also observed that the sweeper had sand around it (D 20).

Defendant’s witness, Mele, arrived at the scene approximately five minutes after he received a phone call notifying him of the spill (T 78). Upon his arrival, Mele observed a streak of oil or hydraulic fluid down the center of the road and tire tracks going into the parking lot from vehicles that had driven through the substance (T 80). He then spread speedy dry at the entrance of the parking lot and onto the road leading up to the entrance (T 80).

It is well settled that “ ‘the existence of a patch of oil or a slippery foreign substance on a floor does not, in and of itself, give rise to a cause of action sounding in negligence’ ” (Goodman v 78 W. 47th St. Corp., 253 AD2d 384, 386 [1998], quoting Mercer v City of New York, 223 AD2d 688, 689 [1996], affd 88 NY2d 955 [1996]). “To establish a prima facie case in an action to recover damages for personal injuries caused by a slip and fall, the plaintiff must prove that the defendant either created the condition which caused the accident, or that it had actual or constructive notice of the hazardous condition and a reasonable time within which to correct it” (Campanella v 1955 Corp., 300 AD2d 427 [2002]). A defendant’s creation of a dangerous condition constitutes actual notice (see Mercer v City of New York, 223 AD2d at 690 [1996], affd 88 NY2d 955 [1996]; Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 [1984], affd 64 NY2d 670 [1984]). “ ‘To constitute constructive notice, [however,] a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it’ ” (Crawford v AMF Bowling Ctrs., Inc., 18 AD3d 798, 799 [2005], quoting Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

The Court has considered the competent proof adduced at trial and concludes that claimant has established, by a preponderance of the evidence, that defendant is liable for his injuries. There was no dispute that defendant owned and operated the property where the accident occurred, that a liquid was present on the ground in the area of claimant’s fall, and that the liquid substance was the cause of claimant’s accident. In any event, claimant offered sufficient proof to establish each of these elements of his claim.

The parties assert that the issue for the Court’s consideration is whether sufficient proof was offered to establish that defendant had notice of the spill. The Court, however, is unable to conclude that defendant had constructive notice of the spill because there was no proof offered to establish that the spill was “visible and apparent . . . for a sufficient length of time prior to [claimant’s] accident” (Crawford v AMF Bowling Ctrs., Inc., supra, quoting Gordon v American Museum of Natural History, supra). During recross-examination, Briceus testified that he had no knowledge of a slippery substance at the entrance of the parking lot prior to claimant’s accident (T 34-35), and Tune testified during his deposition that the first time he noticed the spill was after claimant’s accident (D 9). Nor is the Court able to discern from the testimony offered when the ground sweeper passed by the parking lot. Although Briceus testified with certainty that he observed the sweeper prior to claimant’s accident, he was unable to recall the specific time of day, estimating that he observed the sweeper “about 5, 5 or 4:30" (T 17). If the accident occurred at approximately 5:00 PM, as claimant alleges, then the Court is unable to find, based upon the foregoing proof, that the spill was apparent for a sufficient length of time prior to the accident.

Notwithstanding the lack of direct proof offered to show the source of the spill,[2] the Court concludes that sufficient circumstantial evidence was offered to establish, by a preponderance of the evidence, that the spill was created by defendant. “A prima facie case of negligence based on circumstantial evidence is established when plaintiff’s evidence proves that it is ‘more likely’ or ‘more reasonable’ that the injury was caused by defendant’s negligence than by some other agency” (New York Tel. Co. v Harrison & Burrowes Bridge Contrs., 3 AD3d 606, 608 [2004]; see also Oliveira v County of Broome, 5 AD3d 898, 899 [2004]). “ ‘[I]t is enough that plaintiff shows facts and conditions from which negligence of defendant and causation of the accident may reasonably be inferred’ ” (New York Tel. Co. v Harrison & Burrowes Bridge Contrs., supra, quoting Kadyszewski v Ellis Hosp. Assn., 192 AD2d 765, 766 [1993]).

All three of the witnesses employed by the State, including defendant’s own witness, Mele, described the spilled substance as oil or hydraulic fluid (T 12, 73; D 15). Approximately 20 minutes after he arrived at work and before claimant’s accident, Briceus observed a ground sweeper drive by the area of the parking lot (T 22-23). Tune believed the spilled substance was “[s]omething from a sweeper” (D 12). Soon after the accident, Tune observed a trail of the fluid from the entrance of the parking lot, where claimant’s accident occurred, to an OGS ground sweeper that was parked a short distance down the road and surrounded by sand (D 15-16, 20). Mele arrived at the location of claimant’s accident approximately five minutes after receiving a phone call from the Plaza Manager’s Office that a spill had occurred (T 78-79). Upon his arrival, Mele also noticed a streak of what he described as oil or hydraulic fluid down the center of the road leading to the entrance of the parking lot with “some tire tracks where the vehicles that were coming into the parking lot [were] making tire tracks with it” (T 73). In response, Mele spread speedy dry at the entrance of the parking lot and onto the road leading to the entrance of the parking lot in an effort to absorb the spilled substance (T 73-74, 80). Thereafter, when claimant decided to leave work between 6:00 and 7:00 PM, he observed a ground sweeper that was parked a short distance down the road from the entrance to the parking lot and a substance he described as “cat litter” (T 48-52). Based upon the foregoing, the Court concludes that sufficient proof exists from which it may reasonably be inferred that defendant’s OGS ground sweeper created the spill and, in turn, that defendant’s negligence caused claimant’s injuries.

Accordingly, the Court finds that defendant is 100% liable for claimant’s injuries, and the Chief Clerk of the Court is directed to enter an interlocutory judgment in conformity herewith. Any motions not previously ruled upon are hereby DENIED. The claim will be scheduled for trial on the issue of damages as soon as possible.

Let judgment be entered accordingly.


November 19, 2007
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims




[1]. All references to the single volume trial transcript are designated as “T ___” and to the single volume deposition testimony of Timothy Tune as “D ___.”
[2]. The only evidence offered in this regard is from an Internal Report of Damages, Theft and/or Injury dated May 3, 2004 and signed by Briceus (see Claimant’s Exhibit “1"). Even if the report is deemed admissible, the Court is unable to consider Briceus’s statement therein regarding the malfunctioning of a hydraulic hose on a sweeper because the information is not reliable. Briceus’s only job duties at the time of claimant’s accident were to “ID cars and see who was coming in and who [didn’t] belong” in the parking lot (T 5-6).