New York State Court of Claims

New York State Court of Claims

GONZALEZ v. STATE OF NEW YORK, #2007-039-053, Claim No. 104279


Synopsis


Following a trial on the issue of liability, the Court determines that claimant failed to prove her claim by a preponderance of the credible evidence, and the claim is dismissed. Claimant did not offer sufficient proof to establish that the nosing board of the steps from which claimant alleges to have fallen was in a dangerous or defective condition at the time of the accident. Nor is the court convinced by a preponderance of the credible evidence that the absence of a handrail created a dangerous or defective condition. Claimant did not offer sufficient proof to establish that the absence of a handrail was the proximate cause of her alleged injuries.

Case Information

UID:
2007-039-053
Claimant(s):
MARY GONZALEZ, also known as MARIANA RIVERA
Claimant short name:
GONZALEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104279
Motion number(s):

Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Iseman, Cunningham, Riester & Hyde, LLPBy: John F. Queenan, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Glenn C. KingAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 13, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Mary Gonzalez seeks damages as a result of injuries she allegedly sustained on May 14, 2000 at the Greene Correctional Facility when she fell while attempting to descend two steps. Claimant alleges that defendant was negligent because it created the dangerously defective steps and surrounding area which caused her to fall. Defendant argues against liability on the grounds that claimant failed to offer sufficient proof to establish, among other things, that the steps presented a dangerous condition at the time of the accident and that, even if a defect was established, it was trivial.

The liability phase of a bifurcated trial was held on March 28, 2007 and April 26, 2007. The parties stipulated to the admissibility of various photographs, including three Polaroid pictures which depict the stairs on the day of the accident, and certain facts, including the fact that the stairs and platform from which claimant fell were constructed in 1995. The parties also stipulated to the qualifications of their experts. Claimant was the first witness to testify at trial. According to claimant, on May 14, 2000 she went to Greene Correctional Facility to visit her son, who was an inmate at the facility. Also in attendance were her sister, Ruth Rivera, and her niece. Claimant testified that, after exiting the Visit Process Center at the facility, her foot got caught on the landing before she was about to descend two steps, and she fell to the wooden platform below. Claimant lay on the wooden platform for approximately fifteen minutes before an ambulance arrived to render assistance. During this time, claimant observed the stairs she had fallen from and described the edge of the platform as “uneven,” “chipped,” “twisted,” “worn off”and “pitched down.” She further noted the absence of a handrail or warning signs. During cross-examination, claimant testified that, prior to the date of her accident, she had been to the same facility 20 times or less, and that she had traversed the same set of stairs approximately 40 times without incident.

Although Ms. Rivera did not see claimant fall, soon thereafter she observed the condition of the last floor board from which claimant fell and described it as “wedged and warped,” “chipped... in a downward slope” and “tipped.” Ms. Rivera did not observe a handrail or warning signs either.

Claimant’s expert, Irving Paris, went to Greene Correctional Facility during February 2005 for the purpose of conducting an inspection of the stairs. Paris took photographs and measurements of the stairs as part of his inspection. Based upon his findings, Paris opined, in relevant part, that the stairs did not conform to the New York State Uniform Fire Prevention and Building Code (hereinafter Code) that was in effect in 1995 when the stairs were constructed. More specifically, he opined that the Code was violated because the stairway had two risers instead of the required three, the landing, or nosing board, was not level, there were no handrails on the open sides of the steps, and the structure was made of wood, which is not a permissible building material for use at prisons and jails. Paris characterized the condition of the stairs as a “hazard,” a “trap” and a “so-called accident waiting to happen.” Paris further opined that “the proximate cause of [claimant’s] fall was the sloping nose board, or the last edge of the horizontal platform, and the lack of a handrail.” With respect to the lack of a handrail, Paris testified that section 765.4 (13) of the Code requires a handrail on the open side of steps or stairs.

It is well settled that “[a]s a landowner, the State has a duty to use reasonable care under the circumstances in maintaining its property in a safe condition” (Colangione v State of New York, 187 AD2d 844, 845 [1992]; see also Basso v Miller, 40 NY2d 233, 241 [1976]). The State is not, however, “an insurer against any injury which might occur on its property” (Bowers v State of New York, 241 AD2d 760 [1997]). “The imposition of liability in a slip-and-fall case requires evidence that the defendant created the dangerous condition which caused the accident, or had actual or constructive notice of that condition” (Borenkoff v Old Navy, 37 AD3d 749, 750 [2007]; see also Medina v Sears, Roebuck & Co., 41 AD3d 798, 799 [2007]). “ ‘Generally, the issue of whether a dangerous or defective condition exists depends on the particular facts and circumstances of each case, and is properly a question of fact for the jury’ ”(Herring v Lefrak Org., 32 AD3d 900 [2006], quoting Riser v New York City Hous. Auth., 260 AD2d 564 [1999]).

The Court has considered the credible evidence presented at trial and concludes that claimant failed to establish, by a preponderance of the evidence, that defendant is liable. Claimant and Paris identified two defects as the proximate cause of claimant’s fall - the uneven or sloping nose board and the lack of a handrail. The Court finds in the first instance that claimant did not offer sufficient proof to establish that the nosing board was in a dangerous or defective condition at the time of the accident. The Court is unable to discern from the three Polaroid pictures that were taken on the day of the accident whether a condition existed on the nosing board that could reasonably be characterized as dangerous or defective. Nor was claimant’s expert able to offer any reliable evidence to establish that the nosing board was in a dangerous or defective condition at the time of the accident, having inspected the stairs approximately four and one-half years thereafter (see Oboler v City of New York, 8 NY3d 888, 890 [2007]). Paris conceded that when the nosing board is stepped on in a descending manner, and pressure is applied, the back of the board tends to lift up, and that, over time, debris could build up under the back side of the nosing board. He further concluded that there is no way to know whether the condition of the stairs at the time of the accident was the same as the condition of the stairs when he inspected them. Any descriptions of the condition of the nosing board offered by claimant and her sister are largely self-serving and biased and, without more, are not enough to establish, by a preponderance of the evidence, that the stairs were in a dangerous or defective condition at the time of the accident. When the Court also considers claimant’s familiarity with the stairs, having traversed them multiple times prior to her accident, it is unable to conclude that the stairs were defective and constituted a trap (see Mokszki v Pratt, 13 AD3d 709, 710 [2004]).

In addition to the foregoing, Paris testified that the use of wood to construct the stairs constituted a code violation and that, depending on when wood is installed, it may or may not be considered nonslip under the Code. Claimant’s testimony, together with the three Polaroid pictures, establishes that the stairs were made of wood at the time of the accident. However, even if the use of wood constituted a Code violation, the Court is unable to conclude that it was a violation resulting in a dangerous or defective condition. Paris conceded that he did not conduct a friction test of the stairs, and that he did not know what the coefficient of friction of the nosing board was at the time of the accident.

Nor is the Court convinced by a preponderance of the credible evidence that the absence of a handrail created a dangerous or defective condition which warrants a determination of liability. There is no dispute that a handrail was missing. Certainly, “ ‘unless a stairway in a store or other commercial or public premises comes within the purview of a statute requiring that handrails be provided, the owner may not be held liable for maintaining a dangerous stairway because of the absence of a handrail where the steps are in no way defective’ ” (Chaehee Jung v Kum Gang, Inc., 22 AD3d 441, 442-443 [2005], lv denied 7 NY3d 703 [2006], quoting 86 NY Jur 2d, Premises Liability § 445). In this regard, the parties’ experts offered competing testimony as to whether the steps were within the purview of a statute requiring handrails at the time of the accident.

Assuming that the Code required defendant to construct a handrail, the Court nonetheless concludes that claimant did not offer sufficient proof to establish that the absence of a handrail was the proximate cause of her alleged injuries. The Court was not provided with any testimony that claimant “would have been able to recover her footing if the missing . . . handrail[s] had been present” (Piatek v New York City Tr. Auth., 14 AD3d 685, 686 [2005]). Paris offered only nonspecific testimony regarding the utility of handrails. Here, proof of a code violation, without more, leaves the Court to speculate as to whether the absence of a handrail was a proximate cause of claimant’s injuries (see Lissauer v Shaarei Halacha, Inc., 37 AD3d 427, 427-428 [2007]).

Therefore, based on the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, her claim against defendant. Accordingly, the claim is hereby dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.

The Clerk of the Court is directed to enter judgment accordingly.


November 13, 2007
Albany, New York

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