New York State Court of Claims

New York State Court of Claims

DUSKIN v. THE STATE OF NEW YORK, #2007-040-040, Claim No. 109916


Trip and fall in parking lot of State hospital. Dismissed as Claimant failed to establish existence of a dangerous condition.

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:
Joachim, Frommer, Cerrato & Levine, LLPBy: Louis J. Cerrato, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Victor J. D’Angelo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
July 30, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, Katherine M. Duskin, has failed to establish by a preponderance of the credible evidence that the State of New York was negligent in connection with personal injuries she sustained on September 24, 2003 in a slip and fall accident at the State University of New York Hospital at Stony Brook (Stony Brook Hospital). A bifurcated trial, addressing liability issues only, was held on April 3, 2007 at the Court of Claims in Hauppauge. Claimant called four witnesses: the Claimant herself; Ioannis Karagiorgos (a bystander who was present at the time of Ms. Duskin’s accident); James Prudenti (Stony Brook Hospital’s Director of Physical Plant); and Joseph Kelly (Stony Brook Hospital’s Supervisor of the Grounds Department). Defendant did not call any witnesses.

The basic facts of this Claim are easily recounted. Claimant presented at the emergency room (ER) of Stony Brook Hospital on the morning of September 24, 2003 with shoulder discomfort, a longstanding condition. Ms. Duskin was familiar with Stony Brook Hospital, and particularly the ER, having been there on 14 or 15 prior occasions during 2002 and 2003. Claimant arrived alone and was dropped off by taxi at the ER door (visible in Exhibit 5 as the door with the automobile in front of it). Ms. Duskin was at the hospital for several hours. She left the ER, through the same door she had entered, to wait for a taxi.

Claimant testified that she thought there were cars parked all along the curb in front of the ER door (see Ex.5) so that she would not have been able to see clearly from that entrance when her cab arrived. She set off across the blacktop parking area towards a sidewalk, or traffic island, on the other side of the parking lot from the ER entrance (visible to the left of a motorcycle in Exhibit 1) where she intended to wait for the taxi. Ms. Duskin said she had waited for taxis in the same location after other visits to the ER and “assumed”[1] that she also might have walked across the driveway on some of those occasions.

Ms. Duskin testified that she was looking forward, or ahead, towards her destination, as she crossed the blacktop pavement. After walking across the parking lot for thirty or forty feet (down and to the left from the ER door as viewed in Exhibit 5), she stepped with her left foot and tripped and fell forward, striking her left knee and face on the ground. She testified that she tripped on “broken ground, a hole. It was like a dip.” She also characterized the area as “a big hole.” She noted that it was dark where she fell because a cement overhang that is part of the building shaded the area (see Ex.5). Claimant testified that she did not observe any part of the parking lot surface before she fell, and did not notice any cracks, uneven areas or potholes on the parking lot surface. Ms. Duskin marked, with a blue felt pen, the location where she fell on each of Exhibits 1 through 5. Claimant testified that she was hurt and crying after she fell. Several people came to her assistance, including a man who got a wheelchair. She was brought back into the ER about 10-15 minutes after her accident. She could not be sure as to the exact amount of time that elapsed because she was in “so much pain” and “was so devastated [by] what happened.”

Ioannis Karagiorgos testified that, at the time of the accident, he was standing outside the ER’s ambulance reception doors (on the left of the photograph that is Exhibit 5) “close to the parking lot.” His testimony concerning the accident was somewhat confused. On direct examination, Mr. Karagiorgos agreed that Ms. Duskin fell in the area that she had circled on each of Exhibits 1 through 5. He further testified that he was looking in Ms. Duskin’s direction when she fell and was standing between five to ten feet away from her. On cross-examination, however, he explained that he was outside because he wished to smoke and was not permitted to do so in the enclosed space under the overhang. Therefore, he was standing “way out,” beyond the yellow line that is perpendicular to the stanchion that supports the overhang (see Ex. 5). He agreed that Ms. Duskin walked past him and then fell. When asked if Ms. Duskin was past the yellow line when she fell, Mr. Karagiorgos said “it was almost on the line ... only a matter of feet.”

Mr. Karagiorgos stated that Claimant fell on her back and began screaming. He could not say if she was crying. He alerted a security guard who called for assistance. Then, other people came and took Ms. Duskin back into the hospital within two or three minutes after her fall. Mr. Karagiorgos said that he did not go over to Ms. Duskin and did not speak to her at any time on that day. He said that she did not ask him for help and he specifically said that he did not offer to go get a wheelchair. He described the ground where Claimant fell as “rough, very rough.”

James Prudenti has worked for Stony Brook Hospital for 17 years and has been the Director of Physical Plant since 2002. Joseph Kelly has been Supervisor of Stony Brook Hospital’s Grounds Department for 23 years. He is responsible for the maintenance of the outside grounds and reports to Mr. Prudenti. Their testimony was in general accord.

Mr. Prudenti described Stony Brook Hospital as a 20-story facility that contains almost 900,000 square feet of space. He said it was the only major trauma center in Suffolk County in September 2003, and had a burn unit and a helicopter landing pad for the ER. Significant renovations and alterations have been made to the ER area since the date of Claimant’s accident. Both witnesses agreed, however, that the ER parking area that existed in 2003 was maintained by the Grounds Department. Each testified that he was at the hospital on a daily basis at the time of the accident. Mr. Prudenti stated that he would either walk or drive by the ER area depicted in Exhibit 5 a few times a week and Mr. Kelly said he was in the same area on a daily basis.

Mr. Prudenti did not recall any specific inspections of, or procedures concerning, the hospital’s parking areas, but he rejected the suggestion that no one was looking for conditions like those circled by Ms. Duskin on Exhibits 1 through 5. He noted that people from the Physical Plant Department would have had occasion to be in the area and to observe the condition of the pavement. Mr. Kelly testified that he personally inspected the parking area on a weekly basis during the period prior to September 24, 2003 for things that needed to be repaired, including potholes and depressions. He said that, if broken or uneven surfaces were discovered, then a work request would have been written. Both witnesses agreed that smaller repairs typically were made by the Grounds Department but, if the job was too big, an outside contractor was used. Mr. Prudenti testified that, in his capacity as Director of Physical Plant, he was not aware of any accidents having occurred in the area depicted in Exhibit 1 prior to September 24, 2003, nor was he aware of any complaints about the condition of the pavement.

In response to the question whether, prior to September 24, 2003, he had ever observed the surface of the ER parking lot appear like the pavement shown in the photographic exhibits, Mr. Kelly said, “I never noticed it really.” Mr. Prudenti, on the other hand, estimated that he had last been in that area “probably within a week” of Claimant’s accident. While he was sure that he would have been aware of the “uneven pavement” depicted in the exhibits, he also agreed that he did not consider the condition to be one that required immediate attention.

To establish a prima facie case of negligence, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a breach of that duty; and (3) an injury suffered by Claimant which was proximately caused by such breach. In addition, Claimant must show that Defendant’s negligence caused his or her injuries (see Kampff v Ulster Sanitation, 280 AD2d 797; Patrick v State of New York, 11 Misc 3d 296, 320; Rice v State of New York, Claim No. 107632, dated June 19, 2006, Hard, J., [UID No. 2006-032-505]).

The State has a duty to maintain its facilities 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; Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241; Bowers v State of New York, 241 AD2d 760). The State, however, is not an insurer of the safety of those who enter upon its premises and negligence cannot be inferred solely from the occurrence of an accident (see Tripoli v State of New York, 72 AD2d 823; Ebuzoeme v City Univ. of N.Y., 10 Misc 3d 1079[A], 2005 WL 3734348 [NY Ct Cl], 2005 NY Slip Op 52256[U]). Moreover, a claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42; Lolik v Big V Supermarkets, 210 AD2d 703, 704, revd on other grounds 86 NY2d 744; Terrell v Kissell, 116 AD2d 637, 638; Sharrow v New York State Olympic Regional Dev. Auth., 193 Misc 2d 20, 43).

In order to establish a breach of that duty in a slip and fall case, Claimant must prove by a preponderance of the credible evidence that: (1) a dangerous condition existed; (2) the Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (3) such condition was a proximate cause of the accident (see Gordon v American Museum of Natural History, 67 NY2d 836, 837; Dapp v Larson, 240 AD2d 918; Ligon v Waldbaum, Inc., 234 AD2d 347; Bernard v Waldbaum, Inc., 232 AD2d 596).

With respect to dangerous or defective conditions, 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. Rather, it is generally a question for the trier of fact to determine whether such conditions exist based upon “facts presented, including the width, depth, elevation, irregularity and appearance of the defect, along with the ‘time, place and circumstance’ of the injury” (Trincere v County of Suffolk, 90 NY2d 976, 978, quoting Caldwell v Village of Is. Park, 304 NY 268, 274). Some physical defects, however, may be too trivial and slight in nature to be actionable (Lamarre v Rensselaer County Plaza Assoc., 303 AD2d 914; Mascaro v State of New York, 46 AD2d 941, affd 38 NY2d2 870; Scally v State of New York, 26 AD2d 606, affd 24 NY2d 747). An owner of “ ‘a public passageway may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his [or her] toes, or trip over a raised projection’ ” (Trionfero v Vanderhorn, 6 AD3d 903, 903, quoting Guerrieri v Summa, 193 AD2d 647, 647, quoting Liebl v Metropolitan Jockey Club, 10 AD2d 1006, 1006; Rice v State of New York, supra). Moreover, landowners are not obligated to warn against conditions on the land that could be readily observed by the use of one’s senses, nor will they be held liable for injuries arising from a condition on the property that is inherent or incidental to the nature of the property and which could be reasonably anticipated by those using it (Stanton v Town of Oyster Bay, 2 AD3d 835, 836, lv denied 3 NY3d 604).

Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has failed to meet her burden, and did not establish by a preponderance of the credible evidence that Defendant was negligent in connection with her accident.

The Court finds Claimant did not establish by a preponderance of the credible evidence that a dangerous condition existed on the date of the accident. As a preliminary matter, the Court notes that the record creates some doubt as to the precise location where Claimant fell. Ms. Duskin was unequivocal in identifying the spot on each of Exhibits 1 through 5. Yet, on cross-examination, she testified that she did not return to inspect the area after she was brought back into the ER. Rather, Ms. Duskin’s identification is based upon an assessment she made “immediately” after she fell because she “wanted to know what I fell on.” Thus, it was made while she was, quite understandably, hurt, crying, “devastated” by what had happened and in “so much pain,” factors that could adversely affect the accuracy of her observations. Unfortunately, Mr. Karagiorgos’ testimony does not resolve the issue. On the one hand, his testimony on direct examination corroborates Claimant’s assertion that she fell while still under the overhanging roof. On the other hand, the witness stated, on cross-examination, that Ms. Duskin had walked past him before she fell. Since Mr. Karagiorgos stated that he himself was standing beyond the overhang in order to smoke, that would seem to place Ms. Duskin beyond the overhang as well and, thus, outside the area she circled to indicate where the accident took place (see Ex.5).

The Court concludes, however, that the preponderance of the evidence indicates that Claimant has identified accurately the spot where she fell. As stated above, however, the Court has determined that Ms. Duskin failed to establish that a dangerous condition existed there. Rather, it finds that the allegedly dangerous or defective condition was minor, open and obvious.

None of the witnesses described the width, depth, length or extent of the alleged defect. The Court finds the photographic evidence inconclusive on this point. The pavement appears to be somewhat pitted and not perfectly even. It is not possible, however, to determine the magnitude of the irregularities shown in the photographs since there are no objects (such as a ruler or a shoe) visible in close proximity to the affected area that might provide some sense of scale or context. Claimant’s description of broken ground, a dip and a big hole seems to overstate the case, as does her counsel’s account of a “pothole laden surface” (Claimant’s Post-Trial Memorandum of Law, p. 1). The descriptions provided by Mr. Karagiorgos (rough ground) and Mr. Prudenti (uneven pavement) are closer to the mark (see Exs 1-5). The Court concludes that the pavement has the appearance of the kind of slightly irregular surface one frequently encounters in a parking lot or driveway and the conditions described depict only a trivial defect.

Moreover, the Court concludes that such condition did not constitute a hidden trap or snare, but, rather, was open and obvious. Claimant testified that the area was in the shadow of the overhang. The photographic evidence likewise depicts the area in shade (see Exs 1-5). Yet, the slight irregularities in the pavement are clearly visible in the exhibits. Moreover, Exhibit 5 depicts a spacious area where a number of vehicles could be parked at the same time. The roof of the overhang appears to be perhaps half again as high as the ER doors and it extends outwards from the doors for at least two car-lengths. Certainly, the area is not a dark cavern or basement where little or no light would be admitted. In any event, Claimant has indicated that her accident occurred near the outer edge of the overhang where there should have been plenty of light. In addition, the accident occurred in broad daylight and there was no evidence presented to suggest inclement weather or any other adverse conditions existed that would have affected Ms. Duskin’s vision. Neither was there any testimony as to the existence of the opposite problem – too much light – such that Claimant would have been blinded by glare or the sun. In short, the Court determines that the shade cast by the overhang was not a condition that should have impaired Ms. Duskin’s ability to see what there was to be seen, or relieved her of the duty to do so. Thus, the Court concludes that the trivial defect in the condition of the pavement was open and obvious, and rejects any suggestion that shade was a contributory cause to Ms. Duskin’s accident.

Claimant also testified that she was looking towards her destination as she walked and did not observe any part of the parking lot surface. Thus, one possible cause of Ms. Duskin’s accident was a failure on her part to see what was there to be seen.

The Court further determines that Defendant had actual notice of the condition of the pavement. Mr. Prudenti stated that he would have been aware of the uneven pavement as a result of his last visit to the area that was “probably within a week” of Claimant’s accident. Of course, Mr. Prudenti also stated that he did not consider the condition to be one that required immediate attention and the Court agrees that it constituted a trivial defect.

The Claim also contained language that seemed to allege causes of action for medical negligence and medical malpractice. However, no evidence regarding these matters was elicited at trial. Therefore, these causes of action are dismissed for failure of proof. Claimant’s reliance on the doctrine of res ipsa loquitur is unavailing.

Accordingly, Defendant’s motion to dismiss, made at the conclusion of the trial and upon which the Court reserved decision, is now granted and the Claim is dismissed. All other motions and cross-motions are denied as moot.

Finally, the Court addresses several evidentiary matters that were reserved upon at trial. Claimant’s objection to questions concerning the purposes for which Ms. Duskin took several medications is sustained, as is her objection to a question about whether or not she was speaking clearly after the accident. All other objections upon which the Court reserved decision at trial are now overruled.

The Chief Clerk is directed to enter judgment accordingly.

July 30, 2007
Albany, New York

Judge of the Court of Claims

[1].All quotations are taken from the audiotape recording of the trial.