New York State Court of Claims

New York State Court of Claims

CABANISS v. THE STATE OF NEW YORK, #2007-041-511, Claim No. 111727


Claim is dismissed for failure to prove missing cobblestone over which claimant tripped and fell constituted 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:
HACKER & MURPHY, LLPBy: John F. Harwick, Esq.
Defendant’s attorney:
New York State Attorney GeneralBy: Dennis M. Acton, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 18, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Gloria Cabaniss (claimant), on September 16, 2005, while walking across a cobblestone courtyard on the State University of New York at Albany (SUNY) uptown campus, tripped and fell in an area with a missing cobblestone, injuring her left knee.

The law involving such matters in New York is straightforward and well settled.

“Having waived its sovereign immunity the State is subject to the same rules of liability as apply to private citizens” (Preston v State of New York, 59 NY2d 997, 998 [1983]). “It is beyond dispute that landowners and business proprietors have a duty to maintain their properties in reasonably safe condition” (Di Ponzio v Riordan, 89 NY2d 578, 582 [1997]; Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 876 [3d Dept 2004]). However, “[w]hile the State clearly owes a duty to claimants and others entering upon its property to maintain it in a reasonably safe condition under the circumstances, it is not obligated to insure against every injury which may occur” (Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]).

The State’s liability for a slip and fall is premised upon proof that it either created the alleged dangerous condition or knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New York, 188 AD2d 918, 919 [3d Dept 1992]).

Where there is insufficient proof that the defendant created or had actual notice of the condition, liability turns on the issue of whether defendant had constructive notice. “To constitute constructive notice, 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” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Moons v Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]).

The Court is satisfied that the defendant had constructive, if not actual, notice of the specific area over which claimant tripped. Although there was substantial testimony and documentary evidence addressing defendant’s awareness, generally, of missing cobblestones in the courtyard (work orders, Exhibits 8 and 9, reflect that general awareness), there was no direct evidence presented that defendant had notice of the specific area over which claimant tripped or for that matter, direct evidence concerning the length of time the cobblestone was missing where claimant fell. The cobblestone courtyard in which claimant fell is large, measuring between 1.2 and 2.3 acres, rendering the ability to directly prove defendant had actual notice of an individual missing cobblestone difficult. Be that as it may, vegetation growing in the area of the missing cobblestone at the site of claimant’s fall, reflected in the photograph which is Exhibit 1, persuades the Court that defendant knew or should have known, and therefore, at a minimum, had constructive notice of the condition of which claimant complains.

As such, in order to find defendant liable, this case ultimately devolves to a singular question. Was the missing cobblestone over which claimant tripped and fell a dangerous condition? The Court concludes that the claimant has failed, by a preponderance of the credible evidence, to prove that it was.

Through the pretrial deposition testimony of one of defendant’s employees, Richard Ackerman, one of two SUNY masons responsible for replacing missing cobblestones adjudged necessary to replace, claimant sought to establish that she tripped over a dangerous condition.

First, although having previously described the site of claimant’s fall during his deposition as a “tripping hazard,” Mr. Ackerman refined his trial testimony to describe the area as a “hazard,” not a “tripping hazard,” adding that the missing cobblestone was “one, small cobblestone,” measuring, length by width, 3.5 inches by 3.5 inches or 4 inches by 4 inches, and that, as a matter of practice, not all missing cobblestones were replaced.

Next, it is the province of the trier of fact, be it judge or jury, not a trial witness, to determine whether a condition complained of constitutes a dangerous condition, notwithstanding a witness’s description of it as a “tripping hazard.”

To that point, while a given condition may be accurately described as a “tripping hazard,” that fact does not mean, invariably, that it is a dangerous condition. An untied shoelace may be a tripping hazard. A raised sidewalk of one-half inch may be a tripping hazard. An individual with deficient ambulatory dexterity may self-create a tripping hazard. However, it is for the trier of fact to determine whether any of these conditions, or any other, based upon all of the facts and circumstances of a given case, constitute a dangerous condition. (Moons v Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]).

Based upon the evidence presented, the Court is unable to conclude that claimant tripped and fell over a dangerous condition. Although the approximate length and width of the one missing cobblestone was provided, of critical importance, and lacking, was any evidence, testimonial or documentary, of the depth of the space, whether a fraction of an inch or six inches, created by the missing stone (and the depression thereby created) into which claimant allegedly placed her left foot.[1] Two-dimensional photography, with no measuring aides placed in the photographs comprising Exhibits 1 through 7 would require the Court to “guesstimate” the depth of the depression. The Court declines to do so or to speculate as to the depression’s depth. In fact, only Exhibit 1, a photograph taken within days of claimant’s fall, is a contemporaneous representation of the missing cobblestone area. Taken within inches of the ground, it provides absolutely no depth perception or contrast which could potentially aid the Court in assessing the depression’s depth. The balance of the photographs, Exhibits 2 through 7, were taken in December, 2005, three months following claimant’s fall. They, therefore, are less reliable in accurately depicting the depth of the cobblestone area where claimant fell, as it existed on September 16, 2005. Further, they too are of little aid to the Court in assessing the depth of the area over which claimant fell.

The defendant has argued that the defect involved here is trivial. There is no “rule that a defect must be of a certain minimum height or depth in order to be actionable” (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]). The existence of a dangerous or defective condition is determined by an examination of the particular facts and circumstances of the claim, including the width, depth, elevation and appearance of the condition, together with the specific circumstances of the accident and injury. “Of course, in some instances, the trivial nature of the defect may loom larger than another element. Not every injury allegedly caused by an elevated brick or slab need be submitted to a jury . . . [h]owever, a mechanistic disposition of a case based exclusively on the dimension of the . . . [alleged] defect is unacceptable” (Trincere, 90 NY2d at 977-978 [1997]; see Grover v State of New York, 294 AD2d 690 [3d Dept 2002]; Denmark v Wal-Mart Stores, 266 AD2d 776 [3d Dept 1999]).

It is also well established that the owner of a public passageway cannot be held liable for a trivial defect on a public walkway, unless the defect constitutes a trap or nuisance (Trionfero v Vanderhorn, 6 AD3d 903, 903-904 [3d Dept 2004]; see Alig v Parkway Parking of N.Y., Inc., 36 AD3d 980 [3d Dept 2007]). The State will not be held liable for a trivial defect where the defect is “open and obvious and capable of being avoided” (Vachon v State of New York, 286 AD2d 528 [3d Dept 2001]).

Claimant fell on September 16, 2005, in daylight and dry weather, neither wearing sunglasses nor burdened with items in her arms, either of which could have obscured her view. Exhibits 2 through 7 depict a large, expansive cobblestone courtyard, which, when viewed from a distance, easily reveals missing cobblestones, and which, missing cobblestones, has the effect of interrupting what would otherwise be a consistent visual pattern to a pedestrian traversing it. As such, the missing cobblestones at SUNY, including the specific area over which claimant tripped and fell, were an open and obvious condition.

Based upon all of the foregoing, the claimant has failed to prove by a preponderance of the credible evidence the existence of a dangerous condition. The claim is therefore dismissed.

Let judgment be entered accordingly.

October 18, 2007
Albany, New York

Judge of the Court of Claims

[1].The Court rejects the suggestion set forth in footnote one of defendant’s posttrial memorandum, which seeks to direct the Court’s attention to photographs attached to the claim as Exhibit B as a means to assess the depth of the depression as insignificant. The claim itself was never offered or admitted into evidence at trial. It is, therefore, not part of the trial record, and is, therefore, not part of the Court’s consideration in determining the matter.