New York State Court of Claims

New York State Court of Claims

MITCHELL v. THE STATE OF NEW YORK, #2008-009-195, Claim No. 109289


Synopsis


Claimants sought damages for personal injuries suffered by Richard Mitchell when he tripped and fell on a sidewalk maintained by SUNY Cortland. The Court found that the condition of the sidewalk did not constitute a dangerous or defective condition, and that the difference in height between the two concrete slabs where claimant fell was a trivial defect for which the State could not be found liable.

Case Information

UID:
2008-009-195
Claimant(s):
RICHARD MITCHELL and BEVERLY MITCHELL
Claimant short name:
MITCHELL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109289
Motion number(s):

Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
GREENE & REID, LLP
BY: Jeffrey G. Pomeroy, Esq.,Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 23, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In this claim, claimants seek damages for injuries suffered by claimant Richard Mitchell[1] when he tripped and fell on a sidewalk on the State University of New York (SUNY) Cortland campus on August 9, 2003. Claimants contend that a dangerous condition existed at the site of Mr. Mitchell’s fall, and that despite actual and/or constructive notice, defendant failed to take any corrective, remedial action to remedy the condition prior to this accident.


Although there were no eyewitnesses to this accident other than claimant, Mr. Mitchell, in his testimony, gave a clear and straightforward account of the accident on which this claim is based.

Claimant testified that on Saturday, August 9, 2003, he parked his vehicle in a SUNY Cortland parking lot in order to attend a yard sale being held at an adjacent private residence, located at 4 Graham Avenue in the City of Cortland. He arrived at approximately 8:30 a.m., and the weather was clear and dry. Claimant was wearing sandals at the time, which were relatively new.

Claimant testified that after parking his vehicle, he walked down a hill to the yard sale on the sidewalk that ran adjacent to Graham Avenue. He estimated that the distance between the parking lot and 4 Graham Avenue was approximately 40 to 50 feet.

At the yard sale, claimant purchased three pieces of black plexiglass, with each sheet being approximately two feet by four feet in size. After purchasing these items, claimant left the yard sale and started to walk back up the hill, on the same sidewalk, toward the parking lot. Claimant testified that he was carrying the plexiglass in his left hand and that he was approximately eight feet from the entrance to the SUNY Cortland parking lot when he tripped on a raised slab of the sidewalk and fell.

At the time that he fell, claimant testified that he was looking ahead toward the parking lot entrance, to make sure that there were no vehicles coming into or out of the lot, and that he was not looking at the sidewalk when he tripped.

Claimant further testified that he had never walked on this sidewalk prior to this date, and that he had not noticed the raised portion of the sidewalk when he walked down the hill to the sale. He did testify that there was nothing blocking his view of the sidewalk, either going down the hill toward the yard sale or on his return up the hill toward the parking lot.

Claimant testified that after he fell, he looked back at the sidewalk and noticed that he must have tripped over a raised portion of one of the concrete slabs of the sidewalk. Claimant testified that the height differential between the two concrete slabs of sidewalk where he fell was approximately three inches. He also testified that the raised area of the concrete slab was not smooth, but contained several chips and gouges.

Later that same day, claimant went to the emergency room at Cortland Memorial Hospital for medical treatment of the injuries suffered in his fall. On his return from the emergency room, he went back to the site and took photographs. He then contacted the SUNY Cortland Police Department to report the incident, and was told to return the following day. The next day, when he returned, he met with an officer from the SUNY Cortland Police Department (Officer Wade). He testified that both he and Officer Wade went to the accident scene, and he showed the officer where he fell.

A “Report of Accident” was completed and filed, which included a narrative report prepared by Officer Wade. This Report was received into evidence at trial (Exhibit 6). According to the narrative report, Officer Wade indicated that the portion of the sidewalk where claimant fell was raised approximately two inches.

Steven C. Lundberg, the Director of Physical Plant at the SUNY Cortland campus, testified that he is in charge of maintenance and operations services at the campus. He stated that after receiving the “Report of Accident,” he examined the area in which the accident occurred, and found that the concrete slab was raised anywhere from one inch to two inches. He acknowledged that there is no specific policy with regard to inspection and replacement of sidewalks, but that he relies upon members of his department who walk the campus and identify problem areas that need repair or replacement. In other words, his department did not have any formal policy or procedure for the inspection of the sidewalks on the SUNY Cortland campus at the time of this accident.

Mr. Lundberg testified that prior to August 2003 he had not received any notification of any other falls at the location of Mr. Mitchell’s accident, nor had he received any complaints about the condition of the sidewalks in that area. Mr. Lundberg also testified that based on his examination of the photographs depicting the condition of the sidewalk, he would not have recommended this sidewalk for replacement even had he been aware of the condition of the sidewalk prior to Mr. Mitchell’s accident.

Craig Desormeau, a Civil Engineer, was qualified as an expert and testified on behalf of the claimant. Mr. Desormeau based his opinions and conclusions upon his examination of the photographs of the sidewalk admitted into evidence (Exhibits 1 through 5). He testified that the uneven and raised concrete slab where claimant fell took a period of several years to develop, resulting from numerous freeze-thaw cycles. Based on his observations of the numerous gouges and chips shown in the photographs, Mr. Desormeau determined that these gouges and chips were caused by snow removal equipment utilized by the SUNY Cortland Maintenance Department during winter months.

Furthermore, based upon the height differential between the concrete slabs, and the presence of the gouges and chips, Mr. Desormeau concluded that this height differential had existed for at least five years prior to claimant’s fall in August, 2003.

Based on his examination of the photographs, Mr. Desormeau concluded that the height differential between the concrete slabs was approximately 2½ to 3 inches. He further testified that this height differential was present only on a portion of the subject sidewalk slabs, and the differential was greatest along the left side of the sidewalk, based upon the direction in which claimant was proceeding when he fell.

Based on this height differential of approximately 2 ½ to 3 inches, Mr. Desormeau opined that this differential constituted a dangerous condition and a tripping hazard for pedestrians using the sidewalk.

Mr. Desormeau further testified that the informal inspection procedure utilized by the Maintenance Department at SUNY Cortland was inadequate, and that a formal annual inspection of all sidewalks on the SUNY Cortland campus should have been in place. While he testified that there is no standard that requires sidewalk slabs to be replaced based on any specific height differential, he also testified that whenever there exists a height differential of 1 to 1½ inches between sidewalk slabs in any municipality or college campus, such slabs should be removed and replaced.

Thomas W. Bock, a professional engineer, was qualified as an expert and testified on behalf of the defendant. Although Mr. Bock made two site visits to the accident scene in 2008, his relevant testimony was based primarily upon his review of the photographs of the sidewalk (Exhibits 3 through 5).

Mr. Bock testified that, based upon his examination of the photographs, the sidewalk showed no evidence of spalling, crumbling, or any structural failure, and that the sidewalk generally was “in good shape”[2] in the area where claimant fell.

He also testified that based on the angle at which the photographs were taken, it was difficult to determine the exact height differential between the two sidewalk slabs where claimant fell, but that his best estimate of the height differential was no greater than two inches. He also testified that this height differential, since it was created over a period of time due to freeze-thaw cycles, had existed for at least 20 years prior to the accident. He agreed with Mr. Desormeau that the gouges and chips in the concrete were caused, in all likelihood, by a snowplow during snow removal operations. Mr. Bock testified, however, that the condition of the sidewalk in this area was reasonably safe for pedestrian travel, and that the amount of deflection of one to two inches was not such that replacement of the concrete slabs was required. He further testified that it was common for deflections of this degree to exist in any municipality or college campus, and that there were no specific engineering standards tied to any specific number of inches to deflection or height differential which would require replacement of sidewalk slabs.

In sum, it was Mr. Bock’s testimony that the amount of deflection which he observed from the photographs in this area did not warrant replacement of the concrete slabs, and that it was common to have this amount of deflection in a sidewalk with an apparent age of 20 years. He therefore concluded that the height differential between these concrete slabs where Mr. Mitchell fell did not constitute a tripping hazard, and did not constitute a dangerous condition.

A landowner has a duty to maintain its property in a reasonably safe condition, in view of all the circumstances (Basso v Miller, 40 NY2d 233). The State, as a landowner, is subject to the same rules governing private landowners (Preston v State of New York, 59 NY2d 997). The State, therefore, must act as a reasonable person to maintain its property in a reasonably safe condition, but it is not an insurer against any injury which might occur (Killeen v State of New York, 66 NY2d 850; Smith v State of New York, 260 AD2d 819).

In order to prevail on this claim, therefore, claimant must establish by a fair preponderance of the credible evidence that a dangerous or defective condition existed, which the State either created or of which it had actual or constructive notice. Constructive notice can be established if there is evidence that an apparent and visible defect existed for a sufficient period of time prior to the accident which would have allowed the State the opportunity to discover and correct the problem (Gordon v American Museum of Natural History, 67 NY2d 836).

In this particular matter, both experts agree that the raised portion of the concrete slab in question had been in existence for a period of several years, and that it had been caused over a period of time by numerous freeze-thaw cycles. Additionally, both experts agreed that the chips and gouges along the raised portion had been caused by a snowplow during snow removal operations. Accordingly, based upon this expert testimony, as well as its review of the photographs in evidence, it is clear that the defendant, at a minimum, is charged with constructive notice of the condition.

The issue before the Court, therefore, is whether the condition of the sidewalk, and in particular the height differential between the concrete slabs, constituted a dangerous condition. Resolution of this issue is generally considered to be a question of fact that turns on the circumstances of the individual case (Lamarre v Rensselaer County Plaza Assoc., 303 AD2d 914). There is no hard or fast 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). Rather, the existence of a defective or dangerous condition must be determined by an examination of the particular facts and circumstances of each claim, taking into account the width, the depth, elevation and appearance of the condition.

A landowner, however, may not be held liable for negligent maintenance due to the existence of a trivial defect on a walkway, not constituting a trap or a nuisance (Sullivan v State of New York, 276 AD2d 989; Liebl v Metropolitan Jockey Club, 10 AD2d 1006). Liability is imposed only when the facts and circumstances establish that the defect presented an unreasonable risk of harm and had the characteristics of a trap or nuisance (Maloid v New York State Elec. & Gas Corp., 257 AD2d 712).

In this particular matter, testimony from the various witnesses gave an approximate height differential between the concrete slabs ranging from one to three inches. After reviewing the trial testimony and in particular, carefully examining the photographs which were placed into evidence, the Court agrees with Mr. Bock, defendant’s expert, that it is difficult to determine the exact height differential due to the angle at which the photographs were taken. However, photographs (Exhibits 3 and 4) clearly reveal that a height differential exists on only a portion of the concrete slabs. In the direction that claimant was walking when he fell, there is a greater height differential on the left side of the concrete slab, the differential is much less toward the middle of the sidewalk, and it does not appear that there is any height differential at all on the right side of the sidewalk. The Court also notes that claimant was unsure exactly where he was on the sidewalk when he tripped, since he was not looking at the sidewalk, and therefore could only approximate the precise area where he fell when he marked the photographs. It appears to this Court, however, that there is approximately a two inch difference in height between the concrete slabs in the immediate area where claimant indicated he fell.

Additionally, the photographs also reveal that the concrete slabs, aside from the height differential, were in generally good repair. There was absolutely no evidence of cracking, spalling, or crumbling of the concrete slabs. Significantly, the difference in height was open and obvious to anyone walking on the sidewalk, and the accident happened in broad daylight on a clear and dry day. Claimant, who was wearing sandals, had traveled along the same sidewalk several minutes earlier, and, when he fell, was looking ahead to the parking lot entrance.

Based on the foregoing, this Court finds that the difference in height between the concrete slabs where claimant fell does not constitute, under these facts and circumstances, a dangerous or defective condition. The Court finds that the difference in height between the concrete slabs falls within the meaning of a “trivial defect” and that such a defect is too small, as a matter of law, to support a negligence claim (Trincere v County of Suffolk, 90 NY2d 976, supra; Liebl v Metropolitan Jockey Club, 10 AD2d 1006, supra; Allen v Carr, 28 AD2d 155). The State may 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).

In this case, based upon the Court’s findings that the defect was both trivial and open and obvious, this claim must be, and hereby is, dismissed.

Any motions not heretofore ruled upon are hereby denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.


December 23, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. The claim of Beverly Mitchell is derivative in nature. Therefore, all references to claimant, unless otherwise specified, are to Richard Mitchell.
[2]. Unless otherwise indicated, all references and quotations are taken from the Court’s trial notes.