In this claim, claimants seek damages for injuries suffered by claimant Richard
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
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
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
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
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
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.