New York State Court of Claims

New York State Court of Claims

LUPO v. THE STATE OF NEW YORK, #2008-010-025, Claim No. 111511


Inmate fall on stairway, no negligence attributable to state. Trivial crack in stairs did not pose a foreseeably dangerous condition.

Case Information

1 1.The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
LAW OFFICES OF BEAL & BEALBy: Kenneth J. Beal, Esq.
Defendant’s attorney:
Attorney General for the State of New York
By: Jyotsna Gorti, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 6, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for injuries she sustained on August 22, 2005 during her incarceration in Taconic Correctional Facility (Taconic). The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

On August 22, 2005, claimant fell while descending the exterior staircase of Building 71 as she carried two plastic bags containing pillows and wet mop-heads. Claimant contends that the steps were in disrepair and did not comply with the 1956 New York State Building Code requirements regarding their measurements and the absence of a handrail on both sides of the steps. Defendant argues that the staircase was maintained in a safe manner, the building code was not applicable, and that any existing defect was trivial. Defendant attributes the happening of the accident to claimant’s failure to look where she was going and the manner in which she carried the bags.

Claimant testified that she had been incarcerated at Taconic since June or July 2005. On August 22, 2005, she was housed in Building 71, L Gallery and Correction Officer Amy Rosado[2] assigned claimant the task of cleaning the housing unit. Later that morning, Rosado directed claimant to take wet mop-heads and pillows to the State shop. At approximately 1:00 p.m., Rosado came to claimant’s bunk to escort her from Building 71 to complete the assignment. Rosado handed claimant 3, 18-inch square pillows in a thin plastic bag and told claimant to pick up another thin plastic bag containing five wet industrial mop-heads.

Claimant described the plastic bag containing the mop-heads as five feet long. She knotted the bag just above the level of its contents. Claimant thought that if she carried the bag from the top, the weight of its contents might tear the plastic bag. Accordingly, she placed this bag on top of the bag of pillows and carried them in a stack in front of her stomach, hugging the bags with both hands. Claimant did not believe that she had the option of making a separate trip for each bag. Rosado watched without comment as she held the door open for claimant. Claimant proceeded out the door and down the five-step staircase. Claimant contends that when she reached the third step, her foot got caught in a depression which caused her to fall down the stairs.

Claimant, who was wearing white sneakers, maintained that she was walking slowly and could see over the packages, which were only 10 inches high. She attributed her fall to the uneven third step which caused her foot to get caught in a crack. As claimant fell forward, she tried to break her fall with her right arm.

The only handrail on the staircase was on the left side. Claimant proceeded down the right side of the steps because her destination was to the right. In any event, she could not use the handrail because she was carrying the bags. Claimant had traversed the staircase multiple times on a daily basis and had previously used the handrail.

According to claimant, at the time of her fall, Rosado had her back to claimant and therefore Rosado did not see claimant fall. Sergeant Gates and a nurse responded to the scene. Claimant was placed in a wheelchair and transported to the emergency room at Mount Vernon Hospital.

Officer Rosado testified that she has been employed by the New York State Department of Correctional Services (DOCS) since 2004 and has been at Taconic since March 2005. On August 22, 2005, she was assigned to the 7:00 a.m. to 3:00 p.m. shift in Building 71, L Gallery. She had no independent recollection of the general events of the day, but she did remember witnessing claimant’s fall.

Rosado did not specifically recall directing claimant to carry the pillows and the mop-heads. However, Rosado acknowledged that, as the officer on duty, she may have given claimant such an assignment. According to Rosado, she was supervising several other inmates engaged in pulling weeds in a grassy area adjacent to the stairs, when she observed claimant exit the building with the bags in her hand and then fall forward after descending two or three steps. Rosado did not observe any tripping hazards; therefore Rosado assumed that claimant had tripped over her own feet.

Rosado had a specific recollection of making an entry in the logbook regarding the fall, but she did not recall the details of her notations. Generally, her notations would include what occurred, what was observed, what actions were taken, and who was notified. Rosado contacted her supervisor and called the medical staff.

Rosado was directed by her supervisor to prepare a memorandum summarizing the event. She wrote that claimant “walked out of the Unit to go to the State Shop. As she took the last step, she tripped over her own feet and fell on the ground” (Ex. D). At trial, Rosado could not remember how many steps claimant had taken before her fall.

Rosado maintained that the crack did not cause claimant’s fall because claimant did not step in the crack. Additionally, Rosado disputed whether claimant was carrying five mop-heads as there were only two mop-heads on the unit.

Robert Drosdowich testified that he was the Maintenance Supervisor III at Taconic from March 31, 2005 to April 2006 and also functioned as Plant Superintendent. He was responsible for overseeing the operation of the maintenance department, which consisted of approximately five people. As part of his duties, he reviewed work orders, assigned jobs, and inspected completed work.

Drosdowich recalled that on August 22, 2005, he was advised that someone had fallen on the exterior steps of Building 71. He responded to the scene to determine whether remedial measures were necessary. Drosdowich testified that he did not observe any defects warranting repair.

When questioned about the photographs of the staircase received into evidence (Exs. 4-10), Drosdowich was forthright in his testimony. While he did not remember any repairs having been made on the stairs, he acknowledged that the photographs show some missing concrete and the concrete appears as if it had been patched. He did not recall the steps being in the condition depicted in the photographs, nor did he recall any repairs done to the steps; however he did not dispute the accuracy of the photographs. When asked what he would do if he saw the steps in the condition shown in the photographs, he replied, “probably nothing.”[3] In his opinion, the stairs were not in need of repair.

Drosdowich testified that when exiting the building, the door is hinged so that it directs people to the left, where the handrail is located. He also estimated that the right wall is approximately the same height as the handrail. He conceded, however, that the wall was not designed to function as a handrail.

Correction Officer Frank Klepis, the Maintenance Supervisor III at Taconic, testified that his duties included evaluating all maintenance issues and their impact on safety and security and whether they were considered emergency situations. Klepis reviewed a photograph of the staircase (Ex. 5) and testified that, in his view, the steps did not require immediate attention. Based upon his knowledge of the actual step, he opined that the step did not need repair.

Daniel Haines, a professional engineer with degrees in civil engineering and who had a long career in teaching before he retired from Manhattan College two years ago, offered expert testimony on behalf of claimant. Haines visited Taconic on December 22, 2005, four months after claimant’s fall, and took photographs (Exs. 4-10) and measurements of the staircase. The parties agreed that the staircase had remained in the same condition from the time of the accident until the date of the photographs.

When the staircase was constructed in 1914, there were no building codes. The first New York State Building Code came into effect in 1956. Haines maintained that the 1956 code applied to the staircase because Building 71 underwent a substantial renovation in 1961. According to Haines, because the building’s flooring had been updated in 1961, the exterior staircase also should have been updated to meet the then current code standards. Haines could not cite to any supporting authority for his position that interior code compliance mandated exterior code compliance. Nonetheless, Haines maintained that claimant’s fall was due to defendant’s failure to conform the steps to meet 1956 code requirements. Specifically, Haines noted that the variable risers and treads deviated from the standards set forth in the 1956 code and that the deterioration of the third step and the lack of a right-side handrail also violated the 1956 code.

Following claimant’s described route down the steps, Haines measured the risers consecutively as: six inches, six inches, five and three-quarter inches, four and seven-eights inches, and five and one-half inches. The 1956 code required that the variation in the height of each riser be no more than one-eighth inch because a descending individual anticipates uniformity. If the rhythm is interrupted, the possibility of stumbling increases. The 1956 code also mandated that the tread of each step not vary by more than one-eighth of an inch. On the staircase at issue, the treads measured: 12, 11¾, 11¾ and 12 inches, respectively. Haines also noted that the staircase was 50 inches wide and that the code required staircases wider than 44 inches to have handrails on both sides. Haines opined that claimant fell on the right side due to the lack of a right handrail.

Haines also observed that the tread on the third step, the site of claimant’s fall, had severe cracking. He characterized the less than one-inch crack as severe and noted that there was a missing wedge-shaped piece of concrete on the third step. He concluded that the steps were not sound.

On cross-examination, Haines conceded that claimant fell on the third step and that there was no variation between the treads of the second and third steps. In terms of the risers, the differential was one-quarter inch rather than one-eighth inch.

Raymond E. Webster, an Associate Architect in the New York State Office of General Services since 1983, offered expert testimony on behalf of defendant. As part of his duties, he manages other architects and engineers and oversees their work. He is involved in the design phase, beginning with the first meeting with a State agency, through the contract documents. This includes drawings and daily references to the State building codes, rules, and manufacturer standards. He has overseen hundreds of projects with exterior staircases.

On May 8, 2008, Webster visited Taconic and took measurements of the staircase. The risers measured: 6, 6, 5 ⅞, 4 ⅜, and 5 ½ inches, respectively and the top three treads were: 12, 11⅞ and 12¼ inches. Webster did not measure the last two treads because claimant fell on the third step.

According to Webster, the first State building code came into effect in 1956, but State buildings were not covered until 1984. Webster opined that the 1961 interior renovation of the linoleum floor was a minor alteration that had no bearing on the staircase. Retroactive application of the code was only required when an existing use continued and a renovation cost equaled 50 percent of the replacement cost of the building (Ex. F, p. 2). Webster further testified that the 1956 code and its subsequent amendments were written for interior stairs. Nonetheless, the risers met the permissible one-eighth inch variable permitted in the 1964 code. Webster also noted that the 2003 Uniform Fire Prevention Code, which was the first to address exterior stairs, allowed a three-eighth inch riser variation. Webster conceded that a second handrail, while not required by the code, would have been relatively inexpensive to install.

Webster opined that the condition of the staircase was good, safe, and sound. He described the crack on the third step as close to the wall, without any evidence of crumbling. The fact that the crack was so close to the wall made it almost impossible to walk on and to cause a fall. Webster testified that the crack did not affect the step’s safety. Thus, he concluded that the condition of the step did not contribute to claimant’s accident.
It is well established that the State has a duty to maintain its facilities in a reasonably safe condition (Preston v State of New York, 59 NY2d 997). The State also has a duty to warn of any latent dangers that are not readily apparent (see Walter v State of New York, 185 AD2d 536). There is no duty, however, to warn against a condition which is open and obvious and readily observable by the reasonable use of one’s senses (see Paulo v Great Atl. & Pac. Tea Co., 233 AD2d 380). Claimant was bound to see that which could have been observed by a proper use of her senses (see Coote v Niagara Mohawk Power Corp., 234 AD2d 907; Johnston v State of New York, 127 AD2d 980, 981) and when an inmate fails to use ordinary care and pursues a dangerous course of conduct, she must take responsibility for her own negligence (see Carter v State of New York, 194 AD2d 967). The State is not an insurer of the safety of its inmates and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850; Condon v State of New York, 193 AD2d 874). Indeed:

“[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury.”

(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7; see also Bernstein v City of New York, 69 NY2d 1020; Marchetto v State of New York, 179 AD2d 947).

In order to prevail on her claim, claimant must show: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was the proximate cause of claimant’s accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836). It is also noted that, “a property owner may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip” (Zalkin v City of New York, 36 AD3d 801, 801, quoting Hargrove v Baltic Estates, 278 AD2d 278, 278). Here, the crack on the third step was less than one inch deep and the differential between the risers of the second and third steps was one-quarter inch. There was no variation between the treads of the second and third steps. Thus, the Court finds that the alleged defects were trivial and did not constitute a trap. Moreover, the Court finds that claimant failed to establish the applicability of the building code to the location in issue and the Court credits the testimony of defendant’s expert regarding this matter.

Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that there is a lack of credible evidence to establish that any negligence attributable to defendant was a contributing cause of claimant’s accident. Specifically, claimant failed to establish that the alleged defect, on the third step, was of a significant depth and width as to pose a foreseeably dangerous condition and that any differences in riser height was a contributing cause of claimant’s fall (see Trincere v County of Suffolk, 90 NY2d 976 [trip and fall claim based upon a cement slab elevated a little over a half inch above the surrounding slabs was properly dismissed given all the facts and circumstances presented including the dimension of the defect in issue]; Riser v New York City Hous. Auth., 260 AD2d 564 [pavement which was elevated approximately one inch above surrounding pavement was a defect too trivial to be actionable]; Burstein v City of New York, 259 AD2d 579 [difference in elevation of one inch between terrazzo floor and sidewalk did not constitute a dangerous or defective condition]; Buono v City of New York, 240 AD2d 689 [height differential in brick sidewalk which caused claimant to fall was too trivial to be actionable]).

Additionally, the Court finds that claimant’s allegation that the absence of a second handrail contributed to her fall constitutes “unfounded speculation” (see Avina v Verburg, 47 AD3d 1188, 1189, citing Sauer v Mannino, 309 AD2d 1053, 1054 [plaintiff’s arms were full of scrap metal when the riser on one side of the stairs separated from the treads, causing the stairway to collapse; the possibility that handrails would have prevented the fall is unfounded speculation]). Rather, the evidence leads to the conclusion that the defect did not constitute a trap or nuisance and claimant’s fall was due to her own inattentiveness (see Zalkin v City of New York, 36 AD3d 801, supra [three-quarter-inch difference in elevation between edges of concrete slabs, which caused plaintiff to fall, was too trivial to be actionable]; Kojtari v State of New York, 282 AD2d 437; Paulo v Great Atl. & Pac. Tea Co., 233 AD2d 380, supra).

Accordingly, defendant’s motion to dismiss, upon which decision was reserved, is now GRANTED.

All motions not heretofore ruled upon are DENIED.


October 6, 2008
White Plains, New York

Judge of the Court of Claims

[2]. Officer Rosado has married since claimant’s accident and is now known as Amy Rosado Cabrera.
[3]. All quotations are to the trial notes or audiotapes unless otherwise indicated.