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
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
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
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
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
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
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
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,
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
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
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
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
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
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
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.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 111511.