New York State Court of Claims

New York State Court of Claims

CONNORS v. THE STATE OF NEW YORK, #2008-013-505, Claim No. 106810


Synopsis


Claimant failed to meet her burden of proof that the State’s negligence was responsible for her fall and injury on a gymnasium floor during indoor lacrosse practice at the State University of New York at Brockport. The claim is dismissed.

Case Information

UID:
2008-013-505
Claimant(s):
KELLI-ANN CONNORS
Claimant short name:
CONNORS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106810
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant’s attorney:
BURKE AND BURKEBY: PATRICK J. BURKE, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 31, 2008
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


This claim arises out of an injury suffered by Claimant Kelli-Ann Connors on the morning of February 25, 2001 during an indoor lacrosse practice at the State University of New York at Brockport (Brockport). Claimant was a junior at Brockport and a member of that school’s women’s lacrosse team at the time of her injury. The trial of this claim was bifurcated and this decision is limited solely to the issue of Defendant’s liability.


This incident occurred on a Sunday morning at a regularly scheduled practice session held in the large gym located in the facility known as the Tuttle North Athletic Complex at Brockport. According to the testimony at trial, the accident occurred in the larger of the two gyms located in the Tuttle Complex.

While there also were classrooms located in the complex, none were in use at the time of the occurrence since it was a Sunday. In fact, as fairly well settled from the proof before me, except for the baseball team (which practiced earlier that morning) and the lacrosse team, there were no other students, faculty or third parties who had used the area that morning prior to this accident.

On the day of the accident, Claimant joined her teammates for a 10:00 a.m. practice. When they arrived, the large gym in which they were to practice was being used by the Brockport baseball team, and the lacrosse team had to wait. According to her lacrosse coach at that time, Tony Zostant, since they were unable to gain immediate access to the gym, his team began to loosen up in an adjacent corridor while the baseball team finished up its session, which concluded with the baseball players doing sprints. Because it was a Sunday and the facility was closed except for these two teams, Coach Zostant was not concerned about the delay in using the facility. He testified that generally the coach of the team leaving the gym would stop and talk with the incoming coach regarding any problems his or her team may have encountered in using the gym, including the presence of water or foreign substances on the floor. On the day of this incident, he recalled that the baseball coach advised him that everything was fine and apologized for going over his allotted time. Mr. Zostant stated that it was his practice to have his staff check the floor area to be sure that there was no debris, water or other substance(s) present. On previous occasions he had cleaned the floor of water tracked by students who could “cut through” the small gym where his team often practiced, either from 4:00 to 6:00 p.m., or 6:00 to 8:00 p.m. He noted, perhaps in an understatement, that most college students (apparently other than certain athletes) are not to be found traipsing around campus on Sunday mornings.

As the lacrosse practice, which was scheduled from 10:00 a.m. to noon, was nearing its end, Mr. Zostant’s attention was drawn to Claimant, who was on the floor. When he went to see what had happened, he observed that she was crying, in obvious pain. She told him that she had slipped on something that she said was water. He called the team trainer over and began to look in the area where Claimant fell for water or liquid of some type, but saw none. He did, however, see a clear “sticky” substance on the floor, which he described as having the shape of a “splat” that was five to six inches in size, but not really visible to the eye. While there was testimony that another player had fallen earlier in practice, it was approximately 20 feet from where Claimant fell. He did not recall any of his athletes voicing any concerns regarding the condition of the floor prior to Claimant’s fall, and noted that practice had been ongoing for an hour and 45 minutes prior to the accident. Moreover, according to the proof at trial, the baseball team had used the gym that morning for its practice without incident. Also of probative significance to me, Mr. Zostant observed the baseball team conclude its practice as it traditionally did, by running sprints on the gym floor, in the same part of the gym where Claimant was injured.

Claimant testified that earlier in the practice that morning another team member had slipped on what was presumably water, and that some of the team members complained among themselves about the condition of the floor, but no one communicated or alerted the coaches or staff. In addition, she did not recall if there had been student traffic through the gym, since it was a Sunday and there were no classes being held in the facility on that day. She stated that, at the time she fell, practice was nearing an end, and, other than the earlier fall by her teammate, lacrosse practice had been routine and without incident. Just prior to her fall she had been involved in a scrimmage and was guarding, face-to-face, another player who was attempting to break loose and move toward the goal that Claimant was defending.

The player on offense feinted as if she was going to Claimant’s left, and Claimant responded to the fake by moving in that direction. Her “opponent” then changed direction to Claimant’s right and Claimant planted her right foot to move in that direction. Claimant testified that it was at this point that her foot slipped on moisture until the edge of the sneaker she was wearing hit a dry spot, which would appear to be the aforementioned “sticky” area. At this point she fell to the floor and was immediately in pain, and she did not look to see what had caused her to slip.

Throughout her testimony Claimant credibly testified that while she did not see any moisture in the area where she fell, as her pain was so intense and immediate, she really did not make any observations of the area around her. She stated that from prior occasions when she had slipped on slippery or wet surfaces, she was aware of that sensation and what she felt as this accident unfolded was a similar or identical experience. She also acknowledged that at her deposition she stated that no one went to the coaches to complain about the condition of the floor after the earlier fall of her teammate, nor did she hear any discussion regarding there being moisture or dampness on the floor.

Rebecca Moore was employed by the Brockport maintenance department as a supervisor of a small cleaning crew of other employees and was in charge of cleaning the gyms. Her assignment for some ten years, including the night before the morning of the accident, was the 11:00 p.m. to 7:30 a.m. shift. She worked in Tuttle Hall during that period, and her crew took care of all of Tuttle Hall, including the gyms and pool area. The gyms were open until midnight for use by either students or coaches and teams. Her cleaning crew did not have access to any part of Tuttle Hall that had students in it until they left and the building was closed. According to Ms. Moore, to the best of her recollection and inferences, there had been a wrestling match in the main gym on the 24th of February, the night before this incident. When her crew arrived they would typically roll up the wrestling mats, if that had not been done, and then clean the gym(s), which included dusting the floors and removing any debris, and then auto-scrubbing the gym floors. She was not working in the gym that night, but was in the pool area. After events such as a wrestling match, where there is body contact, it was necessary not only to dust mop the entire floor area, but also to auto-scrub to disinfect the areas. The floor is left dry because the auto-scrubber is equipped with a squeegee and a vacuum which removes any wetness or moisture from the floor. While Ms. Moore was not present when the work was done that evening, she recalled inspecting the area after the floors were cleaned since she had to complete a written weekend report. Her recollection was that she did not have any concerns regarding the work that was done and probably inspected the gyms on the date of the accident at the tail end of her shift. Unfortunately, Ms. Moore’s written report for that date had been destroyed in Brockport’s regular course of purging old reports.

Ms. Moore testified generally that the gym floors were auto-scrubbed at least two to three times a week, and once on a weekend, usually on a Sunday night, but always after a special event, such as a wrestling match. She candidly admitted that she did not have a specific recollection of whether the floor was auto-scrubbed during her shift on the night of February 24th and early morning of the 25th since it happened over five years prior to the trial, but that what she described was what generally occurred. She also noted that the reason she was sure there had been a wrestling match on February 24, 2001, was based on what she had been informed by her chief janitor who had looked at a work attendance log for that date. I accept her testimony that she in fact did work on the 24th and 25th of February 2001, and further that what she related during her testimony regarding what she and her crew did was based not on a specific recollection, but rather what the general practice or routine was following a special event such as a wrestling match.

Of concern to me is Claimant’s reliance on a condition that was never specifically pleaded in her claim or alleged in her bill of particulars or her deposition, that being the presence of a clear “sticky” substance on the floor which caused her to fall and be injured. The presence of this substance was brought out during the direct examination of Claimant’s lacrosse coach, Anthony Zostant. It was acknowledged at trial that he had not been previously deposed by either party hereto, but at some point, which I assume was after he left his employment at Brockport, he had private conversations with attorneys for both parties at different times. Regardless of when these conversations took place, there was no motion practice to amend any pleading or the bill of particulars to reflect or incorporate this significant fact.

Claimant, in her post-trial memorandum in support of her claim of Defendant’s negligence, raised the “sticky” substance as a contributing factor which caused Claimant’s injury. Claimant’s theory of negligence as set forth in the pleadings before me alleges that Claimant was caused to slip on “clear liquid substance believed to be water” (Claim - ¶3) or an “accumulation of water” (Verified Bill of Particulars - ¶4) that was on the floor and that the Defendant should have known about it had it properly inspected the area.

While I do not agree with the Defendant’s characterization that Claimant is attempting to fix liability based upon her “slipping” on this sticky substance, since there is nothing in the record that it caused her to slip, nonetheless it is apparent to me that Claimant is now attempting to fix liability on the theory that the presence of this substance is what caused her to stop abruptly after she slipped, resulting in the fall and injury.

It is well settled that a party is bound by its pleadings and its bill of particulars, the purpose of which is to amplify the pleadings, limit proof and prevent surprise at trial (Northway Eng’g v Felix Indus., 77 NY2d 332; Khoury v Chouchani, 27 AD3d 1071). As noted, the claim and the bill of particulars fail to expand in any way the allegation that Defendant’s negligence was based upon its alleged failure to remove the presence of water on the gym floor resulting in Claimant slipping and injuring herself.

The only time that the alleged clear “sticky” substance is asserted as a competent contributing factor to Claimant’s injury and Defendant’s negligence is in the Claimant’s post-trial memorandum, which is not a pleading. While it is without question that the Defendant opened the door to the presence of a sticky substance on the floor at or near the spot where Claimant fell through its own witness, Coach Zostant, and it cannot, nor does it, claim surprise, I find that the failure to include it in any pleading before me precludes me from giving it probative consideration. Claimant pleaded and testified that it was the presence of water that caused her to slip and that her foot caught on a dry spot on the floor abruptly stopping her.

Even if I were to find, by implication, that the pleadings were broad enough for me to consider the presence of this sticky substance on the floor near the place where Claimant fell, there is no proof that Defendant had notice of its existence.

Claimant urges me to find that Defendant had constructive notice of the presence of this substance. To do so she must prove that the substance was visible and apparent and had existed for a sufficient period prior to this accident to allow the Defendant’s employees to discover it and remove it (Gordon v American Museum of Natural History, 67 NY2d 836). The credible evidence before me fails to establish that this so-called “splat” was visible or apparent, since Coach Zostant, the person who located it, stated without contradiction that it was not visible or apparent to him, and it was discovered when he ran his hand over the floor in the area of the fall. There is no evidence as to the length of time the substance was present on the floor.[1] Moreover, there is a lack of evidence that there was even water or some other slippery substance on the floor. Again, Coach Zostant testified that he did not observe liquid on the floor prior to locating the “sticky” substance, and Claimant herself based her belief on prior occasions when students may have tracked moisture on the gym floor. There is no proof that any student not involved in baseball or lacrosse was present in Tuttle Hall on the day of the accident or had access to the gym.

Finally, I find that Defendant maintained the premises in a reasonably safe condition giving consideration to the reasonably foreseeable risks (Basso v Miller, 40 NY2d 233). The practice and procedures followed by the Brockport maintenance staff as testified to by Ms. Moore relating to the cleaning of the gym generally and after a special event was reasonable, and I find that the gym had been cleaned in accordance with this practice on the night of February 24, 2001, and the early morning of the following day, February 25. In addition, I note that the baseball team had used the gym for practice, culminating with the team doing sprints in the area where Claimant fell, without incident for two hours prior to the lacrosse team practice, and that the lacrosse team had likewise used the area without incident for at least one hour and 45 minutes prior to Claimant’s fall (albeit with the single exception of a fellow lacrosse player having fallen some 20 feet away). Moreover, the coaches had a practice of alerting each other of any conditions that might be hazardous to the players, and Coach Zostant testified that he and the baseball coach had spoken and he was not made aware of any problems.

In finding, as I must, based on the evidence before me, that Claimant has failed to meet her burden of proof, and that I must grant the Defendant’s motion to dismiss, I do not wish Ms. Connors to conclude that I am unaware of or insensitive to the seriousness of her injury or the pain she experienced. She testified credibly not only with respect to that, but also to the events as she recalled them. She was forthright in answering questions of both counsel, both of whom did an excellent job. However, I am required by law to objectively consider and weigh all of the evidence presented to determine if the Claimant’s burden of proof has been established by a fair preponderance of the credible evidence. That burden was not met, and thus I find her claim must be, and hereby is, dismissed.

All motions not heretofore ruled upon are now denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.

March 31, 2008
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1]While there is no proof of this, perhaps it could be argued that the sticky substance may have been residue left by the baseball team, but that would not dissuade me from finding that there was insufficient time for Defendant to have discovered and removed it.