New York State Court of Claims

New York State Court of Claims

DELVASTO v. THE CITY UNIVERSITY OF NEW YORK, #2008-016-037, Claim Nos. 107404, 110162


Claim for slip on bleachers by a nine-year old camper dismissed for failure to prove that it was caused by a dangerous condition.

Case Information

SIENNA M. DELVASTO, an infant under the age of 14, by her mother and natural guardian, ROSARIA CURCIO
1 1.Two separate claims were initiated from the same July 17, 2001 incident. The first, claim no. 107404, was brought against the State of New York. In the second claim (no. 110162), the defendant is the City University of New York. The sole proper defendant in this matter is the City University of New York, and the caption reflects same.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Two separate claims were initiated from the same July 17, 2001 incident. The first, claim no. 107404, was brought against the State of New York. In the second claim (no. 110162), the defendant is the City University of New York. The sole proper defendant in this matter is the City University of New York, and the caption reflects same.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107404, 110162
Motion number(s):

Cross-motion number(s):

Alan C. Marin
Claimant’s attorney:
Foley, Griffin, Jacobson & Faria, LLPby: Jay D. Jacobson, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney Generalby: Andrea Hazell, AAG
Third-party defendant’s attorney:

Signature date:
July 31, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the liability trial of the claims arising from Sienna DelVasto’s fall on a set of bleachers at Queens College of the City University of New York. This accident occurred on July 17, 2001 when Sienna was nine years old and attending a summer day camp run by Queens College; by the time of trial, Ms. DelVasto was 16 years old.
Sienna’s eight-year-old brother was also attending the camp. The two children were driven to and from the campus by their mother, Rosaria Curcio. Ms. Curcio testified that on the morning of the accident, a Tuesday during the third week of camp, she parked her car in a nearby campus parking facility as she usually did, and then took her daughter and son to the gymnasium.
The camp day, like a school day, was divided into periods. The first period was given over to activities known as “quiet games,” which took place in the cafeteria. Next was tennis on the outdoor courts. Some time between 9:30 and 10:00 a.m., Sienna walked over to the tennis courts. Ms. DelVasto testified that this was about a five-minute walk, and she went there with about fifteen people that included the group counselor and some other adults.
The group entered the tennis courts by an entrance through a fence. According to DelVasto, it had been drizzling for about five minutes. There was no testimony that it was raining when the campers left for the tennis courts, and claimant’s case
does not advance any inference therefrom, such as they should not have started out.
The campers were instructed to sit on the bleachers. Ms. DelVasto testified that she had usually sat in the first or second row of these bleachers, but this time climbed higher up:
Q. At the time of your fall where were you going?

A. Above the third row.
. . .
Q. And how far, if at all, did you get that morning?

A. Up to the third step . . . I slipped . . . I was stepping with one foot . . . My right [and] it slipped under me . . . I fell . . . forward.
Ms. Curcio was informed by the camp of her daughter’s injury, and she hurried to the scene. Later the same day, Curio returned to the camp to pick up her son, and at that time took the opportunity to go by the bleachers, which she recalled in her testimony:
I saw an old set of bleachers that were just made of planks of wood. . . . [T]he paint was wearing off, the entire set of bleacher[s], the condition of the wood was warped. There were very few, even steps to step on . . . [T]here were cracks in the planks of wood. More gray than they were red from the wood rotting through.
An injury to a nine-year old at summer camp is cause for considerable concern and such child is naturally a sympathetic figure. Nonetheless, the defendant’s possible liability must be evaluated in light of certain basic, if familiar, principles. For one, the City University is not an insurer; the happening of an accident and resulting injury does not necessarily mean that there is liability. Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977).
Negligence on the part of defendant must be demonstrated, and such must be the proximate cause of Sienna’s accident. To find negligence, the proof must show that there was a dangerous defect or condition created by Queens College, or if not, that the college had notice of the condition and a sufficient time to repair or otherwise remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986); Giuffrida v Metro North Commuter R. R. Co., 279 AD2d 403, 720 NYS2d 41 (1st Dept 2001).
Ms. DelVasto described the third step, the one that she testified she slipped on, as follows:
It was out of shape. It was basically shaped like a roof in the sense of there’s a peak in the middle and it slopes towards the outer edges. Sort of like a house roof.
She added that she placed her entire foot on the slope “[g]oing downwards, towards me.”

The testimony of Ms. DelVasto, who was wearing sneakers, comports more with the narrative of a claimant whose accident was on a slippery, otherwise satisfactory, surface. An outdoor wooden bleacher that gets rained on, without more, is not a dangerous condition. Nor did claimant develop the argument that the camp staff improperly supervised the campers by allowing them to sit on the bleachers; consider the inconclusive testimony of how long it was raining and the fact that no weather reports were submitted.
The mechanics of Sienna’s fall are unclear and, in any event, insufficient to implicate a plank (or the planks) of the bleachers as a dangerous condition (apart from the impact of the rain). The accident report submitted by claimant contains this description of what happened:
Camper was walking onto bleachers before tennis classes. The bleachers were wet due [to] rain shower earlier. Camper slipped and hit her face onto bleachers.
The bleachers were disassembled soon after the accident. Claimant submits photographs of the planks to show their condition as they existed on the morning of July 17, 2001; the photos were taken soon afterwards by Ms. Curcio, without her daughter’s presence (cl exhs 1-8). The photos show seven planks jumbled on the ground; six of them look to be the same length, and one is definitely shorter.
The offending board and place where she slipped on it was indicated on five of the photos by Sienna with an oval marking in pen (cl exhs 2, 5, 6, 7 & 8).
Exhibits 7 and 8 match up: the seven boards are laid out in the same position on the ground and the marked board in each can be matched up by their distinctive knothole pattern and imperfections on the end of each board. The board that is circled in exhibits 2, 5 and 6 appears to be the same (note the small rectangular white marking on the visible end of each that looks like a spot of white paint or a piece of tape), but it is not so clear that this board is the same as the board highlighted in exhibits 7 and 8. With that said, the boards in all five pictures do look to have the same slight bend to them, which itself varies from DelVasto’s testimony that the plank was peaked like a house roof.
However well meaning, it is far from certain that Ms. DelVasto can know which of these disassembled boards she fell on - - which had served as the third row of seats in the bleachers. Consider the following exchange with her at trial, when shown the photograph that is claimant’s exhibit 3:
Q . . . Do you know where those planks of wood came from?

A. The bleachers.

Q. But how do you know that?

A. Because they’re planks of wood and they’re the same color of the bleachers that I had fallen on.

Q. Could they be planks of wood from another set of bleachers?

A. Very possibly. Possibly.

Q. And the third bleacher that you’re claiming you sustained your injury on, is that depicted in that photograph?

A. Yes.

. . .

Q. The question is, how do you know that the third plank where you sustained your fall is in that photograph?

A . . .[B]ecause of the planks of wood that have made up, or, they are the planks of wood that had made up the bleachers that I had fallen on or are very similar to them.
Other than the estimate that the planks were ten feet long, claimant offered no measurements relating to the degree of curvature of the plank that was circled in the photographs or to anything else that could have had an effect on an individual walking on it. Even were such measurements made available, how would they be evaluated? No code, rules, regulations or guidelines were submitted; claimant did not put an expert on the stand.
Claimant implies that the bleachers should have had railings or a center aisle; for example, Sienna and her mother both referred to another set of bleachers in the area that had these features. But again, such is generally tested against some standard; see, for example, Elliott v City of New York, 17 AD3d 287, 794 NYS2d 325 (1st Dept 2005).
In the absence of a comparison with an accepted standard, whether a condition is a dangerous one that can create liability “depends on the peculiar facts and circumstances of each case and is generally a question for [the trier of fact].”
What happened to Sienna was not, for example, the result of bleachers that collapsed, a plank that broke or splintered,
or a piece of protruding metal.
To this trier of fact, the board circled in the photographs, arguably once the third plank in a set of bleachers, was not proven to represent a dangerous condition.
In view of the foregoing, claimant has failed to meet her burden, and claim no. 110162 is
therefore dismissed. In addition, pursuant to footnote 1 herein, motion no. M-74737 is granted and claim no. 107404 is dismissed. The Clerk of the Court is directed to enter judgments accordingly.

July 31, 2008
New York, New York

Judge of the Court of Claims

[2]. The term “claimant’s case” encompasses the suit brought on behalf of the infant Sienna DelVasto and “claimant” refers to Sienna, unless the context indicates otherwise.
[3]. Trincere v County of Suffolk, 90 NY2d 976, 977, 665 NYS2d 615, 616 (1997); citations and internal quotation marks are omitted.
[4]. As in Kasper v Buffalo Bills of Western New York, 42 AD2d 87, 345 NYS2d 244 (4th Dept 1973).
[5]. As in Romero v City of New York, 260 AD2d 461, 688 NYS2d 226 (2d Dept 1999), appeal after remand 272 AD2d 599, 708 NYS2d 156 (2d Dept 2000).