PHILLIPS-HAMEL v. THE STATE OF NEW YORK, #2008-029-041, Claim No. 112657
Liability found for negligent maintenance of premises (Camp Smith) based on
unsafe condition caused by malfunctioning outdoor lighting and defendant’s
failure to inspect.
ROSEMARIE PHILLIPS-HAMEL and STEVEN HAMEL
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
STEPHEN J. MIGNANO
BASCH & KEEGAN, LLPBy: Maureen A. Keegan, Esq.
ANDREW M. CUOMO, ATTORNEY
GENERALBy: Wanda Perez Maldonado, Assistant Attorney General
October 6, 2008
See also (multicaptioned
This claim arises from injuries allegedly sustained by claimant Rosemarie
Phillips-Hamel (hereinafter “claimant”) on May 24, 2006 when she
fell on the grounds of Camp Smith, a military facility operated by
defendant’s Division of Military and Naval Affairs. The claim of her
husband Steven Hamel is derivative. The trial was bifurcated and only the issue
of liability will be determined at this time.
Claimant and her husband, who retired from the U.S. Army in 2001 after 27 years
of service, were retained by the New York City Police Department Emergency
Services Unit (ESU) to perform catering services at training sessions that the
ESU runs at Camp Smith. They both testified that they had been so retained
twice yearly since 2001. They also catered events run by the military at Camp
Smith on a less frequent basis. Mr. Hamel indicated that the ESU would
telephone his wife and advise her of the dates their services were required and
he would then call Diane Barton, the billeting officer at Camp Smith, to arrange
accommodations for them during the catering period. On this occasion, he
telephoned Ms. Barton on May 6, 2006, told her they would be there from Sunday,
May 21 through Friday, May 26 and that they preferred not to stay in Building
508. Mr. Hamel requested Cottage 2, where they had stayed before, but it was
not available and they were assigned to Cottage 3 at a cost of $50.00 per
The couple arrived at Camp Smith on Sunday, May 21 and unloaded their equipment
and provisions. They returned home that evening since the first meal they were
responsible for was lunch on Monday. After preparing lunch and cleaning up at
Building 508 on Monday, they drove to Cottage 3 between 5:00 and 6:00 p.m. where
they stayed that evening, not leaving until about 6:00 a.m. Tuesday to prepare
breakfast in Building 508. They returned to Cottage 3 after their lunch duties,
again between 5:00 and 6:00 p.m., and again did not leave the cottage. They
followed the same pattern on Wednesday. Up to this point (dusk on Wednesday),
they had not left the cottage after dark.
The route from the cottage to the parking deck where the Hamels parked their
truck involved descending a wooden staircase adjacent to the cottage, traversing
a rocky dirt area, and ascending a staircase to the parking deck. While they
successfully traversed this area without incident during daylight hours a number
of times between Monday and Wednesday afternoons, this was not the case after
dark on Wednesday evening.
After returning to the cottage in the late afternoon on Wednesday, the couple
relaxed, talked, read and Mrs. Hamel drank a 4-ounce glass of wine. At one
point, Mrs. Hamel realized she did not have her pocketbook, which contained a
large amount of cash. She started towards the parking area to see if she had
left it in the truck. By this time it was dark and she noticed that there were
no exterior area lighting. The only illumination was from two of the
cottage’s windows. She descended the first staircase holding the
handrail, proceeded onto the path, which she described as an “uneven
terrain with rocks in the pathway,” 
tripped over one of the rocks, falling to the ground. She stated she got up
slowly, went back inside and yelled for her husband.
Mr. Hamel testified that he got out of the shower and the next thing he knew
his wife was standing in the doorway saying “Steve, I fell, help
me.” Mrs. Hamel testified she did not want to go to a hospital emergency
room because they had to get up early the next morning and they knew that the
ESU personnel at the training session had emergency medical training. They went
to Building 508 so she could be examined there. Holding a cigarette lighter for
illumination, Mr. Hamel went to their truck, turned on the headlights to light
the pathway area and assisted his wife to the truck.
Neither Mr. Hamel nor Mrs. Hamel knew whether there was any working exterior
lighting in the area on the two previous days because the day she fell was the
first day they had been outside after sunset.
Thomas DeNoyelles was the maintenance supervisor at Camp Smith, with 15
employees under his supervision. He testified that he is an electrical lineman
by trade and that the maintenance staff included other electricians. His normal
work hours were 8:30 a.m. to 4:45 p.m. but he stated that he often worked late.
He also testified that the security staff was supposed to notify him of any
maintenance problem occurring in the off-hours.
Mr. DeNoyelles was notified of claimant’s accident on Friday, May 26 and
proceeded to investigate. He described Cottage 3 as being in a
“rustic” location. There were two exterior lights near the cottage.
The first was a “cobra” light (a fixture shaped like a cobra’s
head) affixed to a utility pole at the top of the staircase leading down to the
path that leads to the staircase up to the cottage (Exhibit A). According to
Mr. DeNoyelles, the purpose of this light was to illuminate both the parking
area and the walkway. His opinion was that the area would be
“dangerous” without the light. There was also a halogen light
attached to the next utility pole, intended to illuminate the cottage deck
Mr. DeNoyelles had his electricians check the lighting in the area and they
found that the cobra light was not functioning. In fact, he testified that
neither of the lights was working when he and his men inspected the area two
days after claimant’s accident. He wrote in his subsequent report
“[t]he area where person was injured had no lighting at the time”
(Exhibit 15). He testified that they had not checked the halogen light and
that, as far as he knew, there was no operative lighting in the area at the
time. He also stated he had no reason to doubt the veracity of claimants, who
both testified there was no operative exterior lighting in the area.
Asked what sort of regular inspection program was in place for the area of
Cottage 3, Mr. DeNoyelles stated that although the water and heating systems in
the cottages were checked regularly, there was no such regimen for the grounds.
He again described the area as “rustic”
stating it was “not a primary area.” He did not know whether the
exterior lights were working at any time prior to the subject incident and
specifically stated that there was no program in place to inspect the exterior
lights to ascertain their proper operation. He agreed with claimants’
counsel that without a regularly scheduled inspection program, maintenance of
the outlying areas of the facility such as the area of Cottage 3 could become
“haphazard.” His opinion was that his department was
“understaffed” at that time.
The law governing defendant’s duties as a landowner is clear:
Having waived its sovereign immunity, the State is subject to the same rules of
liability as apply to private citizens (Court of Claims Act, § 8). As a
landowner, the State “ ‘must act as a reasonable man in maintaining
his property in a reasonably safe condition in view of all the circumstances,
including the likelihood of injury to others, the seriousness of the injury, and
the burden of avoiding the risk’ ” (Basso v. Miller, 40 NY2d
233, 241, quoting Smith v. Arbaugh's Rest., 469 F2d 97, 100).
(Preston v State of New York, 59 NY2d 997, 998 ).
As part of the duty to maintain its property in a reasonably safe condition, a
“landowner whose property is open to the public is charged with the duty
of providing safe means of ingress and egress, which includes a duty to provide
lighting” (Shirman v New York City Tr. Auth., 264 AD2d 832, 833 [2d
Dept 1999]; see also Gallagher v St. Raymond’s R. C. Church, 21
NY2d 554 ).
Here, there is no question that the external lighting intended to illuminate
the path and staircases leading to and from Cottage 3 was non-functional on May
24, 2006. There is similarly no question that the path was not safe to traverse
in the dark, a fact conceded by defendant’s maintenance supervisor. It is
also beyond any reasonable dispute that the lack of lighting on the evening in
question was a substantial proximate cause of claimant’s fall. However,
such findings are not sufficient, per se, to establish liability for the
incident. Claimant must also show that defendant had actual or constructive
notice of the dangerous condition (Gordon v American Museum of Natural
History, 67 NY2d 836 ). Since there was no contention at trial that
defendant’s employees had actual knowledge that the exterior lighting near
Cottage 3 was not functioning prior to claimant’s accident, the
dispositive issue with respect to defendant’s liability is whether the
record supports a finding of constructive notice.
In many cases arising from premises fall-down injuries, the determinative
factor is whether there was proof as to how long the offending condition existed
before the accident; e.g. Anderson v Central Valley Realty Co. (300 AD2d
422, 423 [2d Dept 2002]: “In the absence of any evidence as to how long
the puddle...existed prior to her fall, ‘there is no evidence to permit an
inference that the defendant had constructive notice of the condition’
” [quoting McDuffie v Fleet Fin. Group., 269 AD2d 575 [2d Dept
2000]). See also Kasner v Pathmark Stores, Inc. (18 AD3d 440 [2d Dept
2005]; allegedly defective entrance mat at store entrance); Menzies v New
York City Housing Authority, (4 AD3d 458 [2d Dept 2004]; accumulation of
leaves at base of stairway); Scirica v Ariola Pastry Shop (171 AD2d 859
[2d Dept 1991]; wax paper on pastry shop floor).
Here, defendant asserts that the lack of proof of the length of time the
exterior lighting was malfunctioning prevents a finding in claimant’s
favor. The court does not agree.
Cases arising out of latent defects in premises generally turn on the issue of
whether a reasonable inspection would have discovered the defect. See e.g.
Applegate v Long Island Power Auth. (53 AD3d 515, 516 [2d Dept 2008];
collapse of utility cover: “Where a defect is latent and would not be
discoverable upon a reasonable inspection, constructive notice may not be
imputed”); Lal v Ching Po Ng (33 AD3d 668 [2d Dept 2006]; collapse
of concrete abutment); Curiale v Sharrotts Woods, Inc. (9 AD3d 473 [2d
Dept 2004]; collapse of staircase).
A more germane line of cases specifically holds that a finding of constructive
notice may be based on a property owner’s failure to reasonably inspect
its property; e.g. Wynne v State of New York (53 AD3d 656, 657-658
[2d Dept 2008]; “claimant raised a triable issue of fact through his
expert affidavit as to whether the State had constructive notice of the
allegedly dangerous condition which caused the claimant's accident . . .
[s]pecifically . . . whether the State performed a reasonable investigation of
the property prior to construction in light of certain structures located
adjacent to the accident site and the property's prior use such that a diligent
inspection would have disclosed the tank that caused the claimant's
injury”); Harris v Village of East Hills (41 NY2d 446, 449 );
constructive notice of danger posed by rotting tree found, based on the
village’s failure to conduct any inspection when “reasonable
inspection would have revealed the dangerous condition”). This analysis
is squarely on all fours with the case at bar.
The danger presented by the burned out light in this case was, in essence, a
latent condition. 
The stairs and path were
safe during daylight hours but unsafe in the darkness, absent artificial
lighting, a conclusion conceded by defendant’s maintenance supervisor.
The cottage was located in an area of Camp Smith described by Mr. DeNoyelles as
a “limited use” area that admittedly was the lowest priority for
maintenance attention. He contended that his department was understaffed and
implied that the cottage area was the first to suffer from such understaffing.
The court concludes from Mr. DeNoyelles’ testimony that it was possible
for an outdoor lighting fixture to be non-functional for extended periods
without anyone noticing it. He conceded that there was no regularly scheduled
inspection to determine if the lighting was working. From these facts, the
court concludes that defendant had a duty to periodically inspect the area to
ascertain that the lighting system was operating properly. Defendant cannot
utilize its self-imposed lack of knowledge that the cobra light needed
replacement as a shield against liability for the foreseeable consequences of
allowing the dangerous condition caused by the lack of lighting in the area.
These circumstances created the duty to conduct reasonable inspections which,
the court finds, would have revealed the existence of the dangerous condition
and thereby prevented the injury to claimant. All of these findings are
particularly apposite where defendant is engaged in the propietary function of
innkeeper, renting units to visitors.
Nevertheless, as conceded by her counsel, claimant must share some degree of
culpability for her accident. She was aware of the uneven nature of the rocky
terrain and elected to traverse it notwithstanding that she could not see where
she was walking. This was not an emergency situation and there was no
imperative to proceed in the dark as she did rather than retreat to the cottage
and obtain assistance from her husband or use her cell phone to call for
assistance from security personnel. Under the circumstances, the court also
finds claimant culpable. Accordingly, claimants’ damages will be reduced
The Clerk of the Court is directed to enter interlocutory judgment in
accordance with this decision, after which the court will schedule a trial on
October 6, 2008
Plains, New York
HON. STEPHEN J. MIGNANO
Judge of the Court of
.Unless otherwise indicated, all quotations
are from the electronically recorded trial proceedings.
.It is possible this condition could have been
a patent hazard had there been any inspection at all. Thus we are left with the
existential debate whether if a light burns out in the forest but there is no
one around, is it really dark?