New York State Court of Claims

New York State Court of Claims

PHILLIPS-HAMEL v. THE STATE OF NEW YORK, #2008-029-041, Claim No. 112657


Synopsis


Liability found for negligent maintenance of premises (Camp Smith) based on unsafe condition caused by malfunctioning outdoor lighting and defendant’s failure to inspect.

Case Information

UID:
2008-029-041
Claimant(s):
ROSEMARIE PHILLIPS-HAMEL and STEVEN HAMEL
Claimant short name:
PHILLIPS-HAMEL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112657
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant’s attorney:
BASCH & KEEGAN, LLPBy: Maureen A. Keegan, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Wanda Perez Maldonado, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 6, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 day.

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,” [1] and 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 (Exhibit B).

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 [1983]).

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 [1968]).

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 [1986]). 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 [1977]); 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. [2] 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 by 30%.

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 damages.


October 6, 2008
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims




[1].Unless otherwise indicated, all quotations are from the electronically recorded trial proceedings.
[2].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?