NOTHHELFER v. THE STATE OF NEW YORK, #2008-029-054, Claim No. 111387
State found not liable for trip and fall accident. Claimant did not establish
that accident occurred on State property. Also, defect was too trivial to be
ANNE L. NOTHHELFER
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
STEPHEN J. MIGNANO
WORBY GRONER EDELMAN, LLP
By: Campson & Campson, Esqs.By: Paul J. Campson, Esq.
BRILL & ASSOCIATES,
P.C.By: Haydn J. Brill, Esq.
December 5, 2008
See also (multicaptioned
Claimant seeks damages for injuries allegedly sustained in a trip-and-fall
accident on the grounds of the New York State Veterans’ Home in Montrose.
The trial was bifurcated and only the issue of liability will be
Claimant was the sole witness to testify. On August 17, 2004, the date of the
subject incident, she was employed by the Keon Center, a non-profit facility for
the developmentally disabled located across the street from the veterans’
home. She started work at 8:00 a.m. that morning and at some point left the
facility to escort two clients to the nursing home where they worked as
volunteers. They left the Keon Center and crossed the street to a road claimant
described as inside the grounds of the veterans’ home. The weather was
clear and sunny. Claimant was wearing her contact lenses. They walked in a
grassy area alongside the road, with claimant about 15 feet behind her clients.
There was no sidewalk in the area. As she walked, the heel of her right shoe
caught on the edge of a concrete block that was almost totally imbedded in the
turf and she fell.
A few days after the incident, claimant took four photographs of the area
(Exhibits 1, 2, 9, and 10). The concrete block is most clearly shown on
Exhibits 1 and 10. Claimant stated that the photographs accurately depicted
what she saw on the date of the accident and specifically that the block looked
“just like Exhibit 10.” On one side of the grassy area is a road
and on the other side is a black metal fence that surrounds the State
Claimant had worked at the Keon Center for approximately one year prior to the
accident and had walked on the grassy area in question before. She testified
that she usually drove her clients from the Center to the veterans’ home
but that when the weather was nice they occasionally walked. She had never seen
the concrete block in the turf before and did not know how long it was there.
She also did not know how it got there or if anyone had ever complained about
it. She did not see any construction in the area at the time. Asked by defense
counsel specifically how the accident occurred claimant stated she was walking
along, watching her clients, “when my heel caught in the hole of the block
causing me to fall to the left.” 
Defense counsel pointed out that at her deposition, claimant stated “my
foot hit the block and I fell to the left” and that in an affidavit in
opposition to a summary judgment motion she stated “my foot caught in a
depression on the side of the road.” The court does not find any
significant discrepancy or contradiction in these various accounts and credits
claimant’s testimony as truthful at least as to her belief.
The transcript of the deposition of Eric Van Zandt, Plant Superintendent of the
State Veterans’ Home, was submitted into evidence as he was unavailable on
the trial date (Court Exhibit 1, “EBT”). The sole relevance of his
testimony, as well as copies of three e-mail messages that were received as
Exhibits 4, 5, and 6, was with respect to the question of whether the State of
New York or the federal government was responsible for the maintenance of the
area where claimant fell. Van Zandt indicated that the federal government owned
and maintained the road that formed one border of the grassy strip but the State
owned the black metal fence surrounding the State facility that formed the other
border. The concrete block was imbedded in the grass between the road and the
fence. Although Van Zandt wrote an e-mail on August 19, 2004 to a fellow State
employee stating that “an employee from ‘Keon’ . . . tripped
on our property and sustained injury” (Exhibit 4), he testified that he
did not actually know who owned the property where claimant tripped (EBT, p 16)
but that he identified the area as “our property” because
claimant’s supervisor at the Keon Center told him that claimant fell on
State property (EBT, p 19).
Van Zandt was unsure who cut the grass in the area in question. He was aware
that the State had a landscape contractor who maintained the lawn on the
building side of the fence, however, he did not know if that contractor also
maintained the grassy strip on the other side of the fence, where
claimant’s accident occurred.
Van Zandt testified that he attempted to contact claimant upon his return from
vacation in late August 2004. He was not able to contact her until October of
that year, and he went with her to the accident scene on October 6, 2004. Later
that day, he had two of his workers remove the concrete block and fill in the
hole (EBT, pp 60-70, Exhibit 6). He had also attempted to contact a Mr.
Porter, the federal government’s safety officer for the VA hospital both
on October 6 and prior thereto, all without success. It was his understanding
that Mr. Porter had been at the scene with claimant on the day of the accident
and had told her that the location was not within the VA’s jurisdiction.
He testified that he had his employees remove the block but did not know if the
area was owned by the State or the federal government. The basis of his belief
that the federal government might have owned the area where claimant fell was
“[b]ecause that area is right on the property line, and the road is right
next to it, and I knew they owned the road” (EBT, p 70).
It is a basic principle of tort law that absent a duty of care to the injured
person, a party cannot be held liable in negligence (Palsgraf v Long Is. R.R.
Co., 248 NY 339).
“As a general rule, ‘[l]iability for a dangerous or defective
condition on property is ... predicated upon ownership, occupancy, control or
special use of the property ... Where none is present, a party cannot be held
liable for injuries caused by the dangerous or defective condition of the
property’ (Noia v. Maselli, 45 A.D.3d 746, 746, 846 N.Y.S.2d 326,
quoting Minott v. City of New York, 230 A.D.2d 719, 720, 645 N.Y.S.2d 879
[internal quotation marks omitted]; see Balsam v. Delma Eng'g Corp., 139
A.D.2d 292, 298, 532 N.Y.S.2d 105).”
Ruffino v New York City Transit Auth.
( __ AD3d __ , 865 NYS2d 667 [2d Dept 2008]).
The threshold question presented in this case is whether the State of New York
owned, occupied or controlled the area where claimant was injured or, if the
answers to those questions are negative, whether the area was subject to a
special use benefitting the State as the owner of the adjoining property. As to
this and all other elements of claimant’s cause of action, the burden of
proof is on the claimant.
Claimant relies exclusively on the fact that defendant’s employees
removed the concrete block after claimant’s fall to prove that defendant
either owned the subject area or had sufficient control so as to create a duty
of care to persons walking on the property. In cases where control is at issue,
proof of a post-accident repair may be considered probative and is sufficient to
avoid summary judgment in favor of defendant and present the finder of fact with
an issue for determination (Scudero v Campbell, 288 NY 328 ;
Boreyko v Bay Ridge Sav. Bank, 274 App Div 1060 [2d Dept 1949]).
However, such proof is not dispositive at trial and is merely one fact to
consider in determining whether claimant met her burden of proving each element
of her cause of action by a preponderance of the evidence. Here, claimant was
required to establish that it is more likely than not that the spot where she
tripped was owned and controlled by the defendant as opposed to the federal
government. “If the evidence is evenly balanced, [claimant] has not met
[her] burden” (Rinaldi & Sons v Wells Fargo Alarm Serv., 39
NY2d 191, 194 ).
While proof of a post-accident repair often indicates that the party
undertaking the repair controlled the area in question, in this case the
testimony of Van Zandt, who made the decision to have his employees remove the
concrete block and fill the hole, does not warrant such an inference. The
repair was made almost two months after claimant’s accident. During this
period, Van Zandt unsuccessfully attempted to contact the safety officer at the
Federal VA hospital. After viewing the scene with claimant, he directed his
employees to make the repair despite the fact that he did not know which side of
the property line the block was on. He noted that the block was “right
next to” the federally-owned road (EBT, p 70), a conclusion supported by
the photographic evidence, particularly Exhibit 1, which shows that the block
was closer to the road than to the fence surrounding the State Veterans’
Claimant’s possession of deeds containing metes-and-bounds descriptions
of the State’s property (Exhibits 7 and 8) would have made it a simple
matter to obtain a survey of the property line in question and definitively
determine whether the concrete block was located on State property. No such
evidence was submitted.
The court finds that, viewed as a whole, the record does not support the
conclusion that it is more likely than not that the concrete block was located
on State property as opposed to federal property. Additionally, the
“special use” doctrine is inapplicable to the facts of this case,
which do not involve any sort of improvement benefitting defendant’s
property (see generally, Kaufman v Silver, 90 NY2d 204 ).
In view of the lack of proof in the record discussed above, the court need not
determine the existence of a “dangerous condition”. However, the
court notes that even had claimant established that the concrete block was
located on State property, the proof would likely have fallen short of that
required to establish a dangerous condition such that the failure to remedy it
prior to claimant’s accident constituted negligence.
The State’s duty as a landowner is one of reasonable care (Preston v
State of New York, 59 NY2d 997 ; Basso v Miller, 40 NY2d 233
) and it is often said that the State, like any landowner, is not the
insurer of the safety of those who come onto its premises. The photographic
evidence shows a concrete block almost completely buried in the turf, with a
small depression, possibly no lower than one inch, on one side. No measurements
were provided to the court. While there is no bright line test that requires
that an alleged defect be of some minimum dimension to invoke a duty to
remediate, the condition shown in the photographs is not materially different
from similar conditions that pedestrians may reasonably expect to encounter in
unpaved turf areas and may reasonably be characterized as “too trivial to
be actionable” (Hawkins v Carter Community Hous. Dev. Fund Corp.,
40 AD3d 812 [2d Dept 2007]; see Trincere v County of Suffolk, 90 NY2d 976
, affg 232 AD2d 400 [2d Dept 1996]; Hagood v City of New York, 13
AD3d 413 [2d Dept 2004]; Riser v New York City Hous. Auth., 260 AD2d 564
[2d Dept 1999]).
Accordingly, for the reasons stated the court finds that this claim must be
dismissed on the merits, and the Clerk of the Court is directed to enter
December 5, 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.