New York State Court of Claims

New York State Court of Claims

JOHN KIRBY v. STATE OF NEW YORK, #2008-036-403, Claim No. 110566


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:

By: David S. Gould, Esq.
Steven Salzman, Esq.
Defendant’s attorney:
By: Michael C. Rizzo, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 12, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the court’s decision after a three-day trial where claimant, John Kirby, claims defendant’s negligence caused him to fall from gymnasium bleachers as he stepped onto the seat board of the bottom row after he descended from the rows above. The accident occurred on November 9, 2003 following a basketball game claimant had watched in the gym of the Franklin Correctional Facility where he was an inmate at the time.

Based on photographs of the bleachers taken by defendant’s expert three years after the accident, claimant contends an essential support piece for the extreme left portion of the bottom row of the telescopic bleachers, called an “outrigger,” was missing from the deck assembly, and that it must have been missing since the time the bleachers were installed in 1986 because the photos show that no outriggers were present and holes for them had not been punched. He asserts an outrigger would have furnished support to the floor for this portion of the bleacher row. Claimant further alleges another part was missing at the time of the accident, a first row “tier catch.” This is supposed to lock the first row of the telescopic bleacher deck in place after the row is pulled out from the wall to its open position so the row will stay open and not move horizontally, further away from the wall or closer to it. Unlike the outrigger, claimant does not assert this part was missing when the bleachers were installed. Claimant’s theory is that because these items were required and missing at the time of the accident, the extreme left side of the bottom row of the bleacher seating “collapsed . . . shifted or swayed” when claimant stepped down onto it, thus causing the seat to crack at that spot and claimant to fall off. He argues that defendant is liable for negligent installation of the bleachers, which allegedly created the dangerous condition of the missing outrigger, and also for negligent inspection and maintenance of the bleachers because “routine inspection by anyone with knowledge about bleachers” would have discovered the missing outrigger and the missing tier catch as unsafe conditions which had to be corrected.

Defendant counters that the bleachers were stable, and neither the missing outrigger nor missing tier catch ever constituted a danger. The bleachers were used 200 times a year for 17 years since they were installed and there were no reports of prior accidents or injuries, or of complaints made or grievances filed. Inspections of the bleachers allegedly were conducted twice a day whenever they were in use and they were found to be stable and without apparent defects. Earlier that same night, claimant had walked up, down and up the bleachers in the same area without incident. Defendant thus argues it cannot be held responsible for creation of a dangerous condition, nor can it be charged with actual or constructive notice of a dangerous condition. Defendant also asserts claimant’s own negligence contributed to the accident because he walked with a cane, yet did not use another section of bleachers which allegedly was open that night and which had a staircase with a non-skid surface–an allegedly safer route to and from the upper rows.

A summary of the testimony insofar as it bears on the court’s findings follows.

Claimant’s Case

Claimant testified that on the evening of November 9, 2003 he came to the gym to watch a basketball playoff game with other inmates. He used a cane for support because his bad back had acted up and he also had a knee injury. He walked with a limp. As required, he changed from his boots to sneakers before walking on the gym floor. According to claimant, only one of the five separate sections of telescopic bleachers[1] was open. It was the middle section. Inmates already were crowded along the bottom, second and third rows. He walked to the left corner of the bottom row and proceeded to climb up the left side of the bleachers to the fourth of five rows of seating where there was a place for him to sit next to two other inmates. He ascended by stepping on the successive seat boards themselves. Claimant, who is six foot two inches tall and weighed 230 pounds at the time, described the bleachers at trial as “shaky,” “wobbly,” “unstable,” and they “rattled” as he walked up. “You make sure . . . you keep your balance when you walk up the bleachers.”[2]

At one point during the game, he went to the bathroom by walking back down the bleachers in the same way and at the same location that he originally had walked up; and then he walked back up again to resume his seat in the fourth row. The bleachers were as “wobbly” on this round trip as when he walked up at the start of the game, he said.

At the end of the game, he started back down again to leave. Claimant testified the bleachers “drifted,” “shook,” and “rattled.” He was not asked whether the bleachers had emptied out by then or how many inmates were walking down at the same time. He said the bleachers exhibited “more swaying” as he stepped from the third to the second row. They were “extremely shaky.” When he stepped on the left corner of the first row, the same corner where he had entered the bleachers before, “I just collapsed, it like shifted or swayed. You know, I don’t know if it went in or out. I just know I wound up on the floor . . . it just collapsed.” A correction officer came over and claimant told him he could not get up. According to claimant, he was not aware the bottom seat board was cracked. One of the inmates pointed to the board, went over to it “and kicked it and it was broken.”

After the accident, claimant wanted to file a grievance and requested both the name of the correction officer who was on duty that night and a copy of his report, but was refused. That same night, he wrote to the Superintendent of the facility (Ex 10). He described his fall from the bleachers, “I got up and started walking down the steps of the bleachers then the bottom step collapsed. I fell and hurt my right leg.” His letter described that he learned after the accident that the seat had cracked “[the correction officer] then went over to the bleachers where another inmate pointed to the broken step. At this time the office [sic] push down on the broken step with his foot.”[3]

Counsel for claimant then introduced into evidence excerpts from the deposition testimony of three correction officers pertaining to what they did after the accident.

Officer Neil Coulombe was the regular officer on the 3 p.m. to 11 p.m. shift responsible for, among other things, conducting a fire and safety check of the gymnasium and its equipment every day (but not necessarily a bleacher check). He said that after he was told there had been an accident, he did not do any investigation of the circumstances of claimant’s fall. He did not inspect the bleachers after claimant told him he had fallen.

Officer Steven Martin used a memorandum he prepared several weeks after the incident to refresh his recollection at his deposition. He was in the gymnasium at the time of the accident. He saw a group of inmates congregating at the bleachers and went to inquire. He saw claimant on the floor, who told him he had fallen from the bleachers. Mr. Martin went over to where claimant said it happened and noticed the seat board was cracked. In his memorandum he wrote that he “stand [sic] on it and it hold [sic] me.” He did not say anything to any of the inmates who were standing around. He then sent claimant to the front desk of the gym so he could go to the infirmary.

Sergeant Walter Barse worked the 3 p.m. to 11 p.m. shift. He was assigned to investigate the grievance which claimant later filed. He prepared a report (Ex 2 at deposition, 22 at trial) which states “photos taken of the incident are attached,” but he could not recall how many photos there were. He reviewed an injury report and a report of the fire safety officer (Ex 15 at deposition, Exs. 9, C at trial). The printed form for the fire safety officer’s report includes a section headed “Cause of Accident” with boxes to check which describe different causes. The sergeant said the fact no boxes were checked did not indicate anything to him. He interviewed claimant and his witnesses, and all the officers who were on duty the night of the accident. He made no notes. He visited the gymnasium, pulled out the section of bleachers in question and inspected the “bottom seat” on the left side. This inspection occurred after the cracked seat board already had been replaced. The picture of the broken board (Ex. 8 at deposition) probably had been taken by the fire safety officer. His report concluded that neither the security staff nor the correction officers were at fault in their behavior after the accident, and recommended that the grievance be denied. He included the following observation in his report: “Inmate Kirby also told me that he had been sitting on the top row of the bleachers, this would be insignificant except that inmate Kirby needs the aid of a cane to get around, therefore put himself in grave danger by climbing up the bleachers.” Neither the grievance nor the decision denying it were introduced in evidence.

Claimant also introduced excerpts from the deposition testimony of Henry Venne, employed at Franklin as a general mechanic/locksmith. He testified he made repairs to the middle and far right sections of the bleachers on May 13, 2003, six months before claimant’s fall from the middle section. The problem with the middle section was a wheel which prevented the section from closing properly. He found it was a loose bolt and the wheel had come off its track. He put the wheel back on track and tightened the bolt. On the far right section, a release appeared to be broken and he testified that he replaced the latch. Mr. Venne’s principal responsibility was to maintain doors and locks at Franklin, and he also did some welding.

Claimant’s expert witness was Thomas I. Steward, owner and operator of a gymnasium equipment installation and service business who has been installing and servicing bleachers since the mid-1980s. He said he had installed more than a thousand bleachers of all types and inspected and serviced hundreds. Based on Mr. Steward’s review of more than 100 photographs of the bleachers taken by defendant’s expert when the latter physically inspected the bleachers on a visit to Franklin in early 2007, Mr. Steward testified he recognized them as manufactured by Hussey Company, Model 2000 (not referring to the year of manufacture). He explained that Hussey has a training program to become certified by the company to install and service their products. He completed the training and is so certified. He has worked directly with the Model 2000.[4]

Mr. Steward said bleachers should be maintained annually. This should include tightening all hardware, inspecting and replacing non-functioning equipment and lubrication. He did such maintenance on Hussey bleachers under contracts offered to customers by the manufacturer.

Based on Mr. Steward’s review of the photographs taken by defendant’s expert, he testified that Ex. K-11 shows there was no outrigger (Ex. 16, physical sample of an outrigger) at either end of the bottom row of the bleachers. He explained that the frame to the floor under the bottom row of the bleachers was over four feet from each end of the row, resulting in an overhang beyond the frame at each end. Without the outrigger, there was no vertical member from the bottom row to the floor to support the row where it cantilevers out beyond the frame. According to Mr. Steward, when weight pushes downward on the unsupported ends of the bottom row, the deck, including the seat board and the riser, will move down and cause the end to have a teeter totter or diving board-like effect. He asserted the outrigger is “a critical component for the safety of the bleacher.” He knew of no bleachers such as these that did not have outriggers by design. Mr. Steward opined that no outriggers ever were installed on these bleachers because he could see from the photos that the spacing of two holes punched on the deck support under the seat board does not correspond to the spacing of the outrigger’s two holes. Proper installation would have required another hole to be drilled in the deck support to line up with the holes of the outrigger. Ex. K-13 shows this never was done, he asserted.

Mr. Steward further testified Ex. K-25 shows the tier catch (Ex. 19, physical sample of a tier catch) and its linkages (Ex. 20, physical sample) also were missing for the first row of bleachers. These act as a brake which, when dropped down into position, prevents the first row deck from moving in toward or further out from the wall after the telescopic bleacher is pulled out to its open position. Because the tier catch was not present, the first row seat board would have been susceptible to such movement, he said. Unlike his testimony that the 2007 photos showed outriggers never were installed, Mr. Steward did not make that assertion regarding the tier catch – only that the 2007 photo showed the one for the front row of the middle section was missing at the time of the photo.

Mr. Steward said the seat board cracked at its extreme end because there was no support at the end of the bleacher when claimant stepped on it. Later, he clarified that he did not know how the board cracked, only that he never had seen a crack like this one when support was present – be it an outrigger or a frame – without there also having been some impact mark showing on the board. He did not opine that the crack in the board caused the accident. “It’s not about the board,” he said.

Defendant’s Case

Defendant called a number of employees at Franklin, as well as an expert witness.

Robert Ouimet was a recreation program leader and supervisor who came to Franklin in 1986 shortly after the bleachers were installed and while the building was still being constructed. Since then, he said, the bleachers were used 200 or more times per year and there was never any complaint regarding their stability from either the inmates or the recreation department. He also was not aware of any accidents before this one.

Mr. Ouimet said the space underneath the bleachers was dust-mopped every day and a visual check was made of the entire bleachers, looking for anything that should not be there. The stability of these bleachers was “outstanding,” he said. He had been in schools with bleachers which shook and moved, and it would be “hard to find anything better [than Franklin’s], especially for as old as they are.”

Mr. Ouimet said two sets of bleachers would have been required and open that night. He based this on the number of people in the gym at the time, 98. He reasoned that, accounting for those who would have been in the gym’s weight room and others who were members of the basketball teams or were workers, there were probably 45 people sitting on bleachers. If packed onto only one section, they would have been sitting shoulder to shoulder.

On cross-examination, he said the fire and safety officer, who ordinarily was responsible for determining the cause of the accident, was on vacation at the time of the accident and someone else was assigned that week. That person’s report (signature not identified) (Ex C) described the accident as claimant having “stepped on bottom seats [sic] board broke inmate fell to floor. . . .”

Defendant called Correction Officers Coulombe and Martin, and Mr. Venne. Their depositions had been used by claimant on his direct case, supra.

Mr. Coulombe elaborated on the fire and safety inspections he conducted as part of his responsibilities as a gym officer from 1997-2003. He said the bleachers are used at least once a day, every day, and inspections are conducted at the beginning and end of every work shift. These inspections are intended to look for anything which could be used as a weapon or would make the bleachers unsafe to use. The greatest concern is that inmates might stash contraband, drugs, a razor blade, a loose board or a piece of steel underneath the bleachers or inside a coat to mark something. The emergency lights on the wall above the bleachers also must be checked. He does this by climbing parts of the bleachers every day and walking along the top row to inspect the lights. His approximate weight in November 2003 was 383 pounds and he climbed and descended the bleachers daily, sometimes taking two seat boards at a time. Mr. Coulombe said he never noticed any missing bleacher parts or hanging pieces of metal underneath. He also never thought the bleachers needed lubrication by their sound. He was not aware of any accidents ever having occurred on his shift, and never received a complaint about the condition of the bleachers.

On cross-examination, Mr. Coulombe did not know what an outrigger is, nor a tier lock. He never received instructions about how bleachers work or how they should be maintained. His idea of a broken bleacher is a broken board or weld, a missing bolt or metal support or strut, or wheels not functioning. He did not know whether bleachers were supposed to have solid platforms or could be expected to exhibit some shaking, but believed all bleachers have some “give.” His framework for comparison of bleachers is that his son plays hockey. He said that when he walked these Franklin bleachers he never had any sensation they were not firm to hold him. Although he was asked by Sergeant Barse (who was charged with determining how the accident happened [Ex A]) to prepare a report for the sergeant, he did not walk the bleacher section where claimant fell. He also did not walk the bleachers on the night of the accident after claimant told him he fell, even though he was the gym officer on duty that night.

Mr. Coulombe said there “always” was more than one section of bleachers pulled out. It was routine for inmates to walk up and down on the seat boards. There was no rule, regulation or order requiring anyone to use only the non-slip steps when walking up or down. There was no sign to that effect, nor had he ever instructed an inmate to walk on the steps.

Mr. Martin elaborated on his deposition testimony. On the night of the accident, when he looked at the wooden seat where claimant fell and saw that it was cracked, he did not notice a chunk of wood was missing from it, as shown on Ex. I (he did not know who took the picture or when it was taken). After the accident he walked and jumped on the board that night. It was secure, he said. It did not move or shift in any way and he saw no problem with it. At his deposition, he said: “It hold well. I didn’t see no problem with so far as it collapsed.”

Mr. Venne, the general mechanic/locksmith said he had no background maintaining bleachers. He never did any general maintenance of the bleachers. He simply was called for two problems on May 13, 2003, one where the middle section would not open and the other where the far right section would not close. For the problem with the middle section, he put the wheel back on its track.

Defendant’s expert was Frederick Bremer, a forensic architect whose experience includes work with bleachers at a YMCA and several schools for which he designed gymnasium spaces. He also took a three-hour class devoted to bleachers which covered how they are supported, how their structure works, their materials and their strength.[5]

Mr. Bremer visited Franklin in early 2007 and inspected the bleachers for 1¾ hours, examining the underside, the welds, bolts and wheels, and how the bleachers were secured to the wall. He testified the bleachers were very solid and stable, with a slight “give” as when one walks on a carpet. “It definitely didn’t wiggle. It was very firm.” The wheels made squeaking noises as the bleachers opened and closed. He took 112 photographs on a disc (Ex. K), some of which were introduced in evidence by each side at trial.

The witness addressed Mr. Steward’s testimony that there was no support on the left end of the bleacher because the outrigger was missing. He said he measured the distance from the last set of wheels to the left end of the bleacher – the overhang – as four feet, three inches. Mr. Bremer pointed to Ex. K-13 as showing two means of support for the seat board at its end. The picture shows the seat board being supported by a welded metal bracket (Ex. 17, physical sample) placed within an inch or an inch and a half of the left end of the wooden seat. He explained that when the vertical brace of the bracket is fastened to the facial board (also known as a kickboard or riser) under the front portion of the seat, the facial board is made to act as a “structural member” which provides additional support for the seat board. He explained that metal brackets are secured in this fashion all along the length of the seat board and the facial board. The four-foot-three overhang or cantilevered portion of both boards thus “act[s] as the structure as well.”

Mr. Bremer asserted that the last metal bracket at the left end of the seat board is situated such that the crack of the board at its left edge (shown on Exs. 5, I) could not have occurred as a result of the board having bent there. When claimant stepped onto it there would have been no “stress and strain” on this left edge because it was braced at that spot. The stress would have been more to the right of the crack. He opined that the crack might have occurred because of a “latent defect” in the wood. He said he found it hard to find “the forces and faults elsewhere throughout this system” which would produce a crack right next to the bolted steel connection of the metal bracket below it.

With regard to the tier catch, Mr. Bremer took issue with Mr. Steward’s testimony that it had a structural function. Its only purpose, he asserted, was to act like a drawer stop, that is, to stop a row of bleachers as the next telescopic row is pulled out. He was asked whether, in his opinion, the missing tier catch had anything to do with the cracking of the wood. He said it had no effect because the place for it is remotely located from where the crack occurred.

The witness opined that the overall operation and stability of the bleachers met architectural standards. “I purposely stood on the edge where we’re all talking about and marched myself up and down on more than one occasion on both sides to see what the instability was, and I couldn’t find the instability, not to any noticeable degree.” He added on cross-examination that he had walked “along the edges, in the middle, both up and down. I also stood still on the bleachers and tried to make them wiggle.”

On cross-examination he confirmed Mr. Steward’s observation from the photographs that he found all the outriggers were missing from all five sections of the bleachers. He speculated – but did not know – that because he saw no holes in the frame where the outriggers would be attached, Hussey, the manufacturer, may not have supplied them with these bleachers. “You can stand on the end of that bleacher and jiggle yourself to death, and there’s no vibration. There’s some vibration, but like a carpet . . . seeing that there wasn’t any abnormal up and down motion at all, then the outrigger wasn’t necessary . . .” “There was so little movement . . . I don’t think I could perceive it.” “If it was stiffer in the center portion vs. the edge, I couldn’t detect it.” Counsel for claimant confronted Mr. Bremer with pages which he said were from the Hussey 2000 installation manual (Ex. 23 id.).[6] Step #9 states “For first tier install outrigger as required to underside of deck stiffener.” The witness acknowledged that “[t]he manual calls for that.” He nevertheless was of the opinion that the outriggers “aren’t necessary on this particular bleacher because the bleacher itself is stable. . . .I don’t know if . . . it was supplied. It’s just in their manual.”

As to the tier catch for the first row, Mr. Bremer’s personal observation confirmed Mr. Steward’s from the photo. Mr. Bremer did not see it. He reiterated his direct testimony, however, that the function of the catch is confined to stopping the opening of the telescopic bleacher row.

Claimant’s Rebuttal[7]

Claimant called back Mr. Steward as a rebuttal witness.

He asserted that a tier catch has no function in the opening of a bleacher, contrary to Mr. Bremer’s explanation of its function.

He opined that a bleacher missing its outriggers cannot be certified as safe. He disagreed with Mr. Bremer’s opinion that the metal brackets were sufficient to support the seat board. The overhang, that is, the cantilever of more than four feet from the last wheels of the frame to the end of the bleacher was too much distance without outrigger support. The more the vertical movement, the more the spring action, he asserted. He also disagreed with Mr. Bremer’s opinion that because the crack in the wood was only an inch from the supporting metal bracket, it could not have been caused by the overhang which lacked an outrigger. The entire left end of the bleacher was not supported by the outrigger, he said, and will move vertically. The “give” and trauma to the wood will be just where the weight actually was applied.[8]

The court’s findings of fact and conclusions of law follow.
* * *

A landowner has a duty to use reasonable care to keep its premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable. PJI 2:90. The duty to use reasonable care also applies to the State in the protection of its inmates from foreseeable risks of harm. Bowers v State of New York, 241 AD2d 760 (3d Dept 1997). This does not mean the State is an insurer of inmate safety, and negligence will not be inferred from the mere occurrence of an accident. Melendez v State of New York, 283 AD2d 729 (3d Dept 2001); Condon v State of New York, 193 AD2d 874 (3d Dept 1993). In order to recover on a claim for negligence, claimant must prove (i) the premises were not reasonably safe, that is, a “dangerous condition” existed; (ii) defendant was negligent in not keeping the premises in a reasonably safe condition, that is, defendant either created a dangerous condition or had actual or constructive notice of it and failed to correct it within a reasonable time; and (iii) defendant’s negligence was a substantial factor in causing claimant’s injury, that is, the negligence proximately caused it. PJI 2:90; Williams v State of New York, UID # 2004-031-518, Claim No. 105129 [Ct Cl, November 8, 2004], Minarik, J., citing Goldman v Waldbaum, Inc., 297 AD2d 277 (2d Dept 2002); Dapp v Larson, 240 AD2d 918 (3d Dept 1997).

Applying these legal principles to the facts here, the court finds claimant failed to prove by a fair preponderance of the evidence that a dangerous condition was the proximate cause of claimant’s fall from the bleachers to the gymnasium floor. Claimant failed to prove that the absence of outriggers on the bleachers since they were installed, including the outrigger missing from the bottom row where claimant fell, was a dangerous condition. Claimant failed to prove a tier catch for the front row where claimant fell was missing at the time of the accident.[9] Even if claimant had proved it was missing at that time (as it was in 2007 when the bleacher section was photographed), claimant still failed to prove that its absence, either alone or together with the missing outrigger, was a dangerous condition. Claimant failed to prove that the crack in the seat board which was discovered immediately after the accident was caused by, or resulted from, a dangerous condition. The court having found a failure to prove that a dangerous condition existed, it need not proceed further. PJI 2:90

A discussion of certain aspects of the evidence as it bears on the court’s findings follows.
Claimant’s testimony was the only account of what happened. Neither party presented any other witnesses to the accident at trial. Claimant’s description that the bottom step “just collapsed” when he stepped on it appeared to the court as more of a figure of speech, or his sensation when falling than a description of what actually happened. He also said, “[w]hen I collapsed, it like shifted or swayed. You know, I don’t know whether it went in or out. I just know I ended up on the floor.” (emphasis added) No evidence beyond claimant’s statement showed that the bottom row literally “collapsed.” On the contrary, the bottom row remained in tact after the accident. Both sides agree the cracked board never split apart. Also, Mr. Martin, the correction officer, said he walked and jumped on the board after the accident and it did not move or shift in any way. “It hold well. I didn’t see no problem with so far as it collapsed.” Claimant testified that before the accident he had ascended, descended and then ascended the bleachers again in the same extreme left area without incident. Although the alleged dangers to the structure of the bleachers were no different then, claimant did not use words like “bend,” “dip” or “dump”–let alone the word “collapse”–to describe the condition of the bleachers that he encountered on those trips.1[0]

The question whether the missing outrigger alone or in combination with the missing tier catch constituted a dangerous condition then was left to the experts. The court found both experts qualified in their respective fields, although the relevant expertise of each was focused differently. Mr. Steward worked far more extensively with bleachers and their parts, and actually had installed and maintained the Hussey model 2000. His opinion was that the absence of the outrigger would cause the overhang to flex akin to a diving board and “move downward;” and that without a tier catch the bottom row could move in toward the wall or further out from it. Mr. Bremer’s training and experience as a forensic architect was more directed at the structural integrity of the bleachers and their components. His view was that the outriggers were not necessary on these particular bleachers1[1]; that the metal brackets fastened under the wooden seat and all along the facial board provided sufficient structural support so the overhang would not flex; and that the tier catch had no structural component to it, and acted rather like a stopper on a drawer.

Neither expert knew what caused the seat board to crack. Mr. Steward speculated the lack of support where claimant stepped might have caused it to crack. Mr. Bremer, on the other hand, saw no connection between the crack and the absence of support from an outrigger and/or a tier catch because the seat board was supported by the metal bracket. He could not find the “forces and faults” and “stress and strain” which, either that night or over time, would have produced a crack immediately adjacent to the bolted steel bracket, and thus speculated there might have been a latent defect in the wood. Claimant had testified that immediately after he fell an inmate kicked the seat board “and it was broken.” There is no proof of what the board actually was like before the inmate kicked it and the officer’s foot pushed down on it. Neither Mr. Steward nor Mr. Bremer asserted that the cracked board actually caused claimant to fall. Mr. Steward, as claimant’s expert, did his best to steer the court away from the seat board itself; “[i]t’s not about the board,” he said.

In the final analysis, the court is called upon to evaluate the plausible competing theories of these experts within the burden of proof which must be met by claimant. Shaw v Binghamton Lodge, 155 AD2d 805 [3d Dept 1989] (“The resolution of conflicting expert testimony is a matter peculiarly within the province of the jury [citation omitted], which may accept the theory that, in its view, best explains the point at issue and is supported by the evidence. [citation omitted]). Mr. Steward’s testimony relied solely on the photos taken by Mr. Bremer to which he applied deductive reasoning based on his experience with other bleachers. Mr. Bremer, in contrast, went to Franklin to inspect the bleachers and actually tested his theory there in 2007. He stood on the left end of the front bleacher row (which did not have an outrigger or a tier catch), and testified that he found only a slight “give.” To him, it was like walking on a carpet which has a little movement when you press down on the nap. The row was not unstable “to any noticeable degree.” “[T]here wasn’t any abnormal up or down motion at all,” and it was no stiffer in the center portion than at its left overhang. He also tried to make the row “wiggle” and it did not.

The court finds Mr. Steward’s testimony wanting because, under these circumstances, it is insufficiently speculative to carry claimant’s burden of proof. Vergara v Scripps Howard, 261 AD2d 302 [1st Dept 1999] (expert’s speculation discounted as unsupported by any direct evidence, citing Trestman v Richard L. Heimer, P.E., P.C., 163 Misc 2d 987, 988 [App Term 2d Dept 1995], where a plaintiff’s verdict was set aside, in part, because plaintiff’s expert testified based on photos shown to him which he did not take, while defendant’s expert testified based on an actual inspection of the premises). See also, Pena v Women’s Outreach Network, Inc., 35 AD3d 104 (1st Dept 2006) (expert’s conclusory and speculative opinion about a dangerous condition of the steps of a mobile van based on an examination of testimony, a bill of particulars and photographs without ever having examined the van, held insufficient to defeat summary judgment); Grob v Kings Realty Assoc., 4 AD3d 394 (2d Dept 2004) (expert’s inference linking plaintiff’s fall to his opinion that subject stairs were defective because of uneven and irregular dimensions of the step risers and tread depths was purely speculative).1[2] That Mr. Steward was speculating assumes still greater significance in light of both the testimony of Mr. Martin that immediately after the accident he walked and jumped on the cracked seat board and it did not move or shift and was secure, and of claimant’s own testimony that earlier in the evening he had thrice traversed the same area on the bottom row without it having dropped down or collapsed.1[3]

The foregoing analysis of the evidence put before the court also is made against the historical backdrop that despite all five bleacher sections having been installed without outriggers in 1986, no accidents, complaints or grievances were reported during 17 years of constant bleacher use. This alone could be viewed in some instances as negating an allegation that a dangerous condition existed. Here, however, there is also the consideration that claimant, six feet two inches tall and weighing 230 pounds at the time, used a cane and walked with a limp because of his bad knee and bad back. Given the totality of proof in this case, the fact that claimant is the first and only one to have reported an accident in all the years since the bleachers were installed also serves to render theories other than a dangerous condition equally, if not more, plausible to account for what may have caused his fall that night.

Let judgment be entered for the defendant dismissing the claim herein.

May 12, 2008
New York, New York

Judge of the Court of Claims

[1]. These are bleachers attached to a wall that are pushed in flush with the wall when not in use, and pulled out to open when needed.

[2]. On cross-examination, defense counsel asked whether the degree of shakiness of these bleachers was the same as other wooden bleachers on which claimant had walked up and down in other gymnasiums, and he replied these were more shaky, “extremely shaky.” Then he was confronted with his deposition answer,
“Question: Based on your experience, was it [these bleachers] more or less or shaky or what?

“Answer: I don’t know.”
He also confirmed that prior to the date of the accident, he never had observed any defect in the bleachers in the area where the accident occurred, nor had he ever filed a complaint or grievance with respect to them.
[3]. Claimant’s description, written shortly after the incident, did not refer to the inmate’s having kicked the seat board, as he did at trial.
[4]. In pretrial discovery, claimant asked defendant to identify the manufacturer of the bleachers, and after defendant’s review and inspection of the bleachers, defendant replied it did not know the manufacturer’s name and identity and “there is no way to determine” the manufacturer. (Ex. 11)
[5]. Claimant challenged Mr. Bremer’s qualifications as an expert on bleachers. The court reserved decision, and now accepts his testimony, leaving questions raised by claimant pertaining to his credentials as they might bear on any of his opinions to be resolved by the weight the court ultimately accorded to aspects of his testimony, infra.
[6]. The court reserved decision on defendant’s hearsay objection to admission of the pages into evidence. Defendant argued these were excerpts only and not statements of anyone before the court. They are received here (Ex. 23) only as proof that the manual contains such language, not to prove outriggers were an essential part for these bleachers or as evidence that they were supplied by the manufacturer. See n 9, infra.

[7].At the conclusion of defendant’s case, counsel for claimant stated that he wished to call back Mr. Steward as a rebuttal witness but Mr. Steward was scheduled to begin a major bleacher installation and claimant would need a continuance of several weeks in order to do so. The court accommodated the claimant with a one-month continuance for this purpose.
[8].See n 11 infra.
[9].The court finds claimant did not prove the tier catch was missing in 2003 at the time of the accident. With the missing outrigger, claimant was able to prove that no outriggers ever were installed with these bleachers because none were present in 2007 and holes were not punched in the frame to correspond with the ones of the outriggers. Tier catches, on the other hand, were present at Mr. Bremer’s 2007 inspection, although not the one for the first row of the section where claimant fell. This does not prove the tier catch was missing when claimant fell. Nevertheless, because there was some confusion about what the 2007 photos could be used to show (per the agreement of the parties), the court also addresses the proof pertaining to the tier catch as if it were found to have been missing in 2003.
1[0]. Claimant testified that on these climbs up, down and up the bleachers were shaky, wobbly and unstable, and that on his descent to the bottom row from the rows above those other rows were “swaying and wiggling.” Although at trial he was certain that their degree of shakiness was extreme and more than with bleachers in other gyms, he was unable to make such a comparison at his deposition. He testified back then that he did not know whether the rows were more or less shaky than other bleachers.
[1]1. The installation manual excerpt pertaining to outriggers which the court has received in evidence only for what it says (Ex. 23) does not resolve the question. It states, in pertinent part, “For first tier install outrigger as required. . . .” (emphasis added) Nowhere else in the exhibit do the words “as required” appear as part of a manufacturer’s directive. It very well may be that on this model the manufacturer considers the outrigger as an optional piece to be used only where, upon installation, instability is identified. This would explain why no holes on the frame were prepunched to match the spacing of the holes on the outrigger for any of the five bleacher sections, and why the installer, according to Mr. Steward, would have been required to drill them. Without direct testimony from the manufacturer, however, this is left to conjecture.
1[2].In a portion of Mr. Steward’s rebuttal testimony not recounted supra, he also identified a bent edge of a Z-shaped piece of 16-gauge galvanized steel, called a “nosing,” at the left end of the first row, on the bleacher deck (Ex. 24). Mr. Steward did not assert that the bent nosing itself was dangerous, but rather that it was further evidence of a lack of support for the first row seat board. He asserted that the metal bracket which was bolted to the seat board, “came down and . . . it caused the front of the seat support [the bracket] to push back,” thus causing the edge of the Z-shaped nosing to bend backwards. On cross-examination, however, he acknowledged that this nosing which sits on the bleacher deck also could be bent if kicked hard. The court observes from Ex. 24 and other photographs of the bleachers in evidence (e.g. Ex. K-13) that the deck is where seated spectators rest their feet. Moreover, the court finds Mr. Steward’s theory that the metal bracket pushed back against the nosing “at some point” when there was “trauma” to the bleacher section is speculative, especially since the top of the bracket was bolted to the seat board above, and the facing of the bracket was bolted to the facial board in front of it. The proof of what actually caused the nosing to bend–and when–is well short of what is necessary for the court to draw a reasonable inference that the bent nosing is evidence of trauma to the bleachers caused by a dangerous condition.
1[3].As recounted supra, the court granted counsel for claimant a one-month continuance so he could call back Mr. Steward as a rebuttal witness to refute the testimony of Mr. Bremer. Despite this lengthy accommodation, claimant’s side did not deem it necessary for Mr. Steward to go to Franklin to inspect the bleachers personally and test his theory. Counsel was content simply to raise questions about Mr. Bremer’s account of his own inspection and test.