New York State Court of Claims

New York State Court of Claims

SUFFOLK COUNTY v. THE STATE OF NEW YORK, #2008-041-506, Claim No. 111441


Synopsis

Claim seeking recovery for cost of repairs to helicopter for damages sustained when an object struck the helicopter as it landed at defendant’s heliport is dismissed where claimant failed to prove that defendant created, or had actual or constructive notice of, a dangerous condition on its premises.

Case Information

UID:
2008-041-506
Claimant(s):
COUNTY OF SUFFOLK
Claimant short name:
SUFFOLK COUNTY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111441
Motion number(s):

Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
MARCIA LYNN, ESQ.Suffolk County Attorney
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: John L. Belford, IV, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 14, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Suffolk County (claimant) has, for a number of years, transported individuals in need of emergency medical care to Stony Brook University Hospital (Stony Brook) by means of helicopter. The landing area for helicopters at Stony Brook, commonly referred to as a helipad, is immediately adjacent to the Emergency Room entrance and is also immediately adjacent to roadways and parking lots which serve the hospital.



On July 3, 2004, in mid-afternoon, claimant was in the process of delivering an individual to Stony Brook by helicopter, tail #N3PD. Flying from east to west over the doctor and emergency room parking lots on final descent, the helicopter was struck by a flying object as it was landing, between 25 and 50 feet from the helipad. The helicopter landed successfully. Upon landing and after inspection, it was determined that the helicopter had been damaged by the flying object, that one of the helicopter’s rotor blades had abrasions and that another rotor blade was missing a piece, approximately 6 inches by 1½ inches in dimension, rendering the helicopter inoperable. Claimant brings this action against defendant State of New York for the damage which occurred to the helicopter.

Several witnesses observed the object which struck the helicopter, both while in the air as the helicopter was landing and on the ground after the helicopter had landed. Both the pilot in charge and the co-pilot of the helicopter saw the object for the first time in the air, flying within the “wash” (the Court’s terminology) created by the rotor blades of the helicopter, as it hovered between 25 and 50 feet from the helipad. It was described as gray or silver in color. A Stony Brook paramedic, John O’Neill, standing on the ground awaiting the helicopter’s arrival, first observed the object “above” the helicopter as the helicopter crossed the doctor parking lot about 75 yards from the helipad, watched the object “follow” the helicopter for 20-30 yards, become sucked down into the rotor blade wash and strike the helicopter. Upon impact, several witnesses described hearing a “bang” and a change in the pitch of the sound made by the whirling rotor blades.

The object was retrieved after the helicopter landed. It was alternately described by different witnesses as being of lightweight material, shredded, foldable, with a metal wire embedded within the material’s edge to give it shape or form. All of the witnesses who closely viewed the object described it to be what is commonly known as a car “sunscreen.” Such sunscreens are frequently placed in the front window or on the front dashboard of a car to reflect the sun’s heat outward, to prevent the interior of a car from becoming superheated and to protect the car’s interior from the damaging effects of prolonged and direct sunlight.

When a medical emergency is being delivered to Stony Brook via helicopter, certain procedures or protocols are followed. An on-board paramedic will initially notify the hospital of the flight, describe the medical condition involved and provide an estimated time of arrival. When so notified, between three to five security officers and two patrol cars embark to limit vehicular and pedestrian traffic in the area around the Stony Brook emergency room entrance. Foot officers walk the adjacent emergency room and doctor parking lots to seek people in cars and to get them out of their cars prior to the helicopter’s arrival, and further, prevent pedestrians from entering or exiting the emergency room entrance. Communication between the hospital and the helicopter pilot, to advise of final approach and to confirm that the emergency room area has been secured and cleared of vehicle and pedestrian traffic, takes place within one to two minutes of landing.

Eric Niegelberg is the Stony Brook EMS director and emergency department administrator and the individual “responsible for developing the policies and procedures regarding the use of the helipad” for 15 years, during which hundreds of helicopter landings have occurred annually. When asked about the time which would “normally” elapse between the initial notification to Stony Brook of the helicopter flight and the final approach confirmation, Niegelberg testified that there was “not a normal”, and that the time period ranged “from 60 seconds to half an hour.” During this range of time, the security protocols described above are commenced and employed. None of the described security protocols involve policing the grounds adjacent to the helipad for loose debris, although Mr. Niegelberg testified that the helipad itself was inspected daily for debris.

Joseph Kelly, the Stony Brook supervisor of grounds for 24 years and the individual responsible for all exterior grounds maintenance at Stony Brook, described the daily protocols for grounds maintenance, and specifically for those areas immediately adjacent to the helipad. Each workday, Mr. Kelly and his crew of four, beginning at 7:00 a.m., would change garbage liners and gather loose debris from all of the Stony Brook parking lots, including the emergency room and doctor parking lots immediately adjacent to the helipad. Mr. Kelly and his work crew devoted forty-five minutes of daily grounds maintenance to the emergency room and doctor parking lots. Additionally, as needed or when asked, Mr. Kelly or his crew would respond and attend to emergency room parking lot maintenance during the course of a given day.

None of the seven witnesses who gave relevant testimony had ever observed any problem with flying debris at the Stony Brook helipad, none of them had ever seen debris strike a helicopter and there were no known or reported instances of helicopters being damaged as a result of being struck by flying debris at Stony Brook. This, despite hearing from several witnesses, two of whom each had 24 years of relevant experience at Stony Brook, two of whom had landed helicopters at Stony Brook hundreds of times, and, in Mr. Niegelberg’s case, the one individual responsible for the policies and procedures concerning helicopter landings at Stony Brook during a period of time in which thousands of such landings had taken place. In the collective experience of all of these witnesses, involving decades of experience and thousands of helicopter landings, not a single similar incident had occurred.

The law of premises liability in New York is straightforward and well established.

"Having waived its sovereign immunity the State is subject to the same rules of liability as apply to private citizens" (Preston v State of New York, 59 NY2d 997, 998 [1983]). "It is beyond dispute that landowners and business proprietors have a duty to maintain their properties in reasonably safe condition" (Di Ponzio v Riordan, 89 NY2d 578, 582 [1997]; Lasky v Daly, 2008 NY Slip Op 02967 [2d Dept 2008]). However, "[w]hile the State clearly owes a duty to claimants and others entering upon its property to maintain it in a reasonably safe condition under the circumstances, it is not obligated to insure against every injury which may occur" (Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]).

Defendant's liability for a defective or dangerous property condition is dependent upon proof that it either created the alleged dangerous condition or knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period (Sloane v Costco Wholesale Corp., 49 AD3d 522 [2d Dept 2008]).

Where there is insufficient proof that the defendant created or had actual notice of the condition, liability turns on the issue of whether defendant had constructive notice. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Moons v Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]).

Claimant offered no proof that the defendant created a dangerous condition, whether by negligent design or otherwise.

Therefore, in order to find defendant liable it is necessary, at a minimum, to determine the defendant had actual or constructive notice of the condition which caused damage to the helicopter. There was no testimony, nor was there any proof, that defendant knew of the sunscreen’s existence or location or the length of time it was in the relevant vicinity at Stony Brook. No witness saw the sunscreen before it was in the air. Indeed, although speculating that the sunscreen came from an open convertible or perhaps from the back of an open air flatbed truck in the nearby parking areas (and this was speculation of counsel only, during argument), claimant gave no proof whatsoever of the initial location of the sunscreen, for how long it was at any given location, where it came from or how it came to be seen and located for the first time within the helicopter’s wash, approximately seventy-five yards from the helipad. This, alone, is an evidentiary defect which precludes recovery.

“A prima facie case of negligence must be based on something more than conjecture; ‘mere speculation regarding causation is inadequate to sustain the cause of action’ (Segretti v Shorenstein Co., E., 256 AD2d 234, 235 [1998]). Conclusory allegations unsupported by evidence are insufficient to establish the requisite notice for imposition of liability” (Mandel v 370 Lexington Ave., LLC, 32 AD3d 302, 303 [1st Dept 2006]).

The Court declines to speculate on how, when and why the car sunscreen came to be in the vicinity of helicopter #N3PD as it descended to the Stony Brook helipad on July 3, 2004.

Moreover, the defendant detailed a comprehensive and regularly employed set of protocols. First, a security protocol to ensure the safe arrival of medical emergencies via helicopter was set forth. Second, an inspection and cleaning protocol, employed on a daily workday basis, was described both for the helipad itself and for the surrounding parking lots as well.

To accept claimant’s position regarding defendant’s liability would require the helipad and its immediately adjacent grounds, including but not necessarily limited to at least two fairly large parking lots, to be visually inspected and policed for any freestanding or untethered items and/or loose debris (in addition to employment of the other previously described security protocols) in the time period between the initial notification of an arriving helicopter and its actual arrival, an interval which could be as limited as two or three minutes. Such an expectation is neither reasonable nor legally required.

Finally, to accept claimant’s theory of recovery would require the Court to conclude that notice of a condition which results in damage, no matter how infrequent, unlikely or accidental the happenstance, must be imputed to the involved property owner. Such a theory suggests that the simple, and perhaps single, happening of an incident which results in damage, necessarily implies foreseeability or notice of a condition which leads to, however rare, the actual outcome endured. Such is not the law in New York.

For all of the foregoing reasons, the claim is dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.


May 14, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims