In this claim, claimant Joseph M. White
damages for personal injuries suffered by him on June 1, 1998 when he fell down
a flight of stairs at a group home operated by the Office of Mental Retardation
and Developmental Disabilities (OMRDD) on Steel Street in the City of Auburn.
Claimant alleges that the State failed in its duty to provide him with
reasonably safe living conditions at this home. Specifically, claimant contends
that the staircase on which he fell failed to provide reasonable and adequate
headroom, that the stairs were unreasonably steep, and that the stair risers and
treads were, respectively, irregular in height and depth.
At trial, counsel for the parties placed certain stipulations on the record
regarding the home and property where this accident occurred. Specifically, the
parties stipulated that an individual, Joseph Guerrera, purchased a
single-family structure, then known as 54 Steel Street, Auburn, New York, in
1971, and that Mr. Guerrera subsequently leased this property to the State of
New York on November 21, 1985, which was then used by the State as a group home
from 1986 to 1999. The property was sold to its current owner, Richard Wild,
Jr., in 2005. At some point in time, due to the installation of a 911 emergency
system in the City of Auburn, the address of this property was changed to its
current address, 64 Steel Street.
Counsel also stipulated that the stairway from the first floor to the second
floor, on which claimant fell, is the original stairway, and the stairway and
stairwell, including an overhang, have remained in the same condition and
configuration from 1971 to the present
Terry J. Blake, the sister and guardian of claimant, testified that claimant
was born on March 6, 1952, with hydrocephalus, which caused mental
retardation. Claimant lived with his parents until they were no longer able to
adequately care for him, and he entered the State system, under the care of
OMRDD, in 1986 at 34 years of age. Claimant was eventually transferred by OMRDD
to the group home facility on Steel Street in Auburn in 1992, and he remained
there until his accident on June 1, 1998.
Christopher Holmes, a Developmental Assistant employed by OMRDD, testified at
trial. Mr. Holmes testified that he has been working as a Developmental
Assistant at the group home on Steel Street since 1996, and was at work in the
early morning of June 1, 1998 when the accident occurred. At that time, there
were two developmentally disabled residents at the facility, one of whom was
claimant Joseph White. Mr. Holmes testified that at approximately 4:00 a.m., he
was awakened by some loud “thumps”
which sounded like someone falling down the stairs. Immediately after this
“thumping” noise stopped, Mr. Holmes heard claimant calling his
name, and he found claimant at the bottom of the stairs, lying on his back.
Claimant was conscious, and he told Mr. Holmes that he had fallen down the
stairs. Mr. Holmes asked claimant if he was okay, and claimant replied
“not”. Mr. Holmes immediately called 911 and claimant was
transported by ambulance to Auburn Memorial Hospital.
Pursuant to another of the Stipulations entered on the record at trial, the
parties agreed that the medical records established that after his fall down the
stairs, claimant was found to have abrasions on his back and an
abrasion/laceration above his right eye.
Mr. Holmes testified that the stairway leading from the first to the second
floor was narrow, and that there was a “head obstruction”
approximately halfway down the stairs, which required people to duck their heads
as they proceeded down the stairs. He testified that this obstruction was
approximately five steps down from the top of the stairs, and that he himself
frequently hit his head on the obstruction during the time that he was assigned
to this group home. He further testified that the obstruction was padded.
Additionally, Mr. Holmes testified that the stairs, which were constructed of
wood, were irregular in both depth and height. He testified that these
irregularities created problems for individuals ascending and descending the
stairway. He testified that due to these irregularities, he, himself, has
slipped down the stairs approximately twice a month since being assigned to the
home, and that he observed a co-employee also tripping and having a similar
problem with the stairs. Mr. Holmes testified that because of these problems,
he had reported this condition to visitors and other workers at the house, and
advised them to be careful in proceeding up and down the stairs. He also
testified that he reported this specific condition to his supervisor, Marki
Cool, the Director of the group home on Steel Street, and to her supervisor,
Patty Wood, as well as to one of the State “surveyors” who conducted
an examination of the house.
Eugene R. Camerota, a professional engineer, was qualified by the Court to
testify as an engineer and accident reconstructionist, and he testified on
behalf of the claimant. Mr. Camerota testified that he took measurements on the
stairway to determine the available headroom from different steps. He
identified the step at the top landing as No. 1, and the bottom step as No. 13.
He calculated that the available headroom from the seventh step to the overhead
obstruction was 4 feet 10 inches, and that the available headroom from the
eighth step to the overhead obstruction was 5 feet 6½ inches. Since
claimant, Joseph White, is 5 feet 7 inches
Mr. Camerota concluded that it was
necessary for claimant to duck under the head obstruction while proceeding up or
down the stairs, and in particular when descending from the seventh step to the
eighth step, and then from the eighth step to the ninth step.
In addition to his calculations, Mr. Camerota testified that when he was
on-site for the purpose of examining the premises, it was necessary for him to
duck his head every time he went up or down the stairway. Mr. Camerota
testified that he is 5 feet 9½ inches tall.
Mr. Camerota testified that the New York State Building Code, § 713.1,
requires a minimum headroom of 6 feet 6 inches on stairs, and that the stairs in
the group home were therefore in violation of this provision. Mr. Camerota
further testified that this provision of the Building Code was in effect when it
was converted from a private residence to a group home.
In addition to the requirements of the New York State Building Code, Mr.
Camerota testified that “good and accepted engineering and design
standards” require that the minimum headroom on stairs be at least seven
feet, and that the available headroom on the stairway at this group home
obviously violated such standards.
Mr. Camerota also testified with regard to the steepness of these stairs. He
determined that the stairways were between 42 and 42½ degrees in steepness,
but that good and accepted engineering standards require that stairs should not
exceed 30 to 35 degrees.
Mr. Camerota also provided testimony with regard to the width of the treads and
the height of the risers of these stairs. Mr. Camerota testified that pursuant
to the New York State Building Code, § 713.1, stair treads must have a
minimal width of 10⅛ inches, with no more than ⅛ of an inch in
variation of width from right to left. He further testified that under this
building code section, the maximum permissible height of risers is 8¼
inches. He testified that this building code section also requires that stairs
not be less than 2 feet 8 inches in width.
Based on his measurements of the stairs, Mr. Camerota testified that the stair
treads had up to an inch in variation of width (compared to the permissible
⅛ of an inch of variation in the building code), that the height of the
risers on the stairs were all 9 inches or greater (in excess of the maximum
permissible height of 8¼ inches pursuant to the building code), and
that the stairs were 2 feet 2½ inches in width (compared to the building
code requirement of a minimum of 2 feet 8 inches in width). As a result,
Mr. Camerota concluded and testified that the stairs at this group home
were in violation of the New York State Building Code, § 713.1 in that they
were too narrow in width, the risers were excessively high, making the stairs
too steep, and there was excessive variation in the width of the stair treads.
Mr. Camerota concluded that the violations of the New York State Building Code
with regard to minimum headroom, width of stairs, variation in width of the
stair treads, and the height of the stair risers, were all a proximate cause of
claimant’s fall and resulting injuries. Mr. Camerota also concluded that
the minimum headroom on the stairs and the steepness of the stairs violated good
and accepted engineering and design standards, creating a dangerous condition
that was a proximate cause of claimant’s fall and resulting injuries.
Mr. Camerota conceded, however, that the building (and the stairway) was
constructed prior to the effective date of the present building code, and
therefore was subject to “grandfather” provisions of the code which
do not require modification or renovation to comply with the current, stricter,
provisions of the code.
Mr. Camerota also testified as to his reconstruction of the accident in which
claimant fell. In this reconstruction, Mr. Camerota took into consideration the
injuries suffered by claimant (the injury above claimant’s right eye and
the abrasions on his back), the overhead obstruction on the stairway, the
testimony from Mr. Holmes that he heard a “thumping” sound, and the
position of claimant when he was found at the bottom of the stairs. Based on
these considerations, Mr. Camerota concluded that as claimant was proceeding
down the stairs, he struck his head on the overhead obstruction, causing him to
fall backward and slide down the remaining stairs on his back. This
reconstruction of the incident, Mr. Camerota testified, is the only
interpretation which takes into account the injuries suffered by claimant above
his right eye.
Anthony DiNuzzo, a Deputy Director for Quality Services with OMRDD, testified
on behalf of the defendant. Mr. DiNuzzo described the process by which group
homes, including the home on Steel Street, are selected with the goal of placing
patients in both the geographic location and type of housing that best
accommodates the individual needs of the residents.
Mr. DiNuzzo testified that prior to the opening of this group home, a
Certificate of Occupancy had been issued by the City of Auburn for this
property. Mr. DiNuzzo added that these premises have also been subjected to
ongoing inspections since that time. Mr. DiNuzzo further testified that he had
checked incident reports and found none of any prior accidents under similar
circumstances involving any of the residents at the Steel Street home.
Deborah J. Burkhardt, a Standards Compliance Analyst with OMRDD, also testified
at the trial. Ms. Burkhardt testified that in addition to obtaining a
Certificate of Occupancy from the local municipality, a group home must also
obtain an Operating Certificate from the Bureau of Program Certification at
OMRDD before it can open. She explained that pursuant to Part 686 of the Rules
and Regulations for the Office of Mental Retardation (Exhibit C), additional
requirements were imposed on the Steel Street property, over and above the
requirements set forth by the City of Auburn in its Certificate of Occupancy
(Exhibit D). These additional requirements had to be satisfied prior to
issuance of the Operating Certificate. She also explained that the Commissioner
of OMRDD, under certain circumstances, may issue waivers for these stricter
Documentary evidence established that with regard to the Steel Street property,
a waiver had been obtained from the OMRDD Bureau of Program Certification during
the certification process. This waiver addressed the minimum head clearance on
the stairway. Pursuant to a “Supplemental Trial Stipulation”
entered into by counsel for the parties, however, no application had been made
to obtain a waiver of the State Building Code Requirements applicable to the
steepness of the stairs or the dimensions of the stair risers or treads.
The State has a duty to exercise reasonable care to protect patients and
residents at its facilities and prevent them from being harmed (Mulberg v
State of New York, 35 AD2d 856, affd 29 NY2d 916; Harris v State
of New York, 117 AD2d 298). This duty of reasonable care is “measured
by the capacity of the patient [or resident] to provide for his or her own
safety” (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 252).
As in any negligence action, therefore, a claimant must prove the existence of
a duty to the claimant; a breach of that duty by the defendant which proximately
caused claimant’s injuries; and the nature and extent of the injuries or
damages sought to be compensated (Basso v Miller, 40 NY2d 233).
Negligence, however, cannot be inferred from the mere occurrence of an accident
(Mochen v State of New York, 57 AD2d 719), and the fact that an accident
occurred does not, by itself, establish negligence on the part of the defendant
(Tomassi v Town of Union, 46 NY2d 91).
In this case, there were no eyewitnesses to claimant’s fall down the
stairs, and therefore no witnesses as to the specific cause of his fall. Based
on the testimony and evidence from the trial, however, there can be no question
that claimant fell down the stairs during the night. Furthermore, based upon
the reconstruction of the accident provided by claimant’s expert witness,
Mr. Camerota, the Court further finds that claimant, as he was descending the
stairs, struck his head on the overhead obstruction, knocking him backward and
causing him to lose his balance, and that he then slid down the rest of the
stairs on his back (causing the “thumping” sounds heard by Mr.
Holmes). The Court agrees with Mr. Camerota that the abrasion above
claimant’s right eye is consistent with him striking his head on the
Claimant contends that the staircase failed to comply with certain provisions
of the New York State Building Code, and also did not conform to acceptable
With respect to the building code violations, however, there is no dispute to
the fact that the Steel Street residence was constructed prior to the effective
date of the building code provisions relied upon by claimant. Although claimant
has established that the staircase in question did not conform with the
requirements of the building code in existence at the time of the accident, he
has provided no evidence to establish that an upgrade to comply with the code
was required prior to the issuance of a Certificate of Occupancy by the City of
Auburn. As a result, the Court finds and concludes that since the Steel Street
residence predated the provisions of the building code alleged by claimant to
have been violated, claimant’s cause of action based upon these violations
must fail. As brought out in the testimony, there were additional and stricter
requirements imposed on the Steel Street property prior to issuance of the
Operating Certificate by OMRDD. Defendant has established that a waiver had
been requested, and received, for the overhead obstruction on the
Even though this waiver as to minimum acceptable headroom had been obtained,
however, the State nevertheless had a continuing duty to maintain these premises
in a reasonably safe condition. In this case, evidence has established, through
the testimony of Christopher Holmes, that the State had actual prior notice of
the dangerous condition of the stairway. Mr. Holmes, who was employed at the
home at the time of this accident, testified that not only had he repeatedly
struck his head on the overhead obstruction prior to claimant’s fall, but
that he had also warned visitors to the residence and other employees as to the
condition of the stairway, and that he had advised his superiors of this
condition as well. Despite these expressed concerns, and the obvious nature of
this condition, there is no evidence that the State took any corrective measures
to provide reasonable protection to residents (as well as visitors and
employees) of this facility. Instead, the State apparently relied solely on the
fact that a waiver had been obtained when the Operating Certificate had been
Mr. Camerota, claimant’s expert, provided testimony that this stairway
violated good and accepted engineering standards and principles, and that these
violations were a proximate cause of claimant’s fall and resulting
injuries. Specifically, Mr. Camerota offered testimony that the overhead
obstruction, the steepness of the stairs, and the variation in the width of the
stair treads and height of the risers all violated standards of good and
accepted engineering design and construction. Mr. Camerota concluded that the
stairway, despite the issuance of the Operating Certificate, was unsafe and
After a consideration of this testimony, and a review of the photographs
admitted into evidence depicting the stairway (Exhibits 7, 9, 10 and 15), the
Court finds and concludes that this stairway was still unsafe, notwithstanding
the issuance of a Certificate of Occupancy and Operating Certificate. Both the
photographic evidence and testimony establish that a person of average height
was required to duck every time he or she walked up or down the stairway. This
lack of headroom, in combination with a steep, narrow, and uneven stairway,
created a dangerous condition, rendering an accident of the type and nature
involved in this case reasonably foreseeable.
Based on the foregoing, therefore, the Court finds that the State had a duty to
claimant to provide him with a reasonably safe facility, and that it violated
this duty by maintaining the stairway in a dangerous and unsafe condition.
Furthermore, the Court finds that the breach of this duty was a proximate cause
of the injuries suffered by claimant, and that the State had prior actual notice
of the dangerous condition. Based on the foregoing, therefore, the State must
respond in damages.
The Court must therefore consider the issue of claimant’s comparative
negligence, if any. In this case, there is no dispute that claimant was
mentally retarded, as he had been under the care of OMRDD for virtually his
entire adult life. However, a person suffering from a mental deficiency may
still be charged with comparative negligence if he or she has the mental
capacity to appreciate and avoid the danger of injury (1 NYPJI 3d 2:46).
In this case, claimant was unable to provide any meaningful testimony at trial.
However, testimony did establish that prior to this accident, claimant did not
have any physical limitations, and that he was able to move about freely
throughout the group home on Steel Street. As a result, claimant would have
ascended and descended this stairway several times daily over the approximately
six years that he had resided at the home prior to the accident. Despite his
physical ability to traverse these stairs on a daily basis, however, there was
no evidence to establish that claimant had the mental capacity to appreciate the
danger created by the lack of headroom, and without such evidence, claimant
cannot be charged with any comparative negligence.
The Clerk of the Court is therefore directed to enter an interlocutory judgment
on the issue of liability in accordance with this decision. The Court will set
this matter down for trial on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY