New York State Court of Claims

New York State Court of Claims

WHITE v. THE STATE OF NEW YORK, #2009-009-197, Claim No. 100939


The Court found that the State failed to provide claimant with reasonably safe living conditions, and was 100% liable for injuries suffered by claimant when he fell down a flight of stairs at a group home operated by OMRDD.

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:
Defendant’s attorney:
Attorney General
BY: Christopher Wiles, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
April 6, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


In this claim, claimant Joseph M. White[1] seeks 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 time.[2]

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”[3] 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 tall,[4] 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 requirements.

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 overhead obstruction.

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 engineering standards.

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 stairway.[5]

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 issued.[6]

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 unreasonably dangerous.

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.


April 6, 2009
Syracuse, New York

Judge of the Court of Claims

[1]. This claim was instituted by Terry J. Blake, the sister and Court-appointed guardian for Joseph M. White. Pursuant to a Stipulation placed on the record at the opening of this trial, Ms. Blake was named temporary guardian of Joseph M. White by Order of the Cayuga County Surrogate’s Court dated August 19, 1999, and became full guardian by an Order of the same Court on November 4, 1999. She has instituted this claim pursuant to the guardianship authority granted to her. Unless otherwise indicated, however, any references to “claimant” in this decision are to Joseph M. White.
[2]. As also noted in the Stipulations, the carpeting on the stairway may have been changed at some point in time.
[3]. Unless otherwise indicated, all references and quotations are taken from the Court’s trial notes.
[4]. Counsel for the parties also stipulated to this fact at the start of trial.
[5]. Although Mr. DiNuzzo testified, under cross-examination, that two of the stated reasons justifying the issuance of this waiver were not legitimate, this Court is not in a position to make a determination herein as to whether this waiver was properly granted.
[6]. The Court notes, however, that although waivers had been requested for the overhead obstruction on the stairway and overall width of the stairs (Exhibits 27 and 28), no such waiver was requested or granted pertaining to the steepness of the stairs or the dimensions of the stair risers and treads.