New York State Court of Claims

New York State Court of Claims

DUNPHY v. STATE OF NEW YORK, #2009-039-120, Claim No. 111867


Synopsis


Following a trial on liability, Court concludes that claimant failed to prove, by a preponderance of the credible evidence, her claim against defendant for damages related to injuries she sustained when she slipped and fell in the corridor of Stony Brook University Hospital. Claimant did not offer sufficient proof to establish the etiology of the substance found on her shoe shortly after the fall, claimant’s expert based his opinion upon the presence of polymer dust without any proof before the Court that such dust was present on the occasion in question, and claimant’s description of the substance on her shoe as “a blob of like gum” and “soft” was inconsistent with the appearance of acrylic polymer dust as described by claimant’s expert and the hospital’s Director of Custodial Services.

Case Information

UID:
2009-039-120
Claimant(s):
LORRAINE DUNPHY
Claimant short name:
DUNPHY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111867
Motion number(s):

Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Cartier, Bernstein, Auerbach and Dazzo, P.C.By: Kenneth A. Auerbach
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: John L. BelfordAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 27, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant commenced this matter following injuries she allegedly sustained when she slipped and fell in the corridor of Stony Brook University Hospital (hereinafter Stony Brook Hospital). A trial on the issue of liability was conducted, and claimant offered proof in support of her position that she fell as a result of defendant’s negligent application of wax on the corridor floor. Claimant posited that defendant failed to have proper procedures in place for the inspection of its floors after they were burnished resulting in the accumulation of excess dust and wax which was the proximate cause of her fall. The Court has considered the following proof adduced at trial in arriving at its decision.[1]

On July 4, 2005, claimant was walking down a corridor at Stony Brook Hospital when, “[o]ut of nowhere, [she] started to slip” backwards, ultimately landing sideways on the floor. She was carrying a cup of coffee in her right hand, a pocketbook over her left shoulder, and she was wearing a “summer shoe[], like a sandal.” Prior to her fall, claimant did not observe any warning signs in the hospital corridor, or any substance on the floor. After the fall, claimant did not notice any waxy substance on the surrounding floor, or whether the surrounding area was wet or slippery.[2] Nor did she notice any substance on her clothes or on any part of her body. Claimant was subsequently transported to the emergency room where she observed, for the first time, what she described as “a big blob of wax” on the heel of her right shoe.

Thereafter, claimant retained the services of Long Island Analytical Laboratories (hereinafter “LIAL”), an environmental testing laboratory, for the purpose of conducting a chemical analysis of the substance that was discovered on the heel of her right shoe. Following extensive testimony regarding the procedures and methods utilized by LIAL to test the substance, Michael Veraldi, an analytical chemist and the owner, president and laboratory director of LIAL, stated that he was 95% certain that the chemical compounds found within the substance taken from claimant’s shoe included acrylic polymers, diethylene glycol ethyl ether and dipropylene glycol methyl ether, which are chemical compounds that “are commonly used in the wax industry” and “are consistent with a wax material or paraffin.” Veraldi further provided that these chemical compounds were compared with material safety data sheets for Johnson Wax, which revealed that they are consistent with the chemical compounds found in Johnson Floor Wax.

“As a landowner, the State has a duty to use reasonable care under the circumstances in maintaining its property in a safe condition” (Colangione v State of New York, 187 AD2d 844, 845 [1992]; see also Basso v Miller, 40 NY2d 233, 241 [1976]). The State is not, however, “an insurer against any injury which might occur on its property” (Bowers v State of New York, 241 AD2d 760 [1997]). “The imposition of liability in a slip-and-fall case requires evidence that the defendant created the dangerous condition which caused the accident, or had actual or constructive notice of that condition” (Borenkoff v Old Navy, 37 AD3d 749, 750 [2007]; see also Medina v Sears, Roebuck and Co., 41 AD3d 798, 799 [2007]). Moreover, in order to prevail on a claim for negligence, “plaintiff must demonstrate not only that the floor on which he or she slipped was ‘shiny’ or that it had been waxed, but also that the wax or polish had been negligently applied” (Gootman v Village of Haverstraw, 200 AD2d 829 [1994], lv denied 83 NY2d 756 [1994]). “ ‘A prima facie case of the negligent application of wax may be established by evidence that a dangerous residue of wax was present on the floor’ ” (Gracchi v Italiano, 290 AD2d 484, 485 [2002], quoting Galler v Prudential Ins. Co. of Amer., 63 NY2d 637, 638 [1984]).

The Court has considered the credible evidence presented at trial and concludes that defendant cannot be held liable to claimant for the injuries she sustained on July 4, 2005 because claimant did not establish, by a preponderance of the credible evidence, that defendant was negligent in its application of floor wax.

Although the Court finds credible the testimony of claimant that she first discovered the “big blob of wax” on the heel of her right shoe shortly after the fall, as well as the testimony of Veraldi that the substance on claimant’s shoe contained chemical compounds consistent with floor wax, the Court is not satisfied that such proof is sufficient to establish the etiology of the substance (see Segretti v Shorenstein Co. E., 256 AD2d 234, 235 [1998]). There was no proof offered to establish that anyone observed an accumulation of wax or a ridge of wax, or any other substance in the area where claimant fell, or on her clothes (see Ullman v Cohn, 248 AD2d 200 [1998]; Garrison v Lockheed Aircraft Serv.- N.Y., 24 AD2d 998 [1965]). Christian John Bachmore, Stony Brook’s Housekeeping Supervisor, was on duty when claimant fell, and testified that he never received any notice that day that a slippery condition existed in the area where claimant fell. Thus, the Court can only speculate as to the origin of the waxy substance on claimant’s shoe.

Nor is the Court persuaded by the opinion of Norman Blam, claimant’s building maintenance expert, with respect to causation because his opinion is not “based on facts in the record or personally known to [him]” (Quinn v Artcraft Constr., 203 AD2d 444, 445 [1994]). It is well settled that “[a]n expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion” (id.).

Here, Blam opined that the accumulation of acrylic polymer dust on claimant’s shoes and on the floor created an “ice rink” that caused claimant to slip and fall. Blam testified that he “secured [his] opinion . . . that dust was not taken off the floor” from his knowledge that dust is created when floors are burnished, from information taken from Housekeeping Supervisor Bachmore’s deposition testimony that the hospital burnished its floors, and from “the chemical company indicat[ing] acrylic polymer” in its analysis of the substance found on claimant’s shoe. The combination of these factors, however, does not establish that acrylic polymer dust was present on the occasion of claimant’s fall, nor was there any other proof offered to establish the presence of dust on the occasion in question. In contrast, defendant’s chemical analyst, Dr. Mark Jordi, testified that the substance on the bottom of claimant’s shoe was “[p]rimarily a polysaccharide” and that his lab “did not detect any acrylic polymer.” Blam conceded that his opinion regarding the presence of acrylic polymer dust would change if it turned out that there was no acrylic polymer in the substance on the bottom of claimant’s shoe.

There were significant anomalies in connection with Blam’s testimony as well. For instance, Blam testified that a touch test can be conducted to determine the presence of acrylic polymer dust because it will appear white on your fingers. Yet no proof was offered to establish the presence of any dust on claimant’s clothing or body after the fall. Moreover, although Blam testified during direct examination that acrylic polymer dust can form a composite consistent with the composite that was found on the bottom of claimant’s shoe, claimant did not offer any proof to establish that Blam had ever observed the substance on claimant’s shoe up to the point of providing this testimony, only that he became aware of a composite on the bottom of claimant’s shoe. Thus, when asked during cross-examination to inspect the remaining substance on claimant’s shoe and provide an opinion, Blam denied that the substance was consistent with acrylic polymer dust. He further testified that acrylic dust would not take a gummy or soft form, but rather would appear as “microscopic slivers of almost clear acrylic.” His testimony in this regard was corroborated by Clifford Roggemann, Stony Brook’s Director of Custodial Services at the time of claimant’s fall and defendant’s expert in the field of hospital and custodial maintenance, who described the dust that appears following burnishing as a “very small,” “opaque [crystal] that you can almost see through.” When the Court considers claimant’s description of the substance that she discovered on her shoe - “a blob of like gum” and “soft” - juxtaposed with the foregoing descriptions of acrylic polymer dust provided by Blam and Roggemann, the Court is unable to discern, based upon a preponderance of the credible evidence, whether the allegedly slippery condition of the floor where claimant fell was due to an accumulation of wax or an accumulation of acrylic polymer dust.

Finally, although Housekeeping Supervisor Bachmore testified that defendant scrubbed and burnished the hospital’s hallways every night during the overnight shift in 2005, he also testified that inspections of the floors, which included visual inspections and sometimes a touch test, were conducted after burnishing to make sure there were no blemishes or dust. Director Roggemann also described the hospital’s inspection method following the burnishing of its floors which included a visual inspection for any “residual left on the floor.” He testified that a touch test for dust is not necessary to conform to industry standards for inspections, since dust can be seen with a visual inspection, and that the dust mopping that is performed by Stony Brook Hospital before and after the floors are burnished prevents a hazardous accumulation of residual dust.

Therefore, based on the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, her claim against defendant. Accordingly, the claim is hereby dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.

The Clerk of the Court is directed to enter judgment accordingly.


May 27, 2009
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims




[1]. The parties stipulated to the admissibility of all exhibits and to the qualifications of their respective experts.
[2]. Claimant testified that a woman wearing a nurse’s outfit came near her after she had fallen and while she lay on the floor. Claimant was subsequently permitted to testify, over defendant’s objection, that the unidentified woman stated that “they’re always waxing the floors and they don’t put the signs up. And, they’re, they’re waxing all the time.” Upon reconsideration of its ruling, the Court concludes that defendant’s objection to this portion of claimant’s testimony should have been sustained as claimant “failed to establish that the unidentified employee was authorized to make the alleged statement; thus, the statement did not constitute an admission binding on the employer” (Tyrrell v Wal-Mart Stores, Inc., 97 NY2d 650, 652 [2001]; see also Laguesse v Storytown U.S.A., Inc., 296 AD2d 798, 800 [2002]; Malossi v State of New York, 255 AD2d 807 [1998]). Accordingly, this portion of claimant’s testimony is hereby stricken from the record.