New York State Court of Claims

New York State Court of Claims

PAGE v. STATE OF NEW YORK, STATE UNIVERSITY OF NEW YORK AT POTSDAM, #2009-042-506, Claim No. 113814, Motion No. M-76029


Synopsis


This matter is brought before the court on motion by defendants seeking summary judgment dismissing the claim. This is an action wherein the claimant was injured in a fall on a “portable temporary ramp” at the SUNY Potsdam campus while employed with a corporation providing dining and food services to the campus. Claimant alleges that the “portable temporary ramp” was owned by the defendants and violated applicable building codes. The court has found that the “portable temporary ramp” was not a part of the “premises” that defendants were responsible for and the facts offered in support of this motion establishes that defendants exercised no ownership or control over the portable ramp. Defendants’ motion for summary judgment is granted and the claim is dismissed.

Case Information

UID:
2009-042-506
Claimant(s):
BARBARA A. PAGE
Claimant short name:
PAGE
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK, STATE UNIVERSITY OF NEW YORK AT POTSDAM
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113814
Motion number(s):
M-76029
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
LONGSTREET & BERRY, LLPBy: MICHAEL LONGSTREET, ESQ.
Defendant’s attorney:
SLIWA & LANEBy: RICHARD S. POVEROMO, ESQ.
Third-party defendant’s attorney:

Signature date:
June 3, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court has considered the following papers on defendants’ motion for summary judgment dismissing the claim:

1. Notice of Motion, filed December 22, 2008
2. Affidavit of Richard S. Poveromo, Esq., sworn to December 19, 2008
3. Exhibits A - S, annexed to the moving papers
4. Affidavit of George Arnold, sworn to November 6, 2006
5. Affidavit of Barbara Page, sworn to January 14, 2009
6. Exhibits A - B, annexed to Page affidavit
7. Affidavit of Hugh Hallenbeck, sworn to January 9, 2009
8. Exhibits C - E, annexed to Hallenbeck affidavit
9. Affirmation of Michael Longstreet, Esq., dated January 9, 2009
10. Exhibits G - J, annexed to Longstreet affirmation
11. Reply affidavit of Richard S. Poveromo, Esq., sworn to February 5, 2009
12. Exhibit 1, annexed to Poveromo affirmation
13. Affidavit of William Fisher, sworn to January 30, 2009
14. Exhibits 1 - 4, annexed to Fisher affidavit
15. Affirmation of Michael Longstreet, dated March 11, 2009
16. Exhibits A - B, annexed to Longstreet affirmation
17. Second reply affidavit of Richard S. Poveromo, Esq., sworn to March 26, 2009
18. Exhibit 1, annexed to Poveromo affidavit



This matter comes before the court on a motion by defendants State of New York and State University of New York seeking summary judgment dismissing the claim. While there are certain factual points upon which the parties differ, the majority of essential facts are undisputed.

According to the claim, claimant Barbara Page was injured in a fall on the SUNY Potsdam campus on October 6, 2005. At the time, claimant was employed by PACES, a corporation providing dining and food services to the campus. The claim asserts that Page’s injuries occurred as she was walking down a ramp located at the rear of Bowman Hall. It is alleged that claimant’s toe caught at the top of the ramp, causing her to fall and slide down the ramp. Claimant alleges that defendants were negligent in that they failed to provide a safe means of access and egress to the rear of Bowman Hall, failed to maintain the property in a reasonably safe condition, and “failed to correct the hazardous condition they created by having a slippery, narrow ramp, with no railings serve as the only means of pedestrian access and egress to Bowman Hall.”

By a written agreement dated February 15, 2005 between the defendant State University of New York and the Potsdam Auxiliary & College Educational Services, Inc. (hereinafter referred to as “PACES”), PACES operated certain facilities on campus and managed a number of buildings, including Bowman Hall, the site of the incident in issue. The agreement provided that PACES pay rent for the facilities and maintain the facilities, but that the defendant was responsible to “keep such specified premises in good repair and make all necessary capital improvements in order to comply with” applicable health and safety codes.

Prior to the time of her accident, claimant had been employed by PACES for approximately 30 years and had been the manager of the Bowman Hall facility for six or seven years. While there were multiple entry/exits to Bowman Hall, the employees of PACES generally used the exit located in the area of the loading dock. There were steps from the loading dock to the ground level and PACES acquired a portable ramp to place over the steps when needed. Its intended use was described by Daniel J. Hayes, the Executive Director of PACES, in his deposition:
there were occasions when our delivery trucks were in the loading dock but there were times when other deliveries were made by smaller trucks that didn’t – they didn’t fit to the level of the loading dock. So they off loaded their product into the parking lot and then had to lift their product to the loading dock or come up the stairs. And not only some of our vendors, but also our employees also had to carry the product in and out felt that on those occasions when the net product was delivered or moved it would be beneficial to have a portable ramp (emphasis added).
(Defendants’ motion exhibit “H” at page 30).


The testimony of PACES officials, including its executive director, was that the ramp was owned by PACES and its use was controlled by PACES. Furthermore, the ramp was portable and “it was installed in such a way that it would be moved when it was not in use” (Defendants’ motion exhibit “H” at page 33). Most importantly, claimant’s employer’s policy was that the ramp was to be stowed when not in use and it was the responsibility of the manager of Bowman Hall (claimant) to ensure that this policy was followed on a daily basis.

The ramp, which weighed approximately twenty-five pounds, was portable and by use of a hook and eye, with the hook attached to the adjacent wall, was also able to be lifted and “stowed” flush to the building’s wall, enabling use of the steps without the need of carrying the ramp away from the immediate area of the steps.

The ramp’s use, general dimensions, and structure were discussed by claimant and numerous employees of the defendants and PACES. There is no dispute in this regard. The ramp extended from the ground, over the steps and onto the top of the loading dock. Because it was straight, when the ramp was set over the steps, its top “lip” was not flush with the floor of the dock, but extended over the edge of the loading dock. Both claimant’s deposition testimony and affidavit state that she tripped on this lip.

According to claimant, while she was at work, and about four hours prior to her fall, she had been notified that her son had been a victim in a bombing incident in Iraq, but she had continued working at her job until her departure later in the day. She had also been informed this same day that her employer was putting her on leave because of problems she had in her relations with other employees. As claimant departed and approached the ramp, she said that she was holding a notebook, papers, payroll and other “stuff” with both hands. In her deposition testimony, claimant was unsure as to how she fell, or what triggered her fall. In her affidavit in opposition to this motion, claimant stated that “I tripped over the protruding lip of the aluminum ramp” and stated further that still photographs developed from a security videotape of the incident had refreshed her memory of exactly how the fall occurred.

Defendants’ position on this motion is that (1) the defendants did not own or control the allegedly hazardous or defective condition (to wit: the ramp); (2) defendants neither created nor had actual or constructive notice of the allegedly hazardous or defective condition; (3) the ramp wasn’t inherently dangerous; and (4) claimant’s negligent conduct was the sole cause of the accident.

Claimant opposes the motion and expresses her “opinion” (her word) that the defendant, State University of New York, was involved in the acquisition of the ramp and that she “believe[s]” (her word) that the defendant owns the ramp. However, there is nothing more than these suppositions to support claimant’s position on acquisition and ownership, in the face of multiple depositions and affidavits offered by knowledgeable employees of defendants and PACES to the contrary. As the Court of Appeals has stated:
[w]e have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim . . . ; mere conclusions, expressions of hope or unsubstantiated allegations are insufficient.
(Zuckerman v City of New York, 49 NY2d 557, 562). The record establishes that Claimant’s employer acquired, owned and controlled the portable ramp.

Claimant’s counsel and consulting expert also argue that the portable temporary ramp violates applicable building codes. Counsel argues further that the defendant was responsible under the agreement between defendant University and PACES for all repairs and responsible for “making all necessary capital improvements in order to comply with all applicable federal, state and municipal health and safety codes”. Claimant equates the portable ramp with a permanent structure and concludes that as a permanent structure, under the codes it should have had a guardrail and a handrail, and that the protruding lip would have been a safety hazard for a permanent ramp. Additionally, it is argued that the portable ramp constituted a “capital improvement” and was thus the responsibility of defendants.

It appears that the parties do not dispute that an out-of-possession landlord who does not exercise control over the premises is not legally responsible for dangerous conditions on the premises. However, it is claimant’s position - contrary to that of defendants - that under the terms of the agreement between defendant and PACES, the defendants maintained control over the premises, were responsible for repairs and capital improvements, and that the maintenance and installation of the ramp fell within the responsibilities of defendants under the agreement.

Neither the facts of the case nor the terms of the agreement support claimant’s position. The relevant provisions of the agreement between defendants and PACES provide that:
[t]he Corporation [PACES] shall take good care of the property set forth in Exhibit D [Exhibit D includes a list of buildings, together with their respective square footage and descriptions of each space - i.e. dining services, laundry room, equipment storage, etc.], and shall maintain it in a clean, sanitary and orderly condition. The Campus [defendants] shall keep such specified premises in good repair and make all necessary capital improvements in order to comply with all applicable federal, state and municipal health and safety codes. Any alterations or improvement to the premises that may be paid for by the Corporation shall become the property of the State University.
. . .
The Corporation shall, upon termination of this agreement, return the facilities provided hereunder, or the applicable portion thereof in the event of partial termination or cessation of a particular activity . . ., in good and clean condition.
It is clear from the agreement that the defendants were responsible for the integrity of, and repair to, the leased buildings, and to make necessary capital improvements. However, the portable ramp in issue was not any part of the “premises”. It was undisputedly a portable, removable ramp, which was not permanently affixed to the building. No facts are offered in opposition to this motion to suggest that this ramp was anything other than a piece of PACES’s equipment, no different than a food processor, trays, or rolling carts. The presence of a hook or eyelet on the wall to hold the stowed ramp does not transform the ramp into a part of the structure, any more than a hook in a wall transforms a framed photo into a part of the structure. The terms of the agreement demonstrate that, other than for repair of the premises and capital improvements, control of the leased premises was ceded to claimant’s employer, and control did not remain with the state. The portable ramp was the responsibility of Claimant’s employer, not the defendants.

Turning to the issue of negligence, generally a landlord is responsible for those portions of the premises over which it retained control, and the right to reenter for repairs may be evidence of control (see Zolezzi v Bruce-Brown, 243 NY 490; PJI 2:105). However, liability of the landowner does not extend to injury from items owned and controlled by the tenant except in very limited circumstances. As the Court of Appeals noted in Roark v Hunting, 24 NY2d 470 at 476-477, “[i]n all cases where the landlord has been held liable for the result of negligent acts of the tenant, the landlord actually participated in some way in such negligence or by his own negligence contributed to the result.”

In Slater v Hitchcock, 276 AD2d 998 (3d Dept 2000), the defendants had given permission to relatives to place a mobile home on a vacant portion of defendants’ property. Ryder, a friend of defendants, brought a backhoe to the property, as a volunteer, to help clear and prepare the site. Plaintiff decided to use Ryder’s backhoe, and while doing so, was injured and subsequently sued. The court found, in relevant part that:
[i]t is well settled that a landowner cannot be held to be an insurer of the safety of those who are present on his property (see Jarvis v Eastman, 202 AD2d 826, 827) so long as the property is in a “reasonably safe condition, considering all of the circumstances including the purpose of the person's presence and the likelihood of injury” (Macey v Truman, 70 NY2d 918, 919, amended 71 NY2d 949).

Any further claim that an obligation fell upon Hitchcock, as landowner, to warn of the backhoe's unsafe condition or of the proper method of its operation is untenable since Hitchcock neither directed nor supervised the work in any manner (see Jarvis v Eastman, 202 AD2d 826, supra; Blais v Balzer, supra).
(Slater v Hitchcock, 276 AD2d 998, 999-1000).


The facts offered in support of this motion establish that defendants exercised no ownership or control over the portable ramp. By contrast, claimant only offered conjecture and supposition as a basis for claiming the state had ownership and control of the ramp. Likewise, there is no evidence that it was defective. As mentioned previously, however, it did have a protruding lip (claimant’s counsel attempted to serve as a witness and through his affidavit “testify” that the lip was approximately 3 inches in height. Photographic exhibits show the lip to be of limited height and counsel’s “testimony” would appear to be generally accurate, based upon visual observation of the photos), which though an expected element in the design of a portable ramp, could be considered a dangerous condition. The condition was readily apparent, and would be obvious to anyone who observed the ramp.

As the Court of Appeals has stated, “[w]e have long held that a landowner has no duty to warn of an open and obvious danger” (Tagle v Jakob, 97 NY2d 165, 169). The court went on to note that while the issue of whether the hazard is open and obvious is usually a jury question, a court may make the determination as a matter of law “when the established facts compel that conclusion” Tagle v Jakob, 97 NY2d 165, 169).

“For a condition to be open and obvious as a matter of law, it must be one that could not be overlooked by any observer reasonably using his or her ordinary senses” (Garrido v City of New York, 9 AD3d 267, 268 [1st Dept 2004]). Both common sense and observation would reveal that the portable ramp had a protruding lip, which could cause a person to trip. In this case, claimant had used the ramp multiple times a day for years and was well aware of its location and configuration. Even if the court accepts as true claimant’s testimony and affidavit that she did not know it was her employer’s policy to have the ramp stowed when not in use, nevertheless she could have stowed the ramp herself if she considered it a danger. And, as the manager of the facility, she could have directed an employee to stow it for her, so that the stairs would be available for her use. In any event, since the ramp was portable, owned and controlled by the tenant and not a part of the real property, defendant would not be liable for its use.

The issues in this claim are similar to those presented in Prairie v Sacandaga Bible Conference Camp, 252 AD2d 940 (3rd Dept). The plaintiff was injured in a fall from a ladder while doing volunteer work on the defendant’s premises. He had been assigned to assist with removing leaves from the roof of one of the camp’s buildings. When he arrived at the building, no one was present. On his own, plaintiff decided to use the ladder to reach the roof, and in doing so, fell. His expert’s affidavit stated that the ladder was not appropriate for the task and was improperly placed. The appellate division affirmed the lower court’s decision granting summary judgment to the defendant landowner. The appellate court stated that:
[f]undamentally, a landowner is not an insurer of the safety of those present on his or her property and no liability will be imposed for an injury resulting not from any condition present on the land but from the manner in which the injured party engaged in a voluntary activity over which the landowner exercised no supervision or control (see Jarvis v Eastman, 202 AD2d 826, 827; see also Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315; Lionarons v General Elec. Co., 215 AD2d 851, affd 86 NY2d 832).
. . .
A ladder is a “simple appliance” (Dougherty v Weeks & Son, 126 App Div 786, 790) and in cases such as this where the dangers associated with its use are obvious and readily apparent, there can be no liability on defendant's part for failing “to protect plaintiff from the unfortunate consequences of his own actions” (Macey v Truman, 70 NY2d 918, 919, amended 71 NY2d 949; see Christmann v Murphy, 226 AD2d 1069, lv denied 89 NY2d 801).
(
Prairie v Sacandaga Bible Conference Camp,
252 AD2d 940, 941-942 [3d Dept]).


Here, the defendants exercised no supervision or control over the portable ramp. That the ramp was necessary for loading and unloading materials and supplies is unrefuted. Claimant herself had both the personal right and the managerial authority to order the stowing of the ramp, was well experienced with the ramp, and its protruding lip was obvious and readily apparent. Her fall was the consequence of her own actions.

Pepic v Joco Realty, Inc., 216 AD2d 95 [1st Dept 1995] involved a cleaning person who tripped over an office planter while cleaning and sued the owners of the building. Plaintiff admitted to have previously cleaned the same area around the planter on three or four occasions without incident. Summary judgment was granted to the defendant owner and affirmed by the appellate division, which stated:
[t]here is no duty to warn against a condition which is readily observable” (Smith v Curtis Lbr. Co., 183 AD2d 1018, 1019). This is not “the usual slip and fall situation where a plaintiff is caught by surprise when confronted by a dangerous condition which results in a fall and injury” (supra, at 1019). Defendants were not the insurers of plaintiff’s safety.
(Pepic v. Joco Realty, Inc., 216 AD2d 95 [1st Dept 1995]). In light of all of the foregoing, the court finds no basis upon which to hold defendants liable for claimant’s injury.

Claimant’s opposition papers also assert that the ramp was defective for lack of handrails. First, it would be noted that handrails would appear incompatible with the lightweight portability of the ramp, and presumably would have prevented the ramp from being stowed. More importantly, however, claimant testified that she had both hands filled with books and documents, and thus could not have used a handrail even if same had been available. Thus there can be no causal connection between the lack of a handrail and injury to claimant.

Lastly, in opposition to the defendant’s motion, claimant argues that the ramp constituted a codes violation. It is uncontroverted that Bowman Hall, the site of the incident, was constructed in the early nineteen-seventies. As such it predates the 1984 building code, and under well-settled law, the code is not applicable to buildings constructed before 1984 (Matter of Rabinor v City of Ithaca Building Code Board of Appeals, 252 AD2d 290 [3d Dept 1998]; Koepke v State of New York, 9 Misc 3d 1125[A]). Even if the code were applicable, claimant’s argument is misplaced, as claimant utilizes provisions applicable to permanent structures, not to a portable temporary ramp, easily stowed. Contrary to claimant’s position, this ramp did not constitute a “block” to egress. Alternatively, claimant appears to argue that the lack of discussion about portable ramps in the code equates to a prohibition against the use of a portable ramp. This argument is not persuasive and the court does not find the ramp to be a violation of the code (apparently neither did the codes inspector, as Bowman Hall had been inspected favorably just ten days prior to the incident).

In conclusion, the defendants did not own, create or control the alleged dangerous condition - the portable ramp. They had no duty to warn of the condition. The lip of the ramp was, if dangerous, open and obvious and “could not be overlooked by any observer reasonably using his or her ordinary senses” (Garrido v City of New York, 9 AD3d 267 [1st Dept 2004]). Furthermore, claimant was not just “any observer” - claimant was the manager of the facility, had it within her power to move the ramp or order it stowed, and she had, on a regular basis, multiple times a day, for years, traversed this ramp and was well aware of its configuration.

Defendants’ motion for summary judgment is granted and the claim is dismissed.


June 3, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims