Claim arising from trip and fall on sidewalk was dismissed for failure to prove dangerous condition and manner of accident.
|Claimant short name:||MORRIS|
|Footnote (claimant name) :|
|Defendant(s):||THE CITY UNIVERSITY OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Todd Restivo, Esq.|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Robert J. Schwerdt, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||July 14, 2010|
|See also (multicaptioned case)|
This is the decision following the trial of the claim of Atoya Morris that she tripped and fell because of a defect in the pavement of a sidewalk at Brooklyn College on April 11, 2006 (see the photographs that are cl exhs 3 & 3A).
Claimant was a student heading for a class that began at 6:20 in the evening. After parking her car, Ms. Morris walked through the gates of the college toward Boylan Hall where her class was usually held, but there was a note on the door directing members of the class to another building, James Hall, because it was set up for a video they were to see.
Morris walked toward James Hall along Bedford Avenue. It was clear out, "going towards dusk," and the sidewalks and roads were dry. Morris was wearing sneakers and was carrying her handbag and a tote bag for her books. She was not walking with any classmates.
When asked to describe exactly how her accident happened, claimant responded as follows:
I was walking from the Boylan gate towards James. I was walking and my foot got caught in the hole in the left corner of the, like the middle left and I fell forward.
She explained that it was her right foot that got caught, and that her hands and knees came in contact with the ground. Claimant recalled that she was looking straight ahead - - at the people who were walking towards her. Morris testified that she had not been in a hurry; even with the change in venue, she had plenty of time to make her 6:20 p.m. class; her accident had occurred between 5:30 and 6 p.m.
The City University, of which Brooklyn College is a senior college, has a duty to maintain its premises in a safe condition, but such does not make defendant an insurer - - that an accident occurred does not implicate negligence. Clairmont v State of New York, 277 AD2d 767 (3d Dept 2000), lv denied 96 NY2d 704 (2001).
To prevail on liability, claimant must prove that what caused her to fall was a dangerous condition and that defendant (assuming it did not create same) had actual or constructive notice of the condition or defect. Gordon v American Museum of Natural History, 67 NY2d 836 (1986).
There is considerable doubt as to whether the condition shown in the photographs in evidence was a dangerous condition.(1) The Court of Appeals explained in Trincere v County of Suffolk, 90 NY2d 976, 978 (1997) that there is no rule on pavement defects as to, for example, depth; instead it depends on the specific facts and circumstances of each case and is thus generally for the trier of fact. With that said, in Trincere, the Court of Appeals upheld as a matter of law a judgment for defendant after plaintiff presented its case: "After examination of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the 'time, place and circumstance' of the injury [citation omitted], the [trial] court correctly concluded that no issue of fact was presented." 90 NY2d at 978.
There is no probative evidence, or even an estimate on the dimensions of the defect in the instant case, which is essentially a semi-circular arc of cracked pavement with the 12 o'clock position nearest to the college grounds and 6 o'clock nearest the street. For example, no ruler was placed in the defect. Ms. Morris circled the 6 o'clock position on the photograph that is claimant's exhibit 3A as the spot where she caught her foot.
Claimant cites two cases in her post-trial submission for the proposition that the defect was dangerous and not trivial; one was Trincere, the other Robinson v Cambridge Realty Co., 58 AD3d 582 (1st Dept 2009). In each case, the size or dimensions of the defect was set out. Without suggesting that there is a bright-line or de minimis rule, it must be noted that the Robinson plaintiff fell in a hole in the sidewalk leading to her apartment building's garage, which hole was six inches long, four to five inches wide and two inches deep.
Claimant contends that the trial testimony of William Elfstrom, the administrative supervisor for the college's building trades, supports her position that the defect is a dangerous one. When shown photographs of the accident site, Mr. Elfstrom remarked that, "It looks kind of severe in this picture," and he agreed that it needed to be addressed. But the standard for repair by a campus supervisor is different from the legal one to be applied here. Moreover, in his six months as a supervisor prior to the accident (before that he had worked as a carpenter for the college), Elfstrom had walked that particular section of sidewalk twice a week and had never noticed the subject defect.
Morris' above description of her accident was brief, vague and none too vivid; she stated that her foot got caught, then when asked, specified that it was her right foot. She may not have seen what caused her to fall or just where her foot got caught: 1) she initially did not believe that she had been hurt except for hitting her hands and knees -- "I dusted myself off, picked up my things, my bag and my bookbag and I continued to go to class"; and 2) her only testimony about her awareness of the hole on that day was this exchange on direct examination:
Q. Did you see the hole before you fell?
Q. Did you see the hole after you fell?
Moreover, Ms. Morris' overall testimony contains a number of inconsistencies and portions that spark doubt, including the following:
- She remembered that her class was at 6:20, but not the name of the class, the movie that required the venue change or the name of the teacher, who was the only person associated with the college that she told about her accident that day. Yet, Morris felt comfortable enough with this teacher that she told her she had just "broke my butt."
- In addition, with twenty-four persons near her on the sidewalk, Morris said there were no eyewitnesses.
- At trial, claimant stated that no one had helped her when she fell, but when read her March 2, 2009 deposition testimony that a street vendor had come over, responded by distinguishing between being helped up from the ground, and a person coming over after she got up on her own.
- Morris testified that she had been in the area only a "few times" before the accident. It was not, claimant said, a route that she normally took, although she had been a full-time student for at least five semesters up to that point. Even accepting that, claimant then surprisingly testified that she had seen the hole before April 11, 2006, "[b]efore the accident, yes, when I was walking around the college."
- It is understandable that a person who thought she had only scrapes would not report the accident until her back began to bother her. But it might be noted that there was a security booth perhaps 10 or 15 yards away that was open until 11 p.m. every night, and that when claimant finally reported the accident on April 19, she did so by phone (def exh A). Claimant testified that she had gone to Beth Israel Hospital on April 16 or 17, and the following day to her own doctor. According to the hospital's records, Morris told the triage nurse that she "fell [one] month ago [and] has back pain since last week," although at trial when asked about the entry, claimant said she "wouldn't say a month ago . . ." (def exh C). A subsequent trauma that exacerbated a prior injury can be compensable as a matter of law if such can be proven, but if there was an earlier fall that claimant did not tell us about, it only serves to undermine her credibility.
Atoya Morris has thus not met the burden of proving her case by a fair preponderance of the credible evidence, and such includes where she fell, how she fell and whether the alleged situs was a dangerous condition. In view of the foregoing, claim no. 113156 is dismissed, and the Clerk of the Court is directed to enter judgment accordingly.
July 14, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. See claimant's exhibits 1, 2, 3, 3A and 5.