|Claimant short name:||LOPEZ|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Grey & Grey, LLP
by: Sherman B. Kerner, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
by: Cheryl Rameau, AAG
|Third-party defendant's attorney:|
|Signature date:||September 7, 2010|
|See also (multicaptioned case)|
This is the decision following the trial of the claim of Carmen Lopez arising from her fall in a courthouse lobby when her foot got caught on the base of a metal barrier. It was February 27, 2007, and Ms. Lopez had arrived at, or just before, 9 a.m. to begin jury service.
Claimant testified that she had entered the Manhattan criminal court building at 100 Centre Street through the revolving doors of its south entrance. The weather was cold, but there had been no precipitation, and the lobby area was dry. Nor, according to Ms. Lopez, was the lighting in the area a problem. The claimant was holding a shoulder bag, and her shoes had rubber soles. She did not wear glasses for any purpose.
Ms. Lopez testified that there were two metal detectors (or magnetometers) about 10 or 15 feet apart. Lopez proceeded to the one on the right, where she recalled that ahead of her there were "a few people, like two or three," and implied that the line to the left was a little shorter by saying that, "the other side was only like two persons."
At that point, a court officer motioned to her, without speaking, to come over to the other magnetometer. On cross-examination, Ms. Lopez concurred with the description of the officer's motioning as meaning: "Come over here because the line is empty." As a result, Ms. Lopez turned to her left and started walking toward the officer and the magnetometer on the left. She took no more than three steps and then, "I felt my foot get caught in, you know, something and I just fell down. I went forward, [I] fell."
Claimant did not see what caught her foot until after the accident:
Well, I saw the barriers and I saw the flare . . . like an upside down U and I, I know it was there that I got caught because I could feel it in my feet, like you know, when you get caught with something that is holding you back.
What Ms. Lopez was referring to was a metal barrier of the kind depicted in the photograph that is claimant's exhibit 1. It is silver-colored, three or four feet high, with vertical slats, and the particular feature that caught claimant was one end of the inverted metal V's or U's that the barrier rests on. Entering a courthouse for her initial day of jury duty, Ms. Lopez was focused on the officer directing her. The first signature on the Aided Report is that of Officer John Allen, who in the Report's brief narrative is described as attending to Lopez along with Sergeant Dolan (cl exh 3), but the officer who waved her over was never specified at trial.
There were apparently no eyewitnesses to claimant's fall, and Lopez's testimony as to what happened went largely uncontradicted. The only other fact witness who took the stand at trial was Lieutenant Peter Dolan, then a sergeant serving in a supervisory capacity for the lobby operations of the 100 Centre Street facility. Dolan was called over, informed that a woman had tripped, noted that she was being attended to by another court officer, and returned to his other duties.
As can be seen from the photo that is claimant's exhibit 2 and as Lieutenant Dolan testified, the court also uses stanchions resting on flat metal bases and connected with elastic bands - - like those seen in banks and movie theaters. It should be noted that the metal barriers also come with legs that rest on a flat base, not the inverted V that tripped up claimant, and Lieutenant Dolan indicated the court uses those as well.
* * *
The State has a duty to maintain its premises in a safe condition, but such does not make it an insurer. That Ms. Lopez unfortunately suffered an accident as she was about to become a juror does not necessarily implicate negligence on the part of the defendant. Clairmont v State of New York, 277 AD2d 767 (3d Dept 2000), lv denied 96 NY2d 704 (2001).
To prevail, claimant must prove that what caused her to fall was a dangerous condition and that defendant (assuming it did not create the condition) had actual or constructive notice of the condition or defect. Gordon v American Museum of Natural History, 67 NY2d 836 (1986).(1)
There are cases in which a condition may not be dangerous in itself, but otherwise constitutes a snare or trap - - but such situations require some form of a defect, which could include a defect in design, installation or maintenance. Bullock v Anthony Equities, Ltd., 12 AD3d 326 (1st Dept 2004).
Claimant called to the stand Carl Abraham, a licensed professional engineer, who gave the opinion that it was improper for the Manhattan criminal court to use metal barriers, instead of the aforementioned stanchions with flat bases and elastic bands. Mr. Abraham testified that such metal barriers were meant to control crowds like those along a parade route or involved in picketing. The stanchions, on the other hand, are an "easy way of directing people without harming them in any way whatsoever." Abraham stated that this inverted-V design was a "hidden hazard" in a context where the individual is naturally focused on the magnetometer and the officer directing her.
However, Mr. Abraham could point to no recognized standard, field study, or published article supporting his view that the use of such inverted-V barriers was proscribed under these circumstances. In that regard, as far as use in a court setting goes, see Feliciano v State of New York, 13 Misc 3d 1208(A) (Ct Cl 2006), in which the same kind of metal barrier with the U or V-shaped feet was apparently involved (but so too was a rug, and the mechanism of Ms. Feliciano's fall is not quite clear).
Mr. Abraham also cited the human factor as a cause of claimant's accident, namely, "the ignorance and negligence of the officer [who] was in charge at that particular X-ray machine, that called her over, that placed her in a position of danger." But see Torres v West Street Realty Co., 21 AD3d 718 (1st Dept 2005).(2) No precedent has been advanced that the direction of an individual into a less crowded line by an authority figure such as a court officer, could transform a condition or situation that was not dangerous into one that was. Nor was there any testimony that claimant was an individual who, for example, was unsteady on her feet or acted confused, which might have alerted an officer to consider assisting her more directly. Moreover, Lieutenant Dolan testified that he knew of no prior accidents caused by the V-shaped leg of a barrier and had received no complaints about it.
In view of the foregoing, Carmen Lopez has not met the burden of proving her case by a fair preponderance of the credible evidence, and claim no. 115230 is dismissed. The Clerk of the Court is directed to enter judgment accordingly.
September 7, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. It might be noted that the fact that a condition is open and obvious will not trump liability, but can result in claimant bearing some portion of the liability. Being open and obvious relieves a premises owner of the duty to warn, but a dangerous condition in any event must be remedied or shielded from public intrusion. See for example, Westbrook v WR Activities-Cabrera Markets, 5 AD3d 69 (1st Dept 2004).
2. The cases cited in the post-trial submission made on behalf of claimant do not persuade: Ramos v Charles, 71 AD3d 1107 (2d Dept 2010); Velazquez v New York City Health & Hosps. Corp., 65 AD3d 981 (1st Dept 2009); and Fonville v New York City Health & Hosps. Corp., 300 AD2d 623 (2st Dept 2002).