In the absence of such evidence or other notice that the window stuck, the absence of a handle on a window is not a defect. Despite Claimant's injury, based upon the evidence, the claim must be dismissed.
|Claimant short name:||ROBINSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||KEVIN M. FOX, PLLC
By: Kevin M. Fox, Esquire
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Michael R. O'Neill, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 1, 2010|
|See also (multicaptioned case)|
This claim alleges that Claimant was injured on August 3, 2006, as a result of the State's negligence in allowing an unsafe, dangerous, and defective condition to exist in Cabin 17 at Taughannock Falls State Park. The matter was bifurcated and this Decision addresses liability only.
Claimant, a forty-six-year-old, non-practicing attorney, was spending a week at Taughannock Falls State Park in Trumansburg, New York, with her extended family as they did every year. Her family reserves cabins and then each family chooses the cabin they want. Claimant shared Cabin 17 with her husband and son, which was a cabin her sister reserved.
On August 3, 2006, at approximately 11:00 a.m., Claimant's husband was playing golf and her son was out. Claimant was alone in the cabin and wanted to open the window on the north side to get some fresh air. Claimant said there was no handle on the window which is flush with the wall. As she faced the window, it was hinged on the right side. Claimant testified at first she tried to get her left hand between the window and the frame on the upper left side, but the bottom stuck and she could not open it.
Below the window, along the north wall, there is a small ledge.(1) Claimant put her right foot on the ledge and stood on her toes to place her right hand on the top left corner and pull the top corner of the window. The bottom still stuck and the window snapped closed, causing Claimant's right hand to come down along a broken window shade bracket(2) cutting her from her wrist to the top of her index finger. Claimant said her finger got stuck on the bracket. There was no window shade on the broken bracket at that time. Claimant hadn't noticed the broken bracket before she cut her hand.
After cutting her hand, Claimant went outside where her sister, Lynda Carty,(3) was walking by the cabin. Ms. Carty found their cousin, Kristi Sinclair,(4) an Emergency Medical Technician, who treated Claimant then drove her to the hospital for stitches.
Later that day or the next day, Claimant spoke with William Bibbie, from the park, about what had happened. He completed an incident report.(5) Park employee, William Armstrong, planed the bottom of the window and attached a handle. At some point, he replaced the shade brackets and gave the broken one to Paul Thorington.(6)
Admittedly, when Claimant encountered difficulty opening the window, she did not ask anyone to help her. She had asked the park personnel for assistance with other things in the past, including clearing an area of mud which her dogs kept getting into outside of her cabin.
Claimant had opened the south window earlier in her stay. That window had a clasp attached that could be used to open it. She testified either her husband or her son had opened the north window earlier in the week.
There were some differences in Claimant's testimony from her deposition which she attributed to the memory loss from a stroke she suffered. Claimant made notes about the incident a couple weeks after,(7) August 3, and reviewed those notes in preparation for trial which helped her remember some things she had previously forgotten.
By stipulation, the depositions of Ms. Carty,(8) Ms. Sinclair,(9) Paul Thorington,(10) Dan Klemann,(11) William Bibbie,(12) and William Armstrong(13) were received. It was also agreed that Claimant's husband, who is currently disabled, did not recall anything relevant to the case and would not testify.
The State called Paul Thorington, the Park Manager, at the time of the incident. When he learned of Claimant's injury the day after it occurred, he ordered an investigation.
William Bibbie, a Park Ranger Aide, took Claimant's initial statement but when Mr. Thorington learned the injury was serious, he had Dan Klemann, a Park Patrol Officer, follow-up. Officer Klemann completed an incident report(14) which contains pedigree information and a brief description of the incident. A supplemental report(15) indicates Mr. Thorington gave Officer Klemann the broken bracket which had been removed from the cabin by Mr. Armstrong. An investigative report(16) was completed which gave a more detailed description of the events and included photographs taken by Claimant and Officer Klemann. Officer Klemann also drew a diagram(17) of the cabin wall giving the window dimensions. Because the window top was 6-feet 10-inches from the floor and Claimant's driver's license indicated she is 5-feet 1-inch, Officer Klemann, in the report, speculated that Claimant may have used a step stool that was in front of the window in some of the pictures to reach the top of the window. Officer Klemann further speculated that Claimant lost her balance resulting in the injury. Claimant testified that she is actually 5-feet 3-inches, and acknowledged that she stepped on a six-inch ledge at the bottom of the wall below the window to reach the top of it. She denied losing her balance.
Mr. Thorington testified that an annual inspection is done of all of the cabins to insure they comply with the building code. In 2006, that inspection was completed on April 21, by Ron Gladstone, with the Engineering Department. The inspection report(18) has headings for various categories to be inspected but the only category relating to windows is window glass. The only problem with Cabin 17 noted on the inspection report was an interior light that was not working. No notations were made about the windows for Cabin 17. A notation was made on the report
under "doors and screens" that a door in Cabin 11 was sticking. Mr. Thorington did not know whether Mr. Gladstone checked if all of the windows opened and closed properly as part of his inspection.
Mr. Thorington said he, too, inspects the cabins yearly to check for obvious problems, including the windows. He was not sure if he checked the windows in Cabin 17. The cabins are rented from June through Labor Day usually with no vacancies. On Saturdays, between rentals, the cleaning crews prepare the cabins for the next occupants between 11:00 a.m. and 3:00 p.m. They check lights, clean the refrigerator, and generally clean the cabin. They sometimes fix a shade and report any problems they see. Mr. Thorington did not know if the windows were checked.
Claimant argues that the State was negligent in failing to correct two dangerous conditions in Cabin 17, a sharp metal bracket protruding at the top of the left-hand corner of the window frame and that same window was stuck and had no proper handle for opening. As a result of these dangerous conditions, Claimant argues she was seriously injured.
Claimant argued at trial that the Court should take judicial notice of the Americans with Disabilities Act (ADA), 42 USCA 12101, which she maintains required the State to provide locks, cranks, or other window hardware such as a window handle, in compliance with the Code of Federal Regulations under the ADA (28 CFR Part 36, Appendix A § 4.12.2). The Claimant did not assert a cause of action under the ADA.(19) Rather, she seems to assert that the regulations promulgated by the Department of Justice set the standard of care or provide some evidence of negligence in relation to accessible design applicable in this negligence claim against the State.
In Lugo v St. Nicholas Associates, 18 AD3d 341 [1st Dept 2005], the First Department held that, "[s]ince [the] ADA's purpose is to address the issues of discrimination and not safety, the act should not be construed as setting a safety standard. . ., even with respect to disabled plaintiffs." (id at 342). The Court went on to say, "[t]urning [the] ADA into a safety standard would in effect, require building owners to refurbish buildings immediately or face potential tort liability. . ." (id).
Although Lugo involved public accommodations by a private entity (ADA, Title III) rather than a public entity (ADA, Title II), the Court finds the reasoning in Lugo persuasive and equally applicable here. Moreover, research did not disclose any cases that have held that the ADA expands the duty of a landowner in negligence actions beyond the duty imposed under the common law. (See for example McCree v Southeastern Pennsylvania Transp. Auth., 2009 WL 166660 [E.D. Pa. 2009]; Dunfee v Oberlin City School Dist., WL 978102 [N.D. Ohio 2007]; Merker v Miami Dade Co. Fla., 485 F. Supp 2d 1349 ; Levin v Dollar Tree Stores, Inc., WL 3538964 [E.D. Pa 2006]).
Under the common law, the State like any real property owner, has a duty to act reasonably in maintaining its property in a reasonably safe condition in view of all the circumstances (Miller v State of New York, 62 NY2d 506, 511; Preston v State of New York, 59 NY2d 997; Basso v Miller, 40 NY2d 233). The landowner's duty is based upon the risk to be perceived, that is the "likelihood of injury to others, the seriousness of the injury. and the burden of avoiding the risk" (Basso, 40 NY2d at 241; Preston, 59 NY2d at 998). "The pertinent inquiry is not whether the property has been kept in perfect condition, eliminating all potential hazards, but whether the premises were reasonably safe in light of all the surrounding circumstances." (Lugo v State of New York, Ct Cl, Sise, Presiding J, March 28, 2005, Cl. No. 101169 [UID # 2005-028-003, citing McMullen v State of New York, 199 AD2d 603 [3d Dept 1993]; Tripoli v State of New York, 72 AD2d 823 [3d Dept 1979]).
Once the duty is defined, it is Claimant's burden to establish by a fair preponderance of the evidence that the State breached its duty of care by either creating or having actual or constructive notice of a foreseeably dangerous or defective condition which Defendant should have reasonably foreseen could cause injury, yet failed to correct or warn within a reasonable time (McKeon v Town of Oyster Bay, 292 AD2d 574 [2d Dept 2002]). A landowner can be charged with constructive notice if a dangerous condition exists for a sufficient period of time for the Defendant to have discovered the condition and remedied it before Claimant suffered injury (Gordon v American Museum of Natural History, 67 NY2d 836; Applegate v Long Island Power Auth., 53 AD3d 515 [2d Dept 2008]).
Undisputedly, the jagged and broken shade bracket was a dangerous condition. Even if the State could not possibly foresee a renter standing on a ledge below the window and reaching up to try and open the window, it is not a stretch to foresee a renter reaching up to reattach the shade to the window and being injured by the sharp edges of the broken bracket. The precise manner in which Claimant is injured need not be foreseeable as long as the harm was within the class of reasonably foreseeable hazards the State's duty was intended to prevent (Sanchez v State of New York, 99 NY2d 247, 252; Kriz v Schum, 75 NY2d 25, 34). Since there is no allegation and no indication that the State created this condition, the critical question here is whether the State had notice of it. If the bracket was broken at the time the cleaning crew cleaned this cabin early Saturday afternoon, the State might be charged with constructive notice (See Anthony v New York City Tr. Auth., 38 AD3d 484 [2d Dept 2007]; Rosati v Kohl's Dept. Stores, Inc., 1 AD3d 674, 675 [3d Dept 2003]; Rose v DaEcib USA, 259 AD2d 258, 260 [1st Dept 1999]; Kane v Ten Eyck Co., 267 App Div 789, affd 292 NY 701). But, the difficulty is Claimant did not establish that the broken shade bracket was present five days before Claimant's accident. There were three people in this cabin for five days before Claimant was injured, and there is no evidence of when this shade bracket was broken. There was no evidence that would support an inference that the bracket existed in that condition at the time the cleaning crew was last in the cabin before Claimant's stay. It would be pure speculation to assume it was present at that time. Moreover, if the shade was resting on this bracket at the time the cleaning staff were in the cabin, it is questionable whether the defect would have been sufficiently readily apparent to support a finding of constructive notice (see Applegate, 53 AD3d at 516; Lal v Ching Po Ng, 33 AD3d 668 [2d Dept 2006]; Personius v Mann, 20 AD3d 616 [3d Dept 2005], affd as modified 5 NY3d 857; Curiale v Sharrotts Woods, Inc., 9 AD3d 473, 475 [2d Dept 2004]; Abrams v Powerhouse Gym Merrick, Inc., 284 AD2d 487 [2d Dept 2001]). Also, Claimant encountered difficulty opening the window, in part, because it stuck or caught in the bottom left corner and had no handle.
To the extent that a "sticky" window can be found defective, posing a risk of foreseeable injury the question turns again to notice. Can the State be charged with constructive notice of this defective window? Again, there is no evidence of the length of time this window was in this defective condition. Claimant's husband and/or son had opened this particular window earlier in the week with no indication that the window was stuck at that time. Even if the Court assumes that the window was stuck before Claimant and her family took possession of the cabin, this was a latent defect. Did the State's duty to inspect and clean the cabins between patrons extend to trying each window for ease of opening? The Court is not persuaded the State's duty required such an inspection between each renter where there is no evidence of prior problems, a recurrent condition or that a problem existed at the time Mr. Gladstone or Mr. Thorington inspected the cabin (Bean v Ruppert Towers Housing Co., Inc., 274 AD2d 305 [1st Dept 2000]; Winecki v West Seneca Post 8113, Inc., 227 AD2d 978 [4th Dept 1996]; Monroe v City of New York, 67 AD2d 89 [2d Dept 1979]; Gonzalez v Banzer, 5 Misc 3d 1022[A]).
In the absence of such evidence or other notice that the window stuck, the absence of a handle on the window is not a defect (See and compare Easter v Cocco, 16 AD2d 1031 [4th Dept 1962]; appeal dismissed 12 NY2d 756 [landlord had no common-law duty to provide a handrail to stairs without a "defective condition or unusual hazard]; Gauss v State of New York, 286 App Div 934 [3d Dept 1955] [without a statutory requirement or an "unusual hazard" State had no duty to provide a handrail]).
Despite Claimant's unfortunate injury, based upon all of the evidence, the Court does not find the State can be held liable for Claimant's injury.
The claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.
December 1, 2010
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
1. Shown in Exhibit P.
2. Exhibit L.
3. Exhibit 8, deposition transcript.
4. Exhibit 9, deposition transcript.
5. Exhibit A.
6. Exhibit L.
7. Claimant's right hand and wrist were in a soft cast and sling after this accident which prevented her from writing notes earlier.
8. Exhibit 8.
9. Exhibit 9.
10. Exhibit G.
11. Exhibit H.
12. Exhibit I.
13. Exhibit J.
14. Exhibit B.
15. Exhibit C.
16. Exhibit D.
17. Exhibit K.
18. Exhibit F.
19. See Verified Claim filed April 9, 2007 and Claimant's Verified Bill of Particulars filed June 11, 2007. The Court does not reach whether a private right of action for money damages because of personal injury is permitted under Title II of the ADA, or whether the Court of Claims would have subject matter jurisdiction of such a claim (see Reynolds v State of New York, Ct Cl, Sise, Presiding J, July 20, 2006, Cl. No. 111088, Motion No. M-71284 [UID #2006-028-564]; Gill v State of New York, Ct Cl, Hudson, J., Oct. 1, 2007, Cl. No. 111561, Motion No. M-73805, [UID #2007-034-539]; Brown v State of New York, Ct Cl, Lack, J., Sept. 26, 2008, Cl. No. 109726, Motion No. M-75132 [UID #2008-033-318]).