Claimant, admittedly, completely failed to observe where she was walking (see Rick v DiFusco, 69 AD3d 603). It is solely her lack of attention that proximately caused her injuries. To hold otherwise would make the State an insurer.
|Claimant(s):||KATHLEEN A. HENNING and WAYNE R. HENNING, Sr.|
|Claimant short name:||HENNING|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||CAPASSO & MASSARONI, LLP
By: Paul Briggs, Esquire
|Defendant's attorney:||ANDREW M. CUOMO
Attorney General of the State of New York
By: Senta B. Siuda, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 7, 2010|
|See also (multicaptioned case)|
Claimant(1) fell and was injured in the area of a handicap access ramp built by the State of New York in front of the Village of Palmyra Office Building. She and her husband are seeking to recover damages from the State as a result. The claim was bifurcated and this Decision relates solely to liability.
On October 13, 2004, Wayne Henning, Sr., Claimant's husband, who owns a computer store, was contacted by the Village of Palmyra Court Clerk to address some computer problems. The Court Clerk's Office is located in the Village of Palmyra Hall (Village Hall) at 144 East Main Street, which is also State Route 31. The Hennings drove to the Village Hall that day arriving at approximately 11:30 a.m. Mr. Henning parked in the bank parking lot on the east side(2) of the Village Hall. There are three possible routes to the front door of the Village Hall, a ramp on the east side, a ramp on the west side and a walkway with stairs in the center. They all begin at various points on the sidewalk in front of the building.
Mr. Henning testified that he and Claimant used the east ramp to enter the Village Hall. When he finished his work, the Hennings left the building and drove to a nearby church to attend a Rotary meeting. During the meeting, the Court Clerk called to advise Mr. Henning that he left a tool in her office. After the Rotary meeting, the Hennings drove back to the Village Hall. This time, Mr. Henning parked at the curb in front and to the west of the Village Hall, near the west ramp entrance.(3) His vehicle was just to the west of the handicap ramp.
Claimant was in the front passenger seat next to the curb and sidewalk, and she went in to retrieve the tool. She left the vehicle and used the west ramp to enter the Village Hall. Shortly thereafter, Claimant exited the Village Hall, walked down the front steps to the sidewalk and approached the vehicle. According to the Hennings, Claimant made eye contact with and was trying to talk to her husband who was in the car. Mr. Henning rolled down the passenger-side window to hear what she was saying. The Court Clerk was apparently having computer difficulties again and needed Mr. Henning's assistance.
As Claimant walked across the sidewalk talking to her husband, she "continued walking into like air"(4) and fell. As a result of the fall, she sustained injuries.
The area immediately adjacent to Claimant's car was brick and abutted the sidewalk. When Claimant left the car, she crossed the brick pavers and cement sidewalk to the west ramp. By coming down the stairs, Claimant was further east. The parking space just to the east of Claimant's vehicle and in front of the Village Hall is a handicap space. The curb for that parking space is bumped in to allow for persons needing wheelchairs or other devices to have sufficient room to exit their vehicle without being in the travel lane. Behind (or to the west of) this recessed parking spot is a cement ramp leading to the brick pavers which abut the sidewalk. There is a six-inch difference in height between the street level and the top of the ramp. The ramp was built by the State to allow persons parking in the handicap space to access the sidewalk. Claimant walked off the sidewalk and fell on or near the cement ramp.
Claimant's version of her fall and her awareness of the ramp was attacked on cross-examination using her July 3, 2007 deposition and her corrections(5) thereto. In her deposition, Claimant originally said she stepped down onto the ramp but corrected that in March 2008, consistent with her trial testimony, that she did not recall seeing the ramp or the height differential between the ramp and the sidewalk. Also, at her deposition Claimant did not know why she fell, but she corrected this eight months later to say she had not noticed there was a change in the level of the sidewalk. Despite not giving the ramp much thought, she acknowledged both during her deposition and on cross-examination, that she knew the ramp was there.
From the testimony of Claimant's expert, Conrad Hoffman, and the State's experts, Wesley Alden and Bruce Cunningham, it was clear that the State had engaged in an extensive reconstruction project in Palmyra that involved the travel lanes, the curbs, drainage, lighting, water main, etc., on State Route 31. Planning began in 1993, the design phase began in 1996, and was completed in August 2001.(6) The ramp and sidewalk area in question were completed in August 2003. Both Mr. Alden, a civil engineer with the State, and Mr. Cunningham, a landscape architect, were involved in the design phase of the project. Mr. Hoffman, also a licensed engineer, had extensive experience with designing and constructing handicapped ramps and implementing other requirements of the Americans with Disabilities Act(7) (ADA) throughout the State of New York.
Mr. Hoffman explained that after the enactment of the ADA, the State was required to implement the regulations whenever a street was reconstructed, as it was in Palmyra. He reviewed numerous documents and visited the accident site, and then issued a report of his findings along with photographs,(8) a copy of New York State Highway Law § 330,(9) and the regulations to his report. It was his opinion that the ramp on which Claimant fell was not constructed in accordance with the ADA Regulations as they existed at the time,(10) and he believed it was a tripping hazard for pedestrians. Mr. Hoffman relied upon § 4.7.5 of the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG)(11) which reads:
Sides of Curb Ramps. If a curb ramp is located where pedestrians must walk across the ramp, or where it is not protected by handrails or guardrails, it shall have flared sides; the maximum slope of the flare shall be 1:10 (see Fig. 12 [a]). Curb ramps with returned curbs may be used where pedestrians would not normally walk across the ramp (see Fig. 12 [b]). (Emphasis in original).
It was his position that a perpendicular ramp, as opposed to the parallel ramp the State constructed, could have and should have been designed and constructed for this handicapped parking space. In the alternative, he believes a handrail or guardrail should have been added as set forth above.
The State's witnesses, Mr. Alden and Mr. Cunningham, both testified that § 14 of the ADAAG guidelines should be used instead of § 4 (as Mr. Hoffman testified), when designing public rights-of-way and a memo(12) from the Regional Landscape Architect, Edward J. Olinger, contains the same conclusion. Section 14, however, was provisional and had never been enacted or adopted.
The State hired consulting engineers, Erdman Anthony, to assist with designing the Route 31 project in Palmyra and Mr. Cunningham reviewed their work. The consultants needed some direction in designing handicap accessible parking spaces, and Mr. Cunningham provided the design depicted in ADAAG § 14 (Fig. 62 [b])(13) to the consultants who incorporated it into the design plans.(14)
Figure 62 (b) is one example of accessible parallel on-street parking spaces showing a single handicapped space with a "parallel access aisle" or indentation which creates an extra wide parking space and a reduced pedestrian walkway. This extra space allows either a handicapped driver or passenger to exit the vehicle safely without entering the travel lane. The access ramp in this example, like the one in front of the Village Hall, is at the rear left of the parking space and parallel to the sidewalk. Mr. Hoffman testified that Figure 62 (b) was not sufficiently detailed to construct the ramp in accordance with the sections of the ADA actually in effect at that time. Another example of accessible parallel handicap parking is Figure 62 (a), which shows two parallel access aisle handicapped spaces with a perpendicular access ramp with flared sides. Mr. Hoffman opined that this is the type of ramp which should have been installed at this location.
New York State Highway Law § 330(15) reads:
Ramps in street curbing:
No public street, sidewalk adjacent to a curb, sidewalk adjacent to a parking lot, sidewalk adjacent to a private road open to public motor vehicle traffic or highway shall be constructed or reconstructed unless the curbing thereof is designed and constructed so as to allow reasonable access to pedestrian crosswalks for persons with disabilities, in accordance with accessibility guidelines mandated pursuant to the federal Americans with Disabilities Act of 1990, as amended.
Mr. Cunningham testified that the State had to design and work within its right-of-way which ended at the far side of the sidewalk. He also said that the design had to satisfy the State Historic Preservation Office (SHPO) which required the curb line to be maintained and even.
Both State experts felt a crosswalk-type ramp(16) or perpendicular-type ramp with flared sides, as proposed by Mr. Hoffman, would not fit within the space available without impacting the sidewalk and traversing pedestrians. They both also took the position that ADAAG § 4.7.5 did not apply to the ramps in question because, as placed, it was not a ramp that pedestrians must walk across. They both testified that, in their opinion, this ramp design and installation complied with the ADA and New York State Department of Transportation (NYS DOT) requirements.
LAW and DISCUSSION
The State has the duty to construct and maintain its roadways and adjacent areas so that they are in a reasonably safe condition under the circumstances(17) (Stiuso v City of New York, 87 NY2d 889; Friedman v State of New York, 67 NY2d 271). This does not mean that the State is an insurer against any injury, but its duty requires it to protect against foreseeable risks of harm (Tripoli v State of New York, 72 AD2d 823; Mochen v State of New York, 57 AD2d 719; Basso v Miller, 40 NY2d 233). To establish the State's liability, it is Claimant's burden to show by a preponderance of the evidence that a defective or dangerous condition existed which the State either created or had actual or constructive notice of and failed to remedy (see Richardson v Rotterdam Sq. Mall, 289 AD2d 679; Billington v State of New York, 33 AD2d 822). Creation of the dangerous or defective condition establishes actual notice (Mercer v City of New York, 223 AD2d 688, 690, affd 88 NY2d 955 ; Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 affd 64 NY2d 670 ). Claimant must also establish that the defective or dangerous condition was the proximate cause of her injuries.
Claimant argues that the State created the defective condition of this ramp by failing to design and install a ramp that complied with the accessibility guidelines of the ADA specifically § 4.7.5 and figure 62-A, as required by Highway Law § 330.
Highway Law § 330 requires that any reconstruction of a public street or sidewalk adjacent to a curb or highway be constructed to allow reasonable access to persons with disabilities in accordance with the ADA. The ADA's purpose is to address issues of discrimination, it does not set safety standards or alter the scope of the duty imposed by common-law negligence principles (see Lugo v St. Nicholas Assoc., 18 AD3d 341; see also for example McCree v Southeastern Pennsylvania Transp. Auth., 2009 WL 166660 [E.D. Pa. 2009]; Dunfee v Oberlin City School Dist., 2007 WL 978102 [N.D. Ohio 2007]; Merker v Miami Dade Co. Fla., 485 F. Supp 2d 1349 ; Levin v Dollar Tree Stores, Inc., 2006 WL 3538964 [E.D. Pa 2006]).
The critical question here is whether the handicap accessible ramp as designed and installed was a dangerous or defective condition which proximately caused Claimant's injuries.
Claimant's expert testified that the ramp as designed and constructed created a tripping hazard because it allowed pedestrians to walk across an unguarded curb adjacent to the ramp. In an effort to distinguish the location of the ramp from the sidewalk a different shade of concrete was utilized, however, the color is a similar shade to the sidewalk curb on the approach Claimant was taking so it is difficult to see the height differential. This is particularly apparent in Exhibits 6, F, and G.
Although Claimant is charged with seeing that which in the normal use of her senses can be seen and an open and obvious condition relieves the State of the duty to warn; it does not relieve the State of its broader duty to construct and keep its property, including sidewalks and handicap accessible ramps in a reasonably safe condition (Kimen v False Alarm, Ltd., 69 AD3d 579; Lauricella v Friol, 46 AD3d 1459; MacDonald v City of Schenectady, 308 AD2d 125).
Here, this was a new ramp configuration in place for less than 14 months and so, the absence of other similar accidents is not determinative of whether this ramp was a dangerous condition. The Court relies on the pictures in evidence (specifically Exhibits 6, F, and G) to find that it was a dangerous condition. At the exact location where Claimant's vehicle was parked it is entirely foreseeable that a pedestrian would walk across the ramp to reach his or her car. From several feet away, looking ahead toward the ramp, based upon the pictures, it is difficult to see the height differential. A pedestrian, who looks away or is distracted closer to the ramp, could, based upon the view from several feet away, be misled into thinking the sidewalk continued and fall the six-inches from the sidewalk curb to the base of the ramp (see Jones v Shamrock of Ithaca, Inc., 2010 WL 4342280).
Yet, that is not what happened here. Claimant, admittedly failed to watch where she was walking. She was not misled by the coloring of the ramp into thinking the sidewalk continued, she completely failed to observe where she was walking (see Rick v DiFusco, 69 AD3d 603). It is solely her lack of attention that proximately caused her injuries. To hold otherwise would make the State an insurer.
The claim must be DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
December 7, 2010
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
1. The term Claimant will refer to Kathleen Henning as her husband's claim is derivative only.
2. Which is on the left side facing the Village Hall, shown in Exhibits 8 and 10.
3. Mr. Henning testified he was parked in the same spot as the black vehicle in Exhibit 5.
4. Trial Transcript, p. 114, line 14.
5. Exhibit A.
6. See Exhibit I.
7. 42 U.S.C., § 12101 et seq.
8. Exhibit 1.
9. Exhibit 1. However the statute attached was a version prior to the 1998 amendment. See also, Exhibit 2.
10. 28 CFR Part 36 and Appendix A, and 49 CFR Parts 27, 37 and 38; Exhibit J.
11. Exhibit J.
12. Exhibit K.
13. Exhibit L.
14. Exhibit I.
15. Exhibit 2.
16. Exhibit 12.
17. Although the Village of Palmyra may now have the responsibility for maintenance of this sidewalk and handicap access ramp, Claimant's position only implicates the State's construction of the ramp and adjoining sidewalk during reconstruction of State Route 31 (see Highway Law § 46).