|Claimant short name:||MICELI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||Rosenberg & Gluck, LLP
By: Erin M. Hargis, Esq.
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Alex J. Freundlich, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 8, 2021|
|See also (multicaptioned case)|
This is a claim by Lisa Miceli (Claimant or Ms. Miceli) against the State of New York (Defendant or State) alleging that she sustained injuries as the result of a trip and fall accident on a defective concrete walkway adjacent to the parking lot at field 6 of Jones Beach State Park. A trial on liability only was held via Microsoft Teams before this Court on April 20 and 21, 2021.
Testimony of Claimant, Lisa Miceli
Ms. Miceli testified that on May 17, 2016 she and a friend went on the four mile health walk depicted by markers placed along the boardwalk at Jones Beach State Park starting at field 6 (tr1 at 14-15, 16).(1) The health walk starts and ends at field 6. Although Ms. Miceli previously walked along this health walk path, on the prior occasions she had parked in a different location which had allowed access to the health walk directly from the parking lot without the need to use the concrete walkway where she tripped and fell (tr1 at 37, lines 18-22; at 38, lines 4-10). Ms. Miceli had no recollection of having seen the condition of the concrete walkway prior to her accident (tr1 at 16; at 37, lines 10-13).
Upon completing the walk, Ms. Miceli and her friend turned right from the boardwalk to continue on the concrete walkway in order to proceed to the parking lot (tr1 at 20, lines 9-22; at 23, lines 7-14; at 25, lines 1-5). Using the vehicles in the adjacent first row of the parking lot as a point of reference, Ms. Miceli indicated she tripped on the left side of the walkway in front of approximately the fourth car from the right (tr1 at 18, lines 6-7; at 21, lines 6-14; exhibits 5 and 13). She stated that her left foot got stuck in the uneven concrete, causing her to "ricochet" into a motion where she fell and was injured (tr1 at 17, lines 4-15). Ms. Miceli further testified that her left foot got stuck in the crevice where the two concrete slabs seem to have separated, causing her fall (tr1 at 32-33, 36; at 38, lines 15-22; exhibits 2, 3, 6, 8 and 10). The toe of her left foot got stuck in the uneven area of the walkway (tr1 at 39, lines 2-8; exhibit 6).
Exhibits 1 through 10 in evidence depicted the concrete walkway which runs east/west. The north side of the walkway is adjacent to the parking lot (tr1 [Lecky Testimony] at 59, lines 4-8). The crevice or crack where Ms. Miceli testified her foot became stuck was on the northern edge of the walkway where two concrete walkway slabs meet and connect to the parking lot (exhibits 1 and 2). Ms. Miceli noted that the slab to the right (east) in exhibit 3 was higher than the slab to the left (west) (tr1 at 28, lines 21-25; exhibit 3). The photographs in exhibits 1, 2, 3, 6, 8 and 9 showed that the area between the two concrete slabs was jagged, uneven and appeared to have a chunk missing. The crevice that caused Ms. Miceli to fall measured a little over half an inch deep at its lowest point and approximately three and one half inches wide (tr1 at 34, lines 7-10; exhibits 8 and 9).
Ms. Miceli indicated that immediately prior to her fall she had been having a conversation with her friend and was alternating between looking straight ahead and at her friend (tr1 at 37, lines 6-9). She admitted that she did not see the defect on the walkway prior to her fall (tr1 at 37, lines 10-13). After she fell, Ms. Miceli obtained emergency medical treatment but returned to Jones Beach the next day to report the accident (tr1 at 39, lines 9-18).
Testimony of Geoffrey Lecky
Geoffrey Lecky, a New York State employee, was subpoenaed to testify on Claimant's case. At the time of Ms. Miceli's accident he was the masonry supervisor at Jones Beach State Park, had been in that position for several years prior, and had worked in the masonry department for 37 years (tr1 at 56, lines 5-10; tr1 at 62, line 1; exhibit 23 at 6). One of Mr. Lecky's responsibilities was to ensure that the concrete walkways were safe (tr1 at 57, lines 1-6). He also indicated that it was the masonry department's responsibility to repair the walkway where Ms. Miceli's accident occurred (tr1 at 63, lines 1-5).
At trial Mr. Lecky identified the portion of the concrete walkway where Ms. Miceli fell (tr1 at 60, lines 13-19; exhibit 12). He stated that the beach at the bottom of Exhbit 12 is to the south and the top of the photograph is to the north (exhibit 12; tr1 at 58, line 16; at 59, lines 7-8; at 60, line 6). He noted that the different color of concrete running north to south along the two concrete slabs was a patch placed there because the left (westerly) slab had dropped and that the patch was to correct the resulting height differential (exhibit 7; tr1 at 66, lines 7-13; at 70, lines 14-17). He further testified that the left walkway slab had dropped because it was constructed on sand and because some of the sand had come out from underneath (tr1 at 66, lines 14-16). Mr. Lecky stated that he and the masonry department had patched the area (tr1 at 65, lines 13 - 22; at 67, lines 22-25).
He testified at trial that patches don't always hold up (tr1 at 69, lines 12-14). He also stated in his deposition that "a patch is a patch" and, as such, is not as tough as the walkway and that a patch will break at a different rate than the concrete walkway itself (exhibit 23 at 20-21). He also testified at trial that patches are not as strong as the concrete slab itself, in part because they are thinner than the slab (tr1 at 76, lines 11-18). He testified on direct and in portions of his deposition transcript read at trial that a patch with a thin edge such as was the case here is not expected to last a month before beginning to break apart (tr1 at 102, lines 7-19; exhibit 23 at 64; exhibits 1-9 ). However, in other portions of his deposition testimony which were read, Mr. Lecky indicated that there have been occasions when patches of this sort have lasted for considerably longer than a month (tr1 at 106-107; exhibit 23 at 63-64).
Mr. Lecky also testified that when a concrete patch is placed on top of existing concrete, the expectation is that the patch will not hold up (tr1 at 85, lines 9-13). Additionally, given the fact that the walkway slab was on sand and would continue to move and the larger pieces of concrete in the connected adjacent parking lot would not, it would be expected that the patch placed partially on the walkway and partially on the parking lot would break (tr1 at 85, lines 13-21; at 86, lines 9-13). Mr. Lecky also testified at his deposition that the patch placed on the northeastern side of the dropped slab "will not last forever. It will break before anything, because of the movement and it's smaller" (exhibit 23 at 28, lines 22-24; exhibit 7).
Mr. Lecky indicated at trial that there are no inspection records for this concrete walkway (tr1 at 86, line 25; at 87, line 12) and that he was unaware of when the last time anyone from the masonry department inspected the concrete walkway in question (tr1 at 86, line 25; at 87, lines 1-12).
Mr. Lecky testified that the condition at issue should have been repaired
(tr1 at 103, lines 2-4; exhibit 3). Further, he had experience with dropping slabs in other parts of Jones Beach but stated in his deposition that conditions at the other fields were not "as bad" as here "which is pretty bad" (exhibit 23 at 22, lines 19-25).
Mr. Lecky testified on cross-examination that he would examine the walkway area at field 6 once or twice a week and those inspections involved getting out of the car and walking through the area in question (tr1 at 113, lines 1-5; at 124, lines 10-22). If he noticed a deteriorating patch he would address it immediately (tr1 at 111, lines 17-20). In addition, he relied upon area supervisors to report conditions to him (tr1 at 111, lines 21-25; at 112, lines 1-8). Further, he stated that he would make repairs whether or not there was a work order submitted (tr1 at 87, lines 13-19; at 101, lines 1-6). He indicated that he could not determine the age of the condition, but opined that "the gap now is something that had not been there for a long time" (tr1 at 139, lines 17-25; at 140, lines 1-2). In his deposition he opined that he did not deem the condition at issue to be a tripping hazard, but stated that he felt that the condition required a repair (exhibit 23 at 29, lines 17-25; at 30, lines 1-8; at 61, lines 3-5).
Expert Testimony of Harold Krongelb, P.E.
Mr. Krongelb testified on behalf of Claimant during the second day of trial and confirmed Mr. Lecky's and Claimant's observations that the slab to the left slab had dropped (tr2 at 16, lines 16-25; at 17, lines 1-17; exhibit 7). He noted that since the walkway was constructed on sand and at a beach it is subject to erosion (tr2 at 18, lines 13-24). Mr. Krongelb opined that the walkway slab had dropped due to undermining of the sand beneath the walkway, which is visible in (tr2 at 18, line 25; at 19, lines 1-12; exhibit 7). He believed that the void beneath the sunken slab affected its stability and caused settlement (tr2 at 19, lines 13-25; at 20, lines 1-9). The sunken slab created a height differential between the dropped slab and the adjacent slab (tr2 at 25, lines 16-23).
Mr. Krongelb observed two patches which failed and would have been expected to fail; one which ran north/south between the two slabs and one which ran east/west (tr2 at 35-36). The east/west patch at the northern edge of the dropped slab, which was located partially on the walkway slab and partially on the parking lot, would be expected to break because the smaller walkway slab moved due to the movement of the sand beneath it while the larger parking lot portion did not (tr2 at 36, line 25; at 37, lines 1-21). As the walkway moved it pulled down on the patch causing the patch to break (id.). He also opined that it was not appropriate to use the concrete patches to repair the height differential between the concrete slabs created by the dropped walkway slab because concrete doesn't adhere to concrete and consequently would contribute to failure (tr2 at 43, lines 8-11; at 54, lines 11-14).
Mr. Krongelb further offered his opinion that the subject patches were certain
to break apart and allow penetration of water into the area, which causes further damage to the patch and underlying slab (tr2 at 34). He testified that water would be able to penetrate the expansion joint between the dropped slab and the adjacent slab (tr2 at 43, line 25; at 44, lines 1-24). Due to the thaw/freeze cycle, water in crevices can accelerate the breakdown of concrete (tr2 at 41-42).
Mr. Krongelb testified that there were two options which Defendant should have considered to repair the walkway instead of the patches (tr2 at 21-22). One would have been to cut a notch in the concrete walkway and filled it with appropriate material (id.). The other better option would have been to replace the sunken concrete slab (id.).
He also opined that the concrete patch in question requires constant monitoring which he considered to be up to four inspections per day because "a patch like this can go from . . . appearing good to appearing bad very quickly" (tr2 at 58, lines 10-25; at 56, lines 1-2; at 58, lines 1-22; at 64-65).
Testimony of Vincent Medina
Mr. Medina testified on behalf of the Defendant. He has been employed with New York State Department of Parks since 1999 (tr2 at 72, lines 22-24). He became a park manager in July 2011 (tr2 at 73, lines 12-13). He testified that during April and May of 2016 it had been his practice to drive through the area in question every day that he was working (tr2 at 74, lines 18-21). He also stated that he did not necessarily get out of his vehicle and walk on the walkway and that his view sometimes was obstructed by cars parked in the parking lot (tr2 at 76, lines 2-10).
Although Mr. Medina thought it would have been appropriate to submit a work request to repair the condition in question, he testified at his deposition that he did not consider it to be a tripping hazard (tr2 at 79, lines 10-23; exhibit 22 at 71). He did not see the condition prior to the accident and noted that "to the best of his knowledge" there had been no complaints regarding this area prior to the accident (tr2 at 77, lines 9-25; at 78, lines 1-2). He also stated that had his Department received a verbal complaint, no record of that complaint would have been generated (tr2 at 84, line 25; at 85, lines 1-11). In addition, he noted that had employees under his supervision seen the condition of the walkway as depicted by the photographs in evidence, they would have generated a work order to address it because it was a condition requiring repair (tr2 at 80, lines 4-7).
Law and Discussion
In order to establish a prima facie case of negligence a claimant must establish (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury suffered by the plaintiff which was proximately caused by the breach (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ; Donohue v Copiague Union Free School Dist., 64 AD2d 29, 32-33 [2d Dept 1978], affd 47 NY2d 440 ; Kampff v Ulster Sanitation, 280 AD2d 797, 797 [3d Dept 2001]). When the State acts as a landlord, it has a duty to maintain its premises in a reasonably safe condition (Basso v Miller, 40 NY2d 233, 241 ), although it is not an insurer of any and all injuries incurred by pedestrians on the grounds of its institutions (see Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]). Concomitantly, those who are on another's property have a duty to see and be aware of what is in their view and to use reasonable care to avoid accidents (Terrell v Kissel, 116 AD2d 637, 638-639 [2d Dept 1986]). In other words, they are expected " 'to see what by the proper use of [their] senses [they] might have seen' " (Le Claire v Pratt, 270 AD2d 612, 613 [3d Dept 2000], quoting Weigand v United Traction Co., 221 NY 39, 42 ).
In a trip and fall case, a claimant is required to establish that a dangerous condition existed and that the defendant either created the dangerous condition or had actual or constructive notice of such condition and failed to alleviate the condition within a reasonable time (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ). When "the alleged negligence involves a differential in height of two adjacent walking surfaces, there is no minimal dimension test or per se rule that a defect must be of a certain minimum height or depth in order to be actionable" (Besserman v State of New York, UID No. 2015-028-001 [Ct Cl, Sise, P.J., Feb 4, 2015]).(2) Rather, the question of whether such a differential constitutes a dangerous condition is generally for the trier of fact to determine based upon " 'facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the 'time, place and circumstance' of the injury' " (id., quoting Trincere v County of Suffolk, 90 NY2d 976, 978  [additional citation omitted]; see Powers v State of New York, UID No. 2016-018-701 [Ct Cl, Fitzpatrick, J., Jan. 20, 2016]). A defendant may avoid liability by proving that the alleged defect was too trivial and slight in nature to be actionable (Lamarre v Rensselaer County Plaza Assoc., 303 AD2d 914, 914-915 [3d Dept 2003]; Guerrieri v Summa, 193 AD2d 647, 647 [2d Dept 1993]); that it had no obligation to warn against a condition that could be readily observed by the use of one's senses (Stanton v Town of Oyster Bay, 2 AD3d 835, 836 [2d Dept 2003], lv denied 3 NY3d 604 ; Herman v State of New York, 94 AD2d 161, 163 [2d Dept 1983], affd 63 NY2d 822 ); and/or that the claimant failed in his/her duty to use reasonable care to observe his/her surroundings, to see what is there to be seen and to avoid accidents (Levitt v County of Suffolk, 166 AD2d 421, 423 [2d Dept 1990], lv dismissed 77 NY2d 834 ; Weigand v United Traction Co., 221 NY at 42).
"To constitute constructive notice, the defect must be visible and apparent and it must exist for a sufficient length of time before the accident to permit the defendant an opportunity to discover and remedy it" (Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798, 799 [2d Dept 2003] [citation omitted]). However, notice is not required if the condition is the result of prior defective repair (1A, PJI3d, 2:90 at 652, citing Princiotto v Materdomini, 45 AD2d 883 [2d Dept 1974]). Where there has been a prior defective repair by the defendant, no notice is required (1A, PJI3d, 2:90 at 652, citing Smilinich v Mays, 262 AD2d 1049 [4th Dept 1999]).
Here, the proof established that a dangerous condition existed which proximately caused Claimant's injury. The State's employees, Mr. Lecky and Mr. Medina, each testified that the condition of the walkway necessitated repairs (exhibit 23 at 29, lines 17-25; at 30, lines 1-8; at 61, lines 3-5; tr2 at 79, lines 10-23). The pictures accepted into evidence at trial also establish that the condition of the concrete walkway constituted a dangerous condition (exhibits 1-10).
Further, since the testimony and evidence demonstrated that the repair of the height differential caused by the sinking slab was defective, it is not necessary to need to consider questions of actual or constructive notice. Mr. Lecky knew that the patch used to repair the concrete walkway at issue did not always hold up, and sometimes degraded within a month (tr1 at 69, lines 12-14; exhibit 23 at 20-21). The testimony of Claimant's expert, Mr. Krongelb, also established that the patches were insufficient to repair the concrete walkway because it was foreseeable that the patches would inevitably break and cause the condition as it existed on the day of Claimant's fall (tr2 at 36, line 25; at 37, lines 1-21; at 43, lines 8-11; at 54, lines 11-14). The testimony of both Mr. Lecky and Mr. Krongelb establishes that Defendant's patching of the concrete walkway was a prior defective repair and therefore no actual or constructive notice of the condition was required (see Smilinich v Mays, 262 AD2d at 1049; Princiotto v Materdomini, 45 AD2d at 884).
Although not required to establish constructive notice, the Court further finds that due to the "the irregularity, width, depth and appearance of the defect apparent from the concrete surface exhibited in the photographs, that the condition had to have come into being over such a length of time that knowledge thereof should have been acquired by the defendant in the exercise of reasonable care" (Taylor v New York City Tr. Auth., 48 NY2d 903, 904 ). Given that Mr. Medina testified that either he or his staff would observe the area in question everyday that he was working (tr2 at 76, lines 23-25), the defect should have been discovered and remedied by Defendant. Mr. Lecky also testified that the condition could not have appeared overnight (tr1 at 121, lines 1-3). The pictures submitted at trial compel the conclusion that the defect did not appear overnight and likely existed for many days prior to Claimant's fall. The Court therefore finds that Claimant established that Defendant also had constructive notice of the defect in the concrete walkway.
Finally, the testimony established that Claimant had some culpability for the accident, as " there was absolutely nothing to prevent Claimant from carrying out her duty to pay attention and observe relevant details of the surface on which she was walking" (Besserman v State of New York, UID No. 2015-028-001 [Ct Cl, Sise, P.J., Feb. 4, 2015]). The Court therefore apportions 30% of the liability for this accident to Claimant and 70% to Defendant.
All trial motions are hereby denied.
The Clerk is directed to enter interlocutory judgment accordingly. A trial on the issue of damages will be held as soon as practicable.
October 8, 2021
Hauppauge, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims
1. References to the transcript of the April 20 proceedings are referred to as "tr1" and references to the April 21 proceedings are referred to as "tr2".
2. Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.