Opinion
No. 2024-50898 Claim No. 136057
06-24-2024
Margaret Ellis, Claimant, v. State of New York, [1] Defendant.
For Claimant: ROY C. GORDON & ASSOCIATES, P.C., Roy C. Gordon, Esq. For Defendant: LETITIA JAMES, ATTORNEY GENERAL, John Belford, Esq. Assistant Attorney General
Unpublished Opinion
For Claimant: ROY C. GORDON & ASSOCIATES, P.C., Roy C. Gordon, Esq.
For Defendant: LETITIA JAMES, ATTORNEY GENERAL, John Belford, Esq. Assistant Attorney General
LINDA K. MEJIAS-GLOVER, Judge
A trial on the sole issue of liability was conducted before this Court on May 22, 2024. Claimant called two witnesses to testify, and the Defendant did not call any witnesses.
The Claim alleges that on October 11, 2019, at approximately 2:00 pm, Claimant tripped and fell at the sidewalk leading from the parking lot north of Putnam Hall to the front entrance of Putnam Hall at the State University of New York at Stony Brook ("SBU"), specifically 10.5 feet southeast of where the end of the blacktop pathway and sidewalk begins (hereinafter, the "Claim"). Defendant, the State of New York, denies all allegations of negligence and asserts that the Claim fails to include an adequate description of the location of the incident and the condition alleged as a cause of the incident.
The parties stipulated to the following facts: Defendant, the State of New York, owns and maintains Putnam Hall and the sidewalks around it.
Claimant's Exhibits 1 through 6 and 8, as well as Defendant's Exhibits A and B were moved into evidence on consent of all parties at the time of trial. The Court took judicial notice of the Verified Claim, Verified Answer and Verified Bill of Particulars, which were moved into evidence, on consent of the parties, as Court Exhibits 1 through 3.
Relevant Testimony
Claimant, Margaret Ellis
Claimant testified that she was employed by Automatic Data Processing, Inc., at SB U.She testified that on October 11, 2019, she was at Putnam Hall at SBU for a meeting with a provider. She further testified that she had been at that location monthly prior to that date, and always took the same steps to enter and exit that location.
Claimant testified about the shoes she wore on the date of the incident (Claimant's Exhibit 8). She testified that she stepped onto the sidewalk with her left foot first then the right, and attempted to walk, but her left foot did not move. She testified that thereafter she fell, and the shoe was still in the curb, and it came off her foot. Claimant testified that prior to the incident, she had no issues with the shoes she was wearing the day of the accident.
Claimant testified, when looking at a close-up photograph of the crack in the area where she fell (Claimant's Exhibit 4), that there was cement and some debris in the crevice. She further testified, when looking at a faraway photograph of the crack in the area where she fell (Claimant's Exhibit 5), that there was white cement located in the area where she fell, however she was unaware how long it was there prior to her fall. She testified that after the incident, she reported her trip and fall to human resources and her manager.
On cross-examination, Claimant testified that she had been at Putnam Hall approximately eight times prior to the accident and was fairly familiar with the location. She testified that there were many people in and out of Putnam Hall and could not recall any complaints made to her about the condition or the location where the accident occurred, nor has she ever noticed the crack in the curb. Claimant went on to explain that to the right of the location where the accident occurred was "very messed up," and to avoid it she stepped on the specific location of the curb where she fell. She testified that she did not observe the crack in the curb as she was looking ahead and does not recall if she briefly looked down before stepping on the curb. Claimant testified that it was a clear day, and nothing was obstructing her view. She further testified that she was unaware if she observed the condition at this exact pinpoint, as the whole area of the curb was damaged.
She testified that she took photographs of the accident location for her project manager and this lawsuit. She further testified, however, that she did not measure the depth of the crack, nor does she recall how wide it was. Claimant testified that she did not file a police report or complaint with Stony Brook Police or SBU's Maintenance Department. Defendant's counsel directed Claimant to read paragraphs 4 and 5 of her Verified Bill of Particulars (hereinafter, "VBOP") (Court Exhibit 3) and she testified that she never measured the height of the crack, despite stating in her VBOP that she was "walking from the parking lot north of Putnam Hall upon the sidewalk from Putnam Hall in a south easterly direction when she caused to trip and fall due to the differential in elevation between two sidewalk slabs which was approximately between one and two inches ." Thereafter, she testified that the VBOP is consistent with how the accident occurred.
All quotations are taken from the Court's notes made during the proceedings or the audio recording of the trial.
On re-direct examination, Claimant testified that the accident occurred at a depression of the curb where the sidewalk and blacktop ended. She again testified that she reported the incident to her project manager, a SBU employee, who advised her that he was going to have the issue fixed, as well as file an incident report.
Connell Friel
Mr. Friel was called as an adverse witness over Defendant's objection. Mr. Friel testified that he has been employed by SBU for 15 years, managing maintenance and grounds, including repairs to sidewalks, etc. He testified that he maintains 50 buildings and has approximately 30 employees working under him to ensure that the grounds on SBU's campus are safe. He testified that prior to working at SBU, he was employed at New York Institute of Technology, serving under the same title he currently has at SBU, totaling 30 years of experience in the field. Mr. Friel testified that with respect to the accident location, he has been there several times and tries to visit each of the grounds on campus at least once a year. He testified that he did not observe that the accident location needed to be fixed nor did he receive any complaints, and if a complaint is not made about a specific location, fixing it is not deemed a "priority."
Where, as here, "an adverse party is called as a witness, it may be assumed that such adverse party is a hostile witness, and, in the discretion of the court, direct examination may assume the nature of cross-examination by the use of leading questions" (Ferri v Ferri. 60 A.D.3d 625 [2d Dept 2009] quoting Fox v Tedesco, 15 A.D.3d 538, 789 [2d Dept 2005]; see Jordan v Parrinello, 144 A.D.2d 540, 541 [2d Dept 1988]; Marzuillo v Isom, 277 A.D.2d 362, 716 [2d Dept 2000]). Moreover, the general rule prohibiting a party from impeaching his or her own witness does not preclude a hostile witness from being impeached by prior statements made either under oath or in writing (see CPLR 4514; Cammarota v Drake, 285 A.D.2d 919 [3d Dept 2001]; Jordan v Parrinello, 144 A.D.2d at 541).
Mr. Friel testified that repairs are dictated by "priority" and "funding," which he explained depends on what the repair is or what is task he is being asked to do. However, he testified that the number one priority is safety. He further testified that unsafe conditions are tripping hazards and are given priority in repairs. When shown Claimant's Exhibit 3, Mr. Friel testified that a crack in the curb is a tripping hazard. He testified that these types of repairs are mostly done "in house" by patching, although they have an outside contractor as well. Mr. Friel testified that it is his responsibility to ensure that any tripping hazards on campus are repaired.
Claimant's counsel had Mr. Friel read a hypothetical question and answer asked during his deposition:
Defendant objected to this hypothetical question being asked and read during the trial, arguing that all objections at depositions are reserved until trial, and hypothetical questions are prohibited from being asked to fact witnesses. Claimant opposed the objection arguing that his experience in the field allows him to answer the hypothetical question, regardless of not being deemed an expert. The general rule is that lay witnesses may testify only to facts and not to their opinions and conclusions drawn from the facts (People v Russell, 165 A.D.2d 327 [2d Dept 1991], affd 79 N.Y.2d 1024 [1992]). While the deposition witness herein is a lay witness, he is not an ordinary witness, as he has 30 years of experience managing maintenance and grounds. He is an employee of SBU whose supervision of 30 employees, background and experience has been explored in his respective depositions and at trial. As such, he had a unique perspective, and his testimony will be allowed to stand. As the trier of fact, the weight and the credibility of the evidence is at my discretion (Dominguez v Manhattan & Bronx Surface Tr. Operating Auth., 46 N.Y.2d 528 [1979]).
Question: if you had seen this area, [Claimant's Exh 2, p 15]specifically from the first diagonal line going up the picture to the third diagonal line where it meets the cement curb cut, would you consider that an area that needed to be repaired or replaced?
Answer: [i]t's close. Everything is a priority here. So it's a state institution and funding, so everything is prioritized. That's not terrible. We have a lot more areas that need attention. Certainty, if it was brought to our attention in a work order, we would repair it.
When shown Claimant's Exhibit 5, Mr. Friel testified that no accidents had occurred at the subject location five years prior to the subject accident. He testified when looking at the white cement, a "patch," he was unaware when that patch was done, nor could he locate a work order for that location if one was submitted. He went on to testify that he was required to check repairs when completed to ensure they were done correctly.
On cross-examination, he testified that he was advised about this accident in 2021, two years after the fact, despite being in his current position in 2019. He testified that because of the inspection of the accident location in 2021, he took immediate action and repaired the cement, as well as took measurements of the depth and width of the crack. When shown Defendant's Exhibit A, he testified that the crack in the cement in 2021 was 3 inches wide, and then when shown Defendant's Exhibit B, he testified that the crack is.5 inches deep.
Mr. Friel testified that after a review of the SBU records, there were no complaints of any accidents at the subject location, nor any record of repairs made, within five years prior to the accident. He testified that Putnam Hall houses a psychology clinic consisting of six to seven staff members and during Monday through Friday, people go in and out of the hall. He testified that maintenance workers visited Putnam Hall weekly to attend to planting beds and maintaining the parking lot. He testified that he instructed his workers to report any issues to any areas that need to be repaired and was unaware of any reports made.
Mr. Friel testified regarding Claimant's Exhibit 4 and the photographs he took two years after Claimant's Exhibit 4 was taken (Defendant's Exhibit A and B), as evidence that the crack in the curb could be the same size or even worse, but no more than 3 inches wide and.5 inches deep. Mr. Friel went on to testify that deciding to repair a location does not equate to that location being a dangerous condition. He testified that safety is the top priority. He testified that when concrete slabs are displaced, there is a greater tripping hazard.
On re-direct examination, Mr. Friel testified that when looking at Defendant's Exhibit B, the stone and cement in the crack do not portray the entire depth of the crack, as the ruler only goes down to the loose stone, therefore, there is more aggregate in this photograph, and there may be more than four pieces of cement aggregate and stone than shown in Claimant's Exhibit 4. When looking at Claimant's Exhibit 4, he testified that he is unaware how deep the crack is. He went on to testify that often times when people are walking from the parking lot to the building, people will step on a curb, rather than go up the handicap ramp.
At the conclusion of Mr. Friel's testimony, Defendant indicated that it would not call any witnesses. Claimant had no further witnesses and rested. Prior to resting, Defendant made an oral application to dismiss the Claim based upon Claimant's failure to make out a prima facie case for negligence. After oral argument, the Court reserved decision.
Defendant rested, the parties made closing statements, and decision was reserved.
Law and Analysis
A landowner has a duty to maintain its property in a reasonably safe condition, in view of all the circumstances (Basso v Miller, 40 N.Y.2d 233 [1976]). The State, as a landowner, is subject to the same rules governing private landowners (Preston v State of New York, 59 N.Y.2d 997 [1983]). The State, therefore, must act as a reasonable person to maintain its property in a reasonably safe condition, but it is not an insurer against any injury which might occur (Killeen v State of New York, 66 N.Y.2d 850 [1985]; Smith v State of New York, 260 A.D.2d 819 [3d Dept 1999]).
In order to prevail on this claim, therefore, claimant must establish by a fair preponderance of the credible evidence that a dangerous or defective condition existed, which the State either created or of which it had actual or constructive notice. "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 A.D.2d 798 [2d Dept 2003]).
A property owner may not be held liable in damages for trivial defects that do not constitute a trap or nuisance over which a pedestrian might merely stumble, stub their toes or trip (Zalkin v City of New York, 36 A.D.3d 801 [2d Dept 2007]). Whether or not a dangerous defective condition exists on the property of another so as to create liability depends upon the facts and circumstances of each case. The width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury are all factors to be taken into consideration when analyzing whether the defect was a dangerous condition so as to create liability (Trincere v County of Suffolk, 90 N.Y.2d 976, 978 [1997] [internal quotations and citations omitted]).
The issue before the Court, therefore, is whether the condition of the sidewalk, and in particular the height differential between the concrete slab, constituted a dangerous condition. Resolution of this issue is generally considered to be a question of fact that turns on the circumstances of the individual case (Lamarre v Rensselaer County Plaza Assoc., 303 A.D.2d 914 [3d Dept 2003]). There is no hard or fast rule that "a defect must be of a certain minimum height or depth in order to be actionable" (Trincere, 90 N.Y.2d at 977). Rather, the existence of a defective or dangerous condition must be determined by an examination of the particular facts and circumstances of each claim, taking into account the width, the depth, elevation and appearance of the condition.
Claimant has established that a dangerous condition existed on the sidewalk at the time of the accident. The uncontroverted testimony, as well as the photographic evidence, supports a finding that the crack in the curb in 2021, two years after the subject accident, could be the same size or even worse, but no more than 3 inches wide and.5 inches deep. Defendant conceded that it was aware that pedestrians used the sidewalk to go from the parking lot into Putnam Hall. Mr. Friel testified that the crack was a tripping hazard which would necessitate remedial action. Thus, the Court finds that the curb was not in a reasonably safe condition at the time of Claimant's accident, and that the defect was not trivial.
Claimant has also established constructive notice of the condition to Defendant. The evidence presented at trial clearly established that the subject curb was visible and apparent. Mr. Friel testified that the there were no repairs made to the subject location five years prior to the accident. Defendant conducted weekly inspections of Putnam Hall, including the area where Claimant had her accident. Thus, the Court finds that the evidence established, that in the exercise of reasonable care Defendant should have known of the dangerous condition and that the condition existed for a sufficient period of time such that Defendant should have remedied the condition within a reasonable time prior to Claimant's accident. The Court further finds that the crack in the curb was not trivial.
DECISION
The Court finds that Defendant's negligence was a substantial factor in the causation of this accident. Therefore, based upon the foregoing, the Court finds that Claimant has proven, by a preponderance of the credible evidence, her claim against Defendant in this action. However, it has already been established that the subject crack in the curb was visible and apparent. The accident occurred during daylight hours, with nothing obstructing her view, and Claimant who was wearing small "kitten" heels and walked this route 8 times before, admittedly failed to watch where she was walking. Consequently, Claimant's negligence was also a substantial factor in the causation of this accident.
Accordingly, the Court finds Defendant 60% liable and Claimant 40% liable for the happening of this accident.
In light of the foregoing, Defendant's oral application to dismiss is denied.
The Clerk of the Court is directed to enter interlocutory judgment in accordance herewith and a damages trial will be scheduled by the Court as soon as practicable.