Opinion
# 2016-044-012 Claim No. 122092
11-07-2016
ALYSON GRAHAM and BEN GRAHAM, her spouse v. THE STATE OF NEW YORK
LIPSITZ GREEN SCIME CAMBRIA, LLP BY: Richard P. Weisbeck, Jr., Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
Claim for injuries incurred when jogger tripped on state-owned bridge dismissed after trial; defect causing fall trivial in nature, readily apparent, and no proof of notice to defendant in any event.
Case information
| UID: | 2016-044-012 |
| Claimant(s): | ALYSON GRAHAM and BEN GRAHAM, her spouse |
| Claimant short name: | GRAHAM |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122092 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | LIPSITZ GREEN SCIME CAMBRIA, LLP BY: Richard P. Weisbeck, Jr., Esq., of counsel |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 7, 2016 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks to recover for injuries allegedly incurred when she tripped and fell on July 13, 2012 while jogging over the Centerway Bridge (the Bridge) in Corning, New York, a bridge owned and maintained by the New York State Department of Transportation (DOT), a department of defendant State of New York (defendant). Trial of the matter was bifurcated and held in the Binghamton District on September 7-8, 2016. This decision addresses only the issue of liability.
Claimant Ben Graham's claim is derivative in nature, and unless otherwise indicated or required by context, the term "claimant" shall refer solely to Alyson Graham.
At trial, claimant testified that she had traveled to Corning with her husband and children for a baseball tournament in which her son was playing. She and her sister went for a jog. Claimant was jogging regularly at that time. It was a sunny morning, dry, about 60 degrees. She was not familiar with Corning and this jogging route, so she was following her sister. They started to cross the Bridge toward the end of their run, jogging on the sidewalk, with the road to the left and the side rail to their right. On the downhill portion of the Bridge claimant's foot caught on a raised portion of a metal plate and she fell. She was looking forward as she ran, and noticed the plate as she approached it. However, she did not see an elevation difference that posed a tripping hazard. After she fell, she did see that there was no liquid or foreign object on the plate. She was wearing running shoes, had nothing in her hands and was doing nothing that would have caused her to fall.
On cross-examination, she acknowledged that New York State sidewalks have frequent dips and deviations. She emphatically stated that she did not slip on the plate, but instead caught her foot which cause her to fall.
Jacob Roloson, Assistant Regional Director of Operations for DOT's Region 6, testified that he inspected the Bridge on August 24, 2010 as part of his duties while in the job of bridge inspector. He said that as a general rule, DOT inspects bridges every two years. Roloson said that bridges have a designated "beginning" and "end." Claimant's route took her from the bridge beginning to the bridge end, and she fell on the sidewalk near the bridge end.
All quotes herein are taken from the Court's recording of the proceedings unless otherwise indicated.
Roloson said this was a "fairly long" bridge, with several spans, sidewalks, railings and at least two bridge joints. He said that bridge joints are designed to allow the bridge structure to move back and forth, with the joints opening and closing due to thermal expansion and contraction. On this bridge, the areas of sidewalk where the bridge joints are located are covered with a metal cover plate. Claimant fell in the immediate area of the cover plate at the bridge end.
Roloson stated that in preparation for his inspection he would have reviewed the previous inspection reports for the Bridge, so he would have been aware that a safety flag was issued as a result of the 2008 inspection report which indicated problems in the sidewalk at both ends of the bridge. The safety flag notes (with regard to the bridge end): "[t]he right sidewalk . . . is uneven and could be a tripping hazard. The concrete adjacent to the joints is spalled to 2 [inches] deep and the steel plate at the end abutment joint is bowed up." Roloson said that at the time of his inspection the tripping hazard at the bridge beginning had been addressed, but there had not been action taken at the bridge end to remedy the problem there. Accordingly, Roloson issued a superseding safety flag. His notes from the inspection which pertain to this problem state: "[t]he joint and the adjacent concrete are uneven and present a tripping hazard to pedestrians at the end right sidewalk." Roloson said that in order to issue a safety flag, his manual required that there be a deviation in elevation of two inches or greater. His field notes did not indicate whether he took a measurement. He said that if there was an elevation difference of less than two inches, he would have made an "unofficial phone call" to have the situation remedied. Roloson stated that he was aware that elevation changes of one-quarter to one-half inch on a walking surface required a bevel, and that a change greater than one-half inch would require a ramp.
Claimant's Exhibit 1.
Claimant's Exhibit 4.
On cross-examination, Roloson said that the begin side (the side toward the bridge beginning) of the cover plate where claimant fell is fastened or pinned with bolts that affix it to the bridge structure, rendering that side of it immobile. The end side of that cover plate is not fastened, as the plate needs to be able to move back and forth with the expansion/contraction of the bridge joints.
The safety flag that Roloson issued as a result of his 2010 bridge inspection contains a photograph of the sidewalk at the bridge end, with the bridge joint and cover plate depicted looking from bridge end to bridge beginning. After his inspection was complete, he would have looked at the photographs to make sure that the issue requiring the safety flag was depicted. Roloson said that the photograph indicates that the deviation in elevation was on the end, or unfastened, side of the cover plate (in other words, not the side of the plate where claimant fell). He again said that the bridge inspection manual requires that a safety flag be issued where deviations of greater than two inches exist.
On redirect examination, Roloson acknowledged that the safety flag did not state that remedial work should be limited to the moving end of the plate. He said that he would have wanted the maintenance crew to fix any issues they saw.
Roloson reviewed a picture of the sidewalk and cover plate taken after repairs had been performed. The photograph shows some slight chipping in the concrete at the begin (or pinned) side of the cover plate. Roloson said that if he had seen that condition when he inspected the bridge in 2010 he would not have issued a safety flag if the chipping and resulting elevation difference was less than two inches.
Defendant's Exhibit B.
Anthony DeNardo, a Bridge Repair Supervisor, testified. He said that he was a "working supervisor" who worked with the laborers on repairs. He had only a vague recollection of performing a repair on the cover plate, but said that the repair performed consisted of welding a piece of metal (which he described as a cover plate extension) to the moving end of the cover plate. He assumed his supervisor told him what manner of repair to perform. The extension was welded flush with the cover plate so that it was a straight piece of metal elevated from the sidewalk, rather than angling down toward the sidewalk.
On cross-examination, DeNardo said that if he had observed a one-inch deviation in elevation at the fixed side of the cover plate, he would have notified his supervisor that a repair was needed as a standard practice. When asked what constituted an acceptable deviation, he stated that his supervisors had instructed him that anything from one-half to one inch is a problem that would have to be addressed. Accordingly, if he had seen a one-half inch deviation at the fixed side of the cover plate he would have taken action.
Brian Mehlenbacher, an assistant bridge maintenance engineer for DOT, also testified for claimant. He said that DOT did not provide specific instruction on how to assess a tripping hazard on a bridge sidewalk. He was acting regional bridge maintenance engineer for Region 6 at the time the 2010 safety flag was issued. He did not have any independent recollection regarding receiving the flag or forwarding it on to the repair crew. He was not familiar with the American Society for Testing and Materials (ASTM) standards regarding walking surfaces. He had heard of the Americans with Disabilities Act (ADA), but was not familiar with any details pertinent to this situation.
Mehlenbacher had designed several bridges, but none that had sidewalks. He did not know who decided to affix the plate extension. He said the bridge repair supervisor told him that the plate extension was affixed to the plate, forming a ramp, in order to remedy the tripping hazard. Mehlenbacher did not go to the Bridge to inspect the repair. Mehlenbacher then sent an email to another DOT employee which stated in pertinent part that "[t]he . . . bridge crew placed and welded a steel plate to form a ramp thereby removing the tripping hazard on the sidewalk joint." The purpose of the email was to request that the safety flag be removed.
Claimant's Exhibit 9 at 2.
Upon reviewing a picture of the plate extension, Mehlenbacher said he would not describe the repair as forming a ramp. He was asked why he did not personally inspect the repair to make sure that the tripping hazard had been removed, and he responded that his workload made that impractical. He acknowledged that at his deposition he stated that he did not inspect the repair because it "only" involved a tripping hazard.
Claimant's Exhibit 21.
Gary Wright, a consultant with the firm of Bergman and Anthony and a former DOT employee for 36 years, testified as claimant's expert. He inspected the Bridge about a year after claimant's accident, taking photos and measurements, as well as reviewing the as-built drawings.
He testified regarding the detailed drawing of the Bridge's expansion joint, stating that the drawing shows that the cover plate is supposed to be inset into the concrete abutting another piece of metal which he characterized as an "end dam," both of which are designed to be flush with the sidewalk. The cover plate moves with the Bridge and joint toward and away from the end dam as expansion and contraction take place. He said the cover plate should never actually touch the end dam, and should never rise above it, and should at all times be flush with the concrete sidewalk. Wright stated that the cover plate had buckled and risen above the level of the concrete, and welding the extension to the moving end of the cover plate made the situation worse as the plate rode over the end dam. In his opinion, debris had built up over time causing the cover plate to buckle and rise.
Claimant's Exhibit 27B.
Wright conceded that defendant had patched the concrete at the pinned (immobile) end of the cover plate where claimant had tripped. However, he initially asserted that the concrete was still thirteen-sixteenths of an inch below the plate based on a photograph he took of the plate. That photograph, however, appears to show a difference in elevation of no more (and possibly less) than eleven- sixteenths of an inch. Further, the photo was taken from across the plate, so that the bottom part of the ruler is hidden, and the ruler itself is at an angle such that it is unclear what the actual measurement is. That photo is the only picture Wright took which was submitted into evidence (out of approximately 120 he took at the scene) which showed any measurement of the elevation differential at the side of the plate where claimant tripped.
Claimant's Exhibit 18.
Wright opined that both the ADA and ASTM standards require that changes in elevation on walking surfaces can have a blunt edge no greater than one-quarter inch, and an elevation differential greater than one-quarter inch must be brought to level or tapered. He opined that the work done by DeNardo's team to "repair" the cover plate had actually made the tripping hazard worse. He believed that if the differential between the fixed edge of the plate and the chipped concrete in front of it had been measured when DeNardo's team made the repair, the measurement would have violated both the ADA and ASTM standards. He also opined that the cover plate should have been removed and replaced to make the plate level with the sidewalk. He further noted that repairing the chipped concrete would have been easy.
On cross-examination, Wright acknowledged that he was not a licensed engineer, and had never worked in the bridge maintenance or inspection departments of DOT. He had never issued or removed a safety flag, as that authority was available only to licensed engineers. He said he took the photos submitted into evidence in August 2013, but took no notes at the time and was uncertain of the exact date. He stated that he took many more pictures of the extension plate and its height over the sidewalk because that was also a trip hazard, even though that was not where claimant tripped. Moreover, when he visited the scene, he was (somewhat perplexingly) not certain where she had tripped so he paid more attention to the extension plate because that was the bigger hazard.
He measured the elevation differential in only one spot on the fixed side of the plate because that was the place where the differential was greatest. He did not know how wide the sidewalk was. He agreed that at some point along the width of the sidewalk, the cover plate became essentially flush with the sidewalk. He agreed that the sidewalk was probably plowed to remove snow and that this could have caused the concrete to deteriorate over time.
See Claimant's Exhibit 26.
Claimant rested her case at the close of Wright's testimony. Defendant moved to dismiss the claim on the basis that claimant failed to make a prima facie case. Counsel pointed out that there is no bright-line rule regarding how much of an elevation difference is required before a situation is deemed negligent, and argued that this deviation is at the low end of the spectrum. Counsel noted that nothing obstructed claimant's view of the area, there was no evidence of any complaint or prior injury, and the safety flag indicating a tripping hazard actually pertained to the far side of the cover plate from where claimant fell. In response, claimant's counsel conceded that there is no bright-line rule, but argued that the area had been flagged twice, inadequately repaired, and then the repair was not inspected. He asserted that the law is clear that violation of standards is some evidence of negligence.
Douglas Lindaman, formerly an investigator for the Office of the Attorney General, testified on defendant's behalf. Lindaman took photographs at the site on December 19, 2012. The greatest deviation in elevation between the sidewalk and the cover plate was an area where the concrete was chipped, but the "lip tapered" as it got closer to the roadway, "basically to zero differential." Lindaman said he looked for the point at which the deviation was greatest and photographed his measurement showing that the lip of the cover plate was approximately one- half inch above the chipped out concrete depression.
Defendant's Exhibits B, C, D and E.
Defendant's Exhibits C and E.
John MacDowell, a resident engineer at DOT, also testified. MacDowell, a licensed engineer, had worked with three consulting engineering firms prior to employment at DOT. While at DOT, he also held the positions of bridge maintenance engineer and construction supervisor. He stated that in his role as bridge maintenance engineer, he was responsible for reviewing safety flags and assigning work to correct those issues. He and his assistant were also responsible for removing safety flags when the correction of the issue had been completed. He acknowledged that at times safety flags were not removed after repair was completed because he was overloaded.
MacDowell stated with regard to the expansion plate that in his opinion a one-inch height differential with a blunt edge on a walking surface was acceptable. He said that this opinion was based on his experience as a maintenance engineer, rather than on federal standards. He was familiar with the ADA requirements and their implementation, and was aware that the ADA standards required that new construction limit height differentials on walking surfaces to one-quarter inch or less, that the edge of any differential between one-quarter and one-half inch was required to be beveled, and that any edge greater than one-half inch required a ramp. However, he again emphasized that these requirements pertained only to new construction projects.
MacDowell was asked on cross-examination whether he had ever researched federal requirements in reaching his opinion that a one-inch differential on a walking surface was acceptable. He responded that DOT provided guidance regarding federal requirements in its design manual. He did not recall whether he told his staff that one inch or less of deviation was acceptable.
Kara Phillips, an associate landscape architect and 15-year employee at DOT, also testified. She stated that she conducts educational training throughout DOT regarding the ADA and its requirements, and advises and consults with DOT regions throughout the State regarding the ADA. She opined that the ADA requirement of no greater differential of one-half inch on walking surfaces is due to accessibility for the disabled rather than being a safety standard. She said that it is generally understood that the intent of the regulation is to provide "rollability" for wheelchairs. Phillips had visited the site and took measurements of the area. She stated that the 1991 guidelines required that sidewalks have a 36-inch wide accessible route.
On cross-examination, Phillips clarified that any structure altered prior to March 15, 2012 would have been required to comply with the 1991 ADA guidelines rather than the 2010 ADA standards. She noted that the ancillary benefit of helping people with disabilities move around safely is that it also helps people without disabilities move around more safely.
Defendant rested its case at the close of Phillips' testimony. Defendant's counsel again moved to dismiss claimant's claim on the basis that no prima facie case had been established. The Court reserved decision.
The State, as a landowner, has a duty of reasonable care in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233 [1976]; see also Clairmont v State of New York, 277 AD2d 767 [3d Dept 2000], lv denied 96 NY2d 704 [2001]). To ultimately prevail on this claim, claimant must establish by a preponderance of the credible evidence that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]). However, a landowner may not be held liable for negligent maintenance due to the existence of a trivial defect on a walkway which does not constitute a trap or a nuisance (Sullivan v State of New York, 276 AD2d 989 [3d Dept 2000]).
There is no hard and fast rule that "a defect must be of a certain minimum height or depth in order to be actionable" (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]). Instead, the question of whether a particular condition is dangerous depends on the specific circumstances of the case. The passage of the ADA did not change this premise. The purpose of the ADA was to address issues of discrimination for people with accessibility issues. It does not set safety standards nor does it alter the scope of the duty imposed by common-law negligence principles (see Lugo v St. Nicholas Assoc., 18 AD3d 341, 342 [1st Dept 2005]; Henning v State of New York, UID No. 2010-018-151 [Ct Cl, Fitzpatrick, J., Dec. 7, 2010]).
The pictures taken by the Attorney General's investigator clearly show the elevation differential to be one-half inch. Conversely, those taken by claimant's expert are absolutely inadequate to show the condition which allegedly caused claimant's injury. His photograph of his "measurement" of the spalled area of concrete does not show the concrete upon which the ruler rests, and was taken at an angle which makes it extremely difficult to ascertain the actual measurement. Moreover, Wright's focus on the edge of the cover plate where claimant did not trip is simply inexplicable.
Further, the pictures taken by emergency responders at the time of claimant's fall in 2012 appear to show that the spalling of the concrete in the area where claimant fell was not as severe as that shown in the pictures taken by Wright and Lindaman in 2013. Obviously the passage of time leads to further deterioration. In 2010, when DOT performed the "repair" of the cover plate, it is reasonable to assume that the condition was even less severe.
Claimant's Exhibits 10, 11 and 12. --------
Upon close review of all of the photographs (2012 and 2013), the Court finds that the difference in elevation between the relatively small chipped out area of the sidewalk and the fixed edge of the cover plate simply does not constitute a dangerous or defective condition under these circumstances. This was, in fact, a trivial defect (see Sullivan, 276 AD2d at 989). Claimant's counsel's attempt to focus on the accessibility requirements of the ADA and ASTM is no more than a red herring constructed to divert attention away from the relatively minor defect, as was the extensive testimony regarding the extension plate, a condition irrelevant to claimant's fall. The condition where claimant did fall, as depicted in the photographs, is no different than that seen on many normal sidewalks and which pedestrians should expect to encounter on a daily basis (and in fact that sidewalk is in substantially better condition than many New York State outdoor sidewalks). To hold otherwise would transform the State into an insurer. The condition was readily apparent to any observer. Finally, there was no evidence introduced which established that defendant had knowledge, actual or constructive, of the condition as it actually was at the time of claimant's accident. Based on the foregoing findings, the claim is dismissed. Any and all motions on which the Court may have previously reserved or which were not previously determined are hereby denied. Let judgment be entered accordingly.
November 7, 2016
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims