Opinion
# 2011-018-223 Claim No. 113419
07-27-2011
ROBERT S. JURAVICH v. STATE OF NEW YORK
Synopsis
Claimant accepted the risk of crossing a floor he knew to be slippery. An offer of assistance was given not knowing there was another route to the garage and no assurance of safe passage was provided. Claimant knew there was another way to get to the garage. Accordingly, the claim is DISMISSED. Case information
UID: 2011-018-223 Claimant(s): ROBERT S. JURAVICH Claimant short name: JURAVICH Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 113419 Motion number(s): Cross-motion number(s): Judge: DIANE L. FITZPATRICK CONBOY, McKAY, BACHMAN & KENDALL, LLP Claimant's attorney: By: David B. Geurtsen, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Michael R. O'Neill, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: July 27, 2011 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim alleges that the Defendant is liable in damages for injuries Claimant sustained when he slipped and fell in the Dulles State Office Building (hereinafter Dulles) in Watertown, New York, on March 14, 2005. The case was bifurcated and this Decision relates solely to liability.
The Dulles is an 11-story rectangular building with four elevators situated in its center, two on the east side and two on the west side of a small hallway. Access to offices would be on either end of the hallway between the elevator banks on each floor. The second floor has a mezzanine area overlooking the first floor and a security desk on the south side of the building. There is also an interior walkway which connects the building to the parking garage beyond the security desk. At least 200 people working in the building use the walkway for ingress and egress to the garage on workdays. The elevators and hallway are directly in front of the security desk. At the opposite end of the hallway are the offices of the Building Superintendent. The main entrance is on the ground floor, and the garage is also accessible at that level from outside the building by walking around the block.
The State contracted with DOHL Development Corporation (DOHL) to strip and finish the floors in the Dulles. Prior to the start date, Hollis Crowe, DOHL's Janitorial Manager, and Kenneth Netto, the State Operation Coordinator for the Dulles, walked through the building and discussed how the job would proceed. Both Mr. Crowe and Mr. Netto testified at trial and each had a slightly different recollection of their conversation during this pre-bid walkthrough. Mr. Crowe recognized it would be difficult to block off the elevator areas and the State did not give DOHL the authority or means to lock the elevators on the floor where they were working. Mr. Crowe recalled that Mr. Netto said he would notify the tenants about the stripping and finishing work and would advise them not to exit the elevators on the floor where the work was being done. Mr. Netto recalled telling Mr. Crowe that the building would make announcements and send emails notifying the tenants, but the contractor was to place caution signs where the work was being done so people could see them. Yellow sandwich-board warning signs were to be placed around the work area. Mr. Netto said they used the signs regularly when the floors in the building were wet or slippery. Both men agreed that the chemicals used to strip the floors made the floors slippery. On March 14, 2005, DOHL employees began work on the second floor by applying a stripping compound to the hallway in front of the elevators on the second floor. The exact time the work started is uncertain, but it was around 5:00 p.m.
Mr. James MacFarland's deposition was received into evidence.Mr. MacFarland was an employee with the Office of Children's Services and had worked in the Dulles Office Building for 17 years on March 14, 2005. He testified that about 6:00 p.m. that day, he was heading for the garage, and took the eastside elevators to the second floor. As he exited and turned left, he saw yellow caution signs and could see the floor was wet. He did not recall receiving any notification of work being performed in the building that day. One of the workers warned him the floor was slippery and he noted that the floor had a glistening, wet appearance. He continued toward the garage walkway. After taking four or five steps, he slipped and fell but was uninjured. The security guard assisted him and completed an incident report.
Exhibit A.
Exhibit 1.
The security guard on duty that day, James Marquette, testified at trial that he witnessed Mr. MacFarland's fall at 5:50 p.m. He said Mr. MacFarland exited the elevators on the second floor and fell. He appeared to be uninjured but his clothing was soaked with the stripping compound. Mr. Marquette said Christopher Crabtree, a DOHL employee, also witnessed the fall.
After he completed the MacFarland incident report, Mr. Marquette left the security office to make his rounds. He testified that he could have locked the elevators so they would not stop on the second floor, but he was not instructed to do so that day.
Mr. Crowe was also on the second floor that day and said stripping compound had been applied in front of the elevators. He recalled one man had stopped to exit at the second floor before Claimant arrived, but changed his mind when Mr. Crowe told him the floor was slippery. Mr. Crowe did not see Mr. MacFarland fall. Unlike Mr. MacFarland, Mr. Crowe testified at trial that no caution signs were placed at that time but were set up after Claimant's fall. Mr. Crowe acknowledged it was his company's obligation to place the signs but he indicated they had forgotten to do so. Mr. Netto says he recalls seeing the caution signs before he left that day; Claimant and Mr. MacFarland saw them too. Despite Mr. Crowe's recollection, the Court finds yellow warning signs were in place that day before Claimant's fall.
On March 14, 2005, Claimant worked for the Development Authority of the North Countrywhich rented offices on the fourth floor of Dulles. He had worked at that location for 18 years. His scheduled work day was 8:30 a.m. to 5:00 p.m., but his position often required him to work later than 5:00 p.m., and some weekends. He had an assigned parking spot on the first level of the garage, close to the interior corridor on the second floor of Dulles.
This public benefit corporation was a tenant in the building. Claimant was not a State employee.
Claimant recalled he was in and out of the office during the day. He thinks he drove somewhere at lunch time then returned and parked in the garage. He walked to an afternoon meeting down the street returning via the first floor about 5:00 p.m. No one else was in his office when he returned. At no time that day had he heard any announcements about work being done in the building nor was he informed by any other means. He and the other workers in the building received an email from Mr. Netto about the floor stripping on March 15, 2005;the day after he fell.
Exhibit 4.
On the day of the accident, Claimant left work about 6:30 p.m., and took one of the elevators on the eastside to the second floor. He turned left and took a few steps toward the security desk when he observed two workers and a caution sign in the background not near the elevators. He thought the men were mopping the floor and because this was a common occurrence at that time of day, he didn't really pay attention to them. The men and the sign were a few feet into the mezzanine area, past the elevator hallway. As Claimant neared the end of the hallway he hesitated. Mr. Crowe approached him and said they were stripping the floors and it was slippery. Mr. Crowe recalled this conversation taking place while Claimant was still in the elevator car. Claimant's recollection was that he had walked to the end of the hallway and the location of his fall when he spoke with Mr. Crowe. Mr. Crowe had difficulty orienting himself with the photograph exhibits. He believed that he and Claimant fell just a few steps from the elevator.
Claimant told Mr. Crowe he had to get to his car in the parking garage. Mr. Crowe said Claimant could follow him and they would hug the wall.
Claimant marked the area where he had this conversation with a white "X" on Exhibit 9.
Claimant said Mr. Crowe was to his right and they both took a step or two and both then fell.Having a folder under his right arm, Claimant tried to break his fall with his left arm but his whole body hit the floor. He felt like his left shoulder was dislocated. Mr. Crowe helped Claimant get up. Claimant's clothes were wet from the material on the floor. Thereafter, Claimant continued along to the parking garage, drove the few blocks to his home and saw an orthopedic doctor the next morning. An incident/accident report was completed the next day.
Marked with a white circled "X" on Exhibit 9.
Exhibit 2.
When Claimant was asked about taking a different route to the garage, he said he considered that possibility but noted that the security guard was not at the desk. Since it was after normal business hours, Claimant thought "most likely"the overhead doors to the garage would be closed, preventing him from accessing the garage at the street level without the assistance of the security guard. Claimant was the only witness who testified to this procedure. Both Mr. MacFarland and Mr. Netto indicated even after hours, the garage could be accessed from the street. Claimant testified that Mr. Crowe's offer of assistance influenced his decision to attempt to cross the slippery floor.
Transcript, p. 127, lines 8-15.
Mr. Netto indicated that there were two alternate routes to the garage. The garage could be accessed even at 6:30 p.m., by going to the street level entrance and walking outside to the garage. Another option was to go to the first floor and use the freight elevator to the loading dock on the second floor, which would then provide access to the garage hallway. No other witnesses, including Mr. Marquette, knew about the option to use the freight elevator, so the Court does not find this to be a viable alternative.
LAW
As a property owner, the State has the duty to maintain its property in a reasonably safe condition in view of all of the circumstances (Miller v State of New York, 62 NY2d 506; Preston v State of New York, 59 NY2d 997; Basso v Miller, 40 NY2d 233 [1976] [A landowner's duty includes providing a reasonably safe means of ingress and egress to a tenant]; Bernstein v El-Mar Painting & Decorating Co., 13 NY2d 1053 [1963]). The duty is based upon the perceived risks, the likelihood of harm, the potential seriousness of injury and the burden on the landowner of avoiding the risk (Preston, 59 NY2d 997).
It is Claimant's burden, however, to establish that the State breached its duty by either creating a dangerous condition or having actual or constructive notice of it and failing to correct it before it proximately caused Claimant's injuries (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).
The Claimant contends that the State breached its duty by creating a dangerous condition and failing to take appropriate action to prevent injury. Further, Claimant argues that the slippery floor was caused by the State's contractor and it was an employee of that contractor who Claimant relied upon to get him safely across the slippery floor. Claimant asserts the State is liable for the contractor's actions because it has a nondelegable duty to provide members of the public with reasonably safe premises. The State argues that cleaning or waxing a floor is not inherently dangerous and that it is not required to warn of a condition that is readily observable by the use of one's senses.
Undisputedly, and clearly evidenced by the three falls that evening, the chemicals used to strip the floor created a dangerous slipping hazard. The risk of falling during the stripping process was well known to both Mr. Crowe and Mr. Netto before the work even started. If there was any doubt, Mr. MacFarland's fall, less than 30 minutes before Claimant's fall, provided actual notice of the dangerous condition on the second floor that evening.
The State and DOHL, with knowledge of this risk, addressed this hazardous condition by placing signs warning of the risk of slipping. In addition, when Claimant exited the elevator, he was given a direct verbal warning from Mr. Crowe that the floors were being stripped and were slippery. This provided Claimant with actual notice of the risk of slipping on this floor. Although Claimant was advised of the risk, this does not end the analysis. After Claimant advised Mr. Crowe that he was trying to get to the garage to get his car, Mr. Crowe told Claimant "I can try to help you across to the other side."The question is raised whether Mr. Crowe's words and actions negligently caused Claimant's justifiable reliance to continue across the slippery floor to the parking garage (see generally Heard v City of New York, 82 NY2d 66, 71-72 [1993]). If Claimant justifiably relied, may the State be held vicariously liable for the negligent actions of the employee of the independent contractor?(See generally Bernstein v El-Mar Painting & Decorating Co., 13 NY2d 1053 [1963]; Backiel v Citibank, 299 AD2d 504 [2d Dept 2002]).
Transcript, p. 44, lines 22-25.
There was no evidence that Mr. Crowe and DOHL were not independent contractors and were instead employees of the State.
Although Claimant argues Mr. Crowe could have just told Claimant to find another way to the parking garage, the issue isn't that Mr. Crowe could have prevented Claimant from proceeding any further, but rather whether Mr. Crowe's words and actions proximately caused Claimant's fall by inducing reliance (Heard, 82 NY2d at 72).
Here, the Court finds Mr. Crowe's words and actions do not support a finding of Claimant's justifiable reliance that despite the slippery floor, he could safely access the garage from the second floor. Mr. Crowe indicated only that he would try to help Claimant get to the garage by "hug[ging] the wall." Claimant was also well aware the floors were slippery and Mr. Crowe provided no assurance of safety.
A casual response given informally does not stand on the same legal footing as a deliberate representation for purposes of determining whether an action in negligence has been established (Glanzer v Shepard, 233 NY 236, 241). As the Court of Appeals stated clearly in Heard v City of New York, 82 NY2d 66, the key is the reasonableness of both parties' conduct. Here, Mr. Crowe's offer of assistance was given not knowing there was another route to the garage and he provided no assurance of safe passage. Claimant knew there was another way to get to the garage but, understandably after a long day of work, wanted to use the most expedient route. Instead, he accepted the risk of crossing a floor he knew to be slippery.
The Court finds the circumstances here are unlike the case of Bernstein, 13 NY2d 1053, relied upon by Claimant. In that case, a tenant of a building upon returning home could not enter the building through the front entrance because painters hired by the owner had constructed scaffold blocking it. The painters told the plaintiff in that case that to access the building he would have to walk up the steps of the adjoining house and step on the scaffold, which he did only to have the scaffold pull away from the building causing him to fall. The assurances given to the plaintiff in Bernstein v El-Mar Painting & Decorating Co. (13 NY2d 1053) were unequivocal. Plaintiff was told that using the scaffold to gain entry into the building was "perfectly safe" and it was the only manner of ingress to plaintiff's abode. The facts here do not support such reliance.
Based upon the foregoing, the Court finds the claim must be DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
July 27, 2011
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims