Opinion
# 2012-032-002 Claim No. 115605
03-16-2012
WEBER v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2012-032-002 ROSE WEBER, an infant under the age of fourteen (14) by her Claimant(s): mother and natural guardian, MIRIAM WEBER, and MIRIAM WEBER, individually Claimant short WEBER name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) Caption amended to reflect the properly named defendant. : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115605 Motion number(s): Cross-motion number(s): Judge: JUDITH A. HARD Law Office of Aron S. Wolf, Esq. Claimant's By: Aron S. Wolf, Esq. attorney: Law Office of Daniel W. Coffey By: Daniel W. Coffey, Esq. Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Glenn C. King, Assistant Attorney General, Of Counsel Third-party defendant's attorney: Signature date: March 16, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision FACTS
This claim seeks damages for the alleged negligence of defendant after the infant claimant, Rose Weber ("infant claimant"), was injured when her mother, Miriam Weber ("claimant"), who was holding the infant claimant, was caused to trip and fall at Belleayre Mountain on August 6, 2006. The claim was bifurcated and this Decision addresses the issue of liability.
At trial, claimant testified that August 6, 2006 was a nice summer day. At approximately 3:00 P.M. on said day, claimant and her husband Joel Weber took the chairlift up Belleayre Mountain to enjoy the view. Claimant was holding her daughter Rose, who was eight months old at the time. Her husband boarded the chairlift first and claimant sat next to him. When they reached the top of the mountain, claimant raised the restraint bar. She testified that the attendant, located at the exit of the chairlift, was yelling for them to quickly disembark, but the chairlift did not stop. Carrying her daughter on her hip and walking "as quickly as I was able to" (T:23), claimant's "foot got caught in something and I tripped" (T:23). The chairlift did not stop or slow down as they reached the top of the mountain. Claimant testified that it was "not many" steps from the chairlift to where she fell (T:26). She marked Exhibit 8-A as the place of her fall. It showed a chip of wood missing from a plank on a small ramp to a wooden deck (Exhibits 8A-C). Claimant testified that she fell to her knees and her daughter's forehead hit the lower rail of the railing around the deck, which claimant marked on Exhibit 8B. Claimant testified that her daughter's head swelled and bled. She testified that two weeks after the accident she went back to take photographs of the scene because she knew she had stubbed her toe "somewhere" (T:37/Exhibit 1A). Claimant testified that she was wearing flat shoes and her contact lenses on that day. On cross-examination, claimant testified that she did not see what caused her to fall on the day of the accident.
Mr. Joel Weber testified that he entered the chairlift first so his wife would be the first to exit the chairlift. As they approached the top of the mountain, he testified that two people were screaming at them to hurry off the chairlift (T:46). He was behind his wife when she fell. Although he saw his wife fall, he did not see his wife's foot get caught in the chip in the plank as seen in Exhibit 1A.
Parts of Mr. Weber's and Mr. Welz's testimonies came across as a scripted narrative.
Mr. Joel Welz, claimant's brother, and his wife Hindi Bernat testified that they were in the chair behind the Webers on the chairlift. Mr. Welz testified that he was ten feet behind his sister after they exited the chairlift. He did not see his sister fall. Ms. Bernat testified that she and her husband were right behind the Webers on the chairlift. They were just exiting the chairlift when Mrs. Weber fell. It appeared to her that Mrs. Weber tripped "over something" (T:67-68). After the fall, Ms. Bernat observed the chip in a wood plank which was the area in which Mrs. Weber tripped. On cross-examination, Ms. Bernat wavered from her direct testimony admitting that it was possible that there was an empty chair between them. She testified that she saw Mrs. Weber trip in the area as indicated on Exhibit 9B, but she did not see her foot actually go into the crack in the wood (T:75).
Stuart Morrison testified as an expert on behalf of claimant. Although he did not visit the accident site, he reviewed photographs, deposition transcripts, operation manuals and code books, and opined that there was some physical damage to the walkway that would have presented a tripping hazard (T:89). Looking at the photographs, he estimated to a degree of reasonable certainty that the area where the wood was missing was one-quarter to one-half inch high and two inches long (T:91, 97). He opined that this was a violation of §302.3 of the Property Maintenance Code of New York that states that "[a]ll... walkways...shall be kept in a proper state of repair, and maintained free from hazardous conditions." (Court Exhibit 1). He opined that someone wearing a flat shoe could get a toe stuck in such irregularity (T:97). He estimated that the area from the plank from which Mrs. Weber allegedly tripped to the rail where the infant struck her head, was approximately five feet in length (T:103). He admitted on cross-examination, that §302.3 of the Property Maintenance Code of New York is very vague in that it does not define a hazard.
Mr. Morrison specializes in failure analysis engineering for his company, Morrison Engineering. He holds a Bachelor's Degree in Mechanical Engineering from the University of Rochester and is a licensed professional engineer in New York State (Exhibit 15).
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Mr. Roy Searle testified on behalf of defendant that he was employed as a lift operator on August 6, 2006 at Belleayre Mountain. He worked the switch at the top of the mountain that could slow down or stop the chairlift if it looked like people were having trouble. Exhibit 8 shows Mr. Searle standing next to where claimant allegedly fell. The summer speed of the chairlift was slower than the winter speed to enable people to walk off the lift. In the summertime, every other chair was occupied. He witnessed claimant get off the chairlift, "trot or walk faster", stub her toe and fall (T:115). Mr. Searle marked Exhibit 8C as the place where claimant fell which was located before the place that claimant indicated. He testified that he stopped the lift when she fell and called to the bottom of the mountain to get security and first aid. He had never seen anyone fall in that area before this incident (T:122). On cross-examination, Mr. Searle testified that Mrs. Weber was holding Rose in a knapsack in the front of her and that the infant's head never struck the railing as indicated by the Webers. Mr. Searle did not witness any blood after the accident. He did not slow or stop the chairlift as Mrs. Weber was coming up the mountain.
Mr. Robert Mansheffer testified on behalf of defendant that he was employed as a ski lift operator at Belleayre Mountain on August 6, 2006. He had been working there for five years. On that day, he was unloading people from the chairlift at the top of the mountain. His job was to assist people off the chair by helping to raise the restraint bar, hold the chair as they get off, and offer his hand for assistance in doing so. He testified that the operator would slow or stop the chairlift if a child was on board (T:153). They generally load every other chair to go up the mountain. He did not instruct anyone to hurry off the chairlift that day. He did not see Mrs. Weber or anyone else ever fall there. He did not remember if Mr. Welz and Ms. Bernat were behind the Webers that day.
LAW AND DISCUSSION
In order to sustain a claim for liability against the State, this Court must consider whether the State's alleged negligence arose out of a governmental rather than a proprietary activity (see Sebastian v State of New York, 93 NY2d 790 [1999]). The Court determines that the negligence alleged herein arose out of the performance of a proprietary activity, specifically the maintenance of a skiing facility. Therefore, defendant is not entitled to the immunity shield.
The State has a duty as a landowner, to maintain its premises in a reasonably safe condition (Basso v Miller, 40 NY2d 233 [1976 ]). The existence of a dangerous and defective condition depends on the peculiar facts and circumstances of a particular case. "It is well settled that ' "[t]he owner of a public passageway may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his [or her] toes, or trip over a raised projection" ' (Smith v Wilerdam Prop., Inc., 50 AD3d 1349, 1349 [3d Dept 2008]; citing Guerrieri v Summa, 193 AD2d 647, 647 [2d Dept 1993]; quoting Liebl v Metropolitan Jockey Club, 10 AD2d 1006, 1006 [2d Dept 1960]). In determining whether a defect is trivial, it is appropriate to examine "the facts presented 'including the width, depth, elevation, irregularity, and appearance of the defect along with the time, place and circumstance of the injury' " (Outlaw v Citibank, N.A., 35 AD3d 564 [2d Dept 2006]; quoting Sanna v Wal-Mart Stores, 271 AD2d 595, 595 [2d Dept 2000]; see Trincere v County of Suffolk, 90 NY2d 976 [1997]).
Mr. Morrison, who did not visit the accident site, found the alleged defect to be one-half inch deep and two inches long based upon his observation of photographs. The Court, after listening to the testimonies and examining the exhibits, finds that given the trivial size of the alleged defect, it was not a trap or a nuisance, particularly given claimant's testimony that August 6, 2006 was a nice summer day. Other Courts have found similar height differential defects as not actionable (one-quarter inch in Smith v Wilerdam Prop., Inc., 50 AD3d 1349 [3d Dept 2008]; one-half inch in Murray v City of New York, 15 AD3d 636 [2d Dept 2005]; five eighths to seven eighths of an inch in Trionfero v Vanderhorn, 6 AD3d 903 [3d Dept 2004]; seven eighths of an inch in Neumann v Senior Citizens Ctr., 273 AD2d 452 [2d Dept 2000]). The Court does not find the alleged defect to be a hazardous condition under the New York State Property Maintenance Code §302.3. Further, since the defect was trivial, defendant did not have the duty to warn by posting signs regarding the alleged defect (General Obligations Law § 18-103[10]). The Court agrees with defendant that Mr. Morrison's opinion, that a toe could get stuck within the irregularity of the plank, was speculative testimony. The Court gives no weight to this portion of his opinion. The Court credits the testimonies of Mr. Searle and Mr. Mansheffer that they were not urging the Webers to disembark the chairlift quickly. Contrary to claimant's argument, 12 NYCRR § 32-4.56(d) does not mandate that the chairlift be stopped when an infant is on board.
Even if the defect was considered nontrivial or a trap or a nuisance, claimant was unable to state with certainty what caused her to fall when the accident occurred. It was two weeks later, when she went back to the mountain to take photographs, that she saw the alleged defect. Neither her husband nor Mr. Welz saw what caused her to trip. It appeared to Mr. Welz that Mrs. Weber tripped "over something" (T:67-68) and only observed the chip in the plank after the fall. Further, claimants did not sufficiently prove that the non-stopping of the chairlift was causally related to the fall on the ramp. Moreover, claimant did not adequately explain how the infant claimant hit her head on a railing five feet away from the alleged defective plank.
While this Court is sympathetic to the injury allegedly suffered by the infant claimant, the Court, upon review of the documentary evidence, oral testimony and the observance of the demeanor of the witnesses, must dismiss the claim due to the failure to prove it by a preponderance of the credible evidence. All motions not heretofore addressed are denied.
Let judgment be entered accordingly.
March 16, 2012
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims