Opinion
# 2014-009-100 Claim No. 116651
06-19-2014
EDWIN COLE v. THE STATE OF NEW YORK
SUGARMAN LAW FIRM, LLP BY: Robert P. Dwyer, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General BY: Bonnie Gail Levy, Esq., Assistant Attorney General, Of Counsel.
Synopsis
Claimant's claim seeking damages for personal injuries in a slip and fall case at SUNY Upstate was dismissed based upon the Court's finding, following trial, that defendant did not have a reasonable amount of time to clean up a liquid spill after receiving notice of the dangerous condition.
Case information
| UID: | 2014-009-100 |
| Claimant(s): | EDWIN COLE |
| Claimant short name: | COLE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 116651 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | SUGARMAN LAW FIRM, LLP BY: Robert P. Dwyer, Esq., Of Counsel. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General BY: Bonnie Gail Levy, Esq., Assistant Attorney General, Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | June 19, 2014 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Edwin Cole seeks damages for personal injuries suffered by him when he slipped and fell on floor 6B of the State University of New York Upstate Medical Center (Upstate) on May 27, 2008. The trial of this claim was bifurcated, and therefore this decision relates solely to the issue of liability.
At trial, claimant testified on his behalf, and Julie Sunser, the "Charge Nurse" on the floor where the accident occurred, testified for the State. Additionally, a transcript of the deposition testimony of Mary Stephens, a patient at Upstate at the time, was received into evidence, as well as transcripts of the testimony of several Upstate employees, namely Stacey Barnett, Graciela Franklin, Brenda Larson, Debra Matt, Cathy Valentine, and Joanne Post. The Court notes that the transcripts of the deposition testimony of Mary Stephens and Debra Matt were introduced over the objection of the defendant, and the State was given the opportunity to raise objections in its posttrial brief to the receipt into evidence of all transcripts, either in whole or in part.
Claimant testified that he went to Upstate on May 27, 2008 to visit a friend, Mary Stephens, who was hospitalized at the time in room 6108 on floor 6B. He testified that he arrived between 5:00 p.m and 5:30 p.m. that day, during the dinner hour, and visited with her for approximately 45 minutes.
Claimant testified that when he was done with his visit, he began walking down the hallway in the opposite direction from which he came. He testified that when he was approximately eight to ten feet from the nursing station, he "slipped on something greasy," his feet went out from under him and he fell down, sliding another four to five feet before hitting a wall.
Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.
Claimant testified that he did not see any liquid on the floor before he fell, but immediately after he fell he smelled coffee on his clothes and that his shirt and slacks were soaking wet. Claimant testified that from his position on the floor immediately after he fell, he could see a liquid with a light brown color on the floor, and that it smelled like coffee.
Claimant further testified that four or five nurses immediately came to his aid, and checked his vital signs. He remained on the floor until a wheelchair arrived, and the nurses assisted him into the wheelchair and he was then transported to the emergency room for evaluation and treatment.
Claimant estimated that he was on the floor for approximately 20 minutes after his fall. During the time that he was on the floor he overheard nurses saying that coffee had been spilled earlier and that housekeeping had been notified but had not yet cleaned up the spill. Claimant, however, was unable to identify the nurses who were talking, and acknowledged that he did not know when the coffee was spilled, who spilled the coffee, or when housekeeping had been notified. Claimant emphasized that the color of the coffee blended into the brown tiles of the floor, and that he did not see any liquid prior to his fall.
Julie Sunser testified on behalf of the State at this trial. She testified that on the date of claimant's fall, she was the "Charge Nurse" on floor 6B where the accident occurred. She testified that between the hours of 5:00 p.m. to 7:00 p.m. on any day, the floor is very busy, as during this time dinner is being served, many visitors come to see patients, and employees and doctors change shifts. She testified that at some point in time during these hours, she was behind the nursing desk speaking with another nurse when she heard a "thump." She then ran down the hall and saw claimant on the floor, attempting to get up. Nurse Sunser testified that she did not see any liquid on the floor in the area where claimant had fallen, and that no one had reported to her that there had been a spill on the floor prior to his fall.
Nurse Sunser testified that she then investigated the circumstances of claimant's fall with other members of the staff who were present at the time, and that no one she spoke with acknowledged that they were aware of the spill prior to claimant's fall. She testified that during the course of her investigation, she was advised that a family member or visitor of a patient had spilled coffee, and noted that in her Report, although she did not include the name and contact information of that person (see Exhibit O). She also noted in this report that "staff was not informed" of the spill.
As indicated at the outset of this Decision, transcripts of the deposition testimony of several members of the nursing staff at Upstate were received into evidence, with the Court reserving to the State the opportunity to raise any objections to such testimony in its posttrial submission. The Court will summarize the deposition testimony that it considers relevant and pertinent to this Decision, and, if necessary, will address any objections made by the State to such testimony.
A transcript of the deposition testimony of Graciela Franklin was received into evidence (Exhibit S) with no objection by the State. Ms. Franklin testified that on the day of the accident, she was working on floor 6B at Upstate as a hospital clinical technician. She testified that she did not witness claimant's fall, but exited a patient's room shortly after the fall and saw claimant on the floor. Ms. Franklin testified that she did observe a liquid on the floor where claimant fell, but had no recollection as to the color of the liquid or the size of the spill.
Ms. Franklin also testified that Stacey Barnett, a hospital clinical technician, told her at this time that someone had spilled coffee on the floor, but that she did not know who spilled the coffee nor how long it had been spilled prior to claimant's fall.
Transcripts of the deposition testimony of nurses Brenda Larson and Joanne Post were received into evidence (Exhibits T and Y, respectively), but neither nurse witnessed the accident nor noticed any moisture or liquid on the floor where claimant fell.
The transcript of the deposition testimony of Debra Matt was introduced at trial (Exhibit U), with the Court reserving to the defendant the right to object to the introduction of such testimony in its posttrial submission.
At the time of this accident, Debra Matt was an RN Nurse Manager at Upstate, having been employed by Upstate for approximately 23.5 years, and her duties included the hiring and training of nurses at Upstate. Nurse Matt, however, was not present at the time that claimant fell, and defendant has objected to the use of her testimony, contending that it is irrelevant and prejudicial.
As a Nurse Manager involved in the training of nurses, however, Nurse Matt was qualified to provide testimony regarding the proper procedures to be followed by nursing staff in the event of a liquid spill on the floor. Therefore, her testimony in this regard is not only relevant, but admissible as well.
Nurse Matt testified that if the nursing staff is aware of a liquid spill, they are required to either clean that spill up or to immediately notify housekeeping to do the same. Additionally, if the spill was not to be cleaned up immediately, that nurse would be required to either place warning signs in the area of the spill or to remain near the spill to warn individuals of the wet floor.
Nurse Matt also testified that if the nursing staff was unaware of the spill prior to a person slipping and falling, a proper investigation would include the identification of the person responsible for the spill, and a statement from the person that he or she had not informed hospital staff prior to the fall.
The transcript of the deposition testimony of Cathy Valentine was received into evidence at trial (Exhibit X). Nurse Valentine, a registered nurse, testified that she was working on floor 6B on the night that claimant fell. Nurse Valentine confirmed that when an employee becomes aware of a spill, that employee should either immediately clean up the spill or notify housekeeping to do the same. She also indicated that there are "wet floor" signs available in the housekeeping closet which are available to warn individuals of a slippery or wet condition.
Nurse Valentine testified that she was behind the desk at the nursing station speaking with Nurse Julie Sunser at the time that claimant fell. She did not witness claimant falling, but heard a "thump" when he did, and immediately went to assist him.
Nurse Valentine further testified that she was not aware of the spill prior to claimant's fall, and that obviously she could not have been aware as to how long the spill had been on the floor before claimant fell. While caring for claimant, Nurse Valentine observed liquid on the floor in the area where he fell, and testified that it was tan in color, and that the color of the floor was a "dingy white."
While caring for claimant, Nurse Valentine was told by another staff member that nursing staff had been informed of the spill, and that a staff member was on the way to get towels to clean up the spill at the time that claimant fell. Although defendant, in its posttrial submission, objected to the introduction of this statement, the Court has considered such statement for the purpose of corroborating claimant's testimony to the same effect.
A transcript of the deposition testimony of Stacey Barnett was also received into evidence at trial, again subject to any objection raised by the State in its posttrial submission (Exhibit R). Ms. Barnett testified that on the day of claimant's fall, she was also working on floor 6B at Upstate as a clinical technician. Ms. Barnett testified in her deposition that she was standing near the nurses' station, by room 6116, when she witnessed claimant's slip and fall. She testified that the fall occurred during visiting hours when it was very busy and that there were a lot of people on the floor at the time.
Ms. Barnett also testified that immediately prior to claimant's fall, and while she was at the nurses' station, someone (she could not recall who this person was) mentioned that there was a spill on the floor. Although defendant objected to the Court's consideration of this testimony in its posttrial submission, the Court has considered such testimony to establish Ms. Barnett's "state of mind" at the time of the accident, i.e., that to her knowledge, she was aware of a spill on the floor prior to claimant's fall.
Ms. Barnett further testified that claimant fell immediately after she became aware of the spill, and that there was no time to even warn claimant of the spill, let alone time to clean up that spill prior to his fall.
Ms. Barnett also testified that after claimant fell, she did see the spill, which she testified was a light, dingy brown in color, and that the floor was a dingy, white color. She testified that she never spoke to Debra Matt regarding this accident.
A transcript of the deposition testimony of Mary Stephens was also received into evidence at trial (Exhibit Q), also reserving to defendant the right to object to the Court's consideration of such testimony.
Ms. Stephens was the patient that claimant was visiting at Upstate on the date of his fall. As a nonparty witness, the State objected to the use of her deposition testimony as direct evidence under CPLR § 3117 (a) (3), which permits the use of a nonparty deposition only under certain limited circumstances. As set forth in claimant's reply posttrial submission, apparently there was a misunderstanding between counsel regarding the extent to which claimant could rely upon the Stephens' deposition, as it was claimant's understanding that defendant's objection was limited to those portions of her testimony which relied upon hearsay. Apparently, based upon this misunderstanding, claimant did not call Mary Stephens as a witness, relying instead upon her deposition testimony. Based upon this apparent misunderstanding, the Court will accept and consider the Stephens' transcript. In doing so, however, the Court must also consider the objections made by the defendant as to those portions of her deposition testimony consisting of hearsay statements. Specifically, defendant objects to the testimony of Ms. Stephens regarding a conversation that she had with an unidentified man, who allegedly admitted to her that he had spilled the coffee and had notified the staff of such spill. The testimony of Ms. Stephens regarding this statement is classic hearsay. Claimant, however, asserts that the statements are admissible under one of the exceptions to the hearsay rule. However, the statements clearly do not constitute an admission against interest, since the unidentified individual is not a party or an agent to the party of this claim (Cox v State of New York, 3 NY2d 693 [1958]). Furthermore, the Court finds that the statements do not qualify as a declaration against interest made by a nonparty, since claimant failed to establish that such statements were against the pecuniary, proprietary, or penal interests of the declarant, or that there was no probable motive of the declarant, or the person indicating what the declarant said, to misrepresent the facts (Basile v Huntington Util. Fuel Corp., 60 AD2d 616 [2d Dept 1977]). Additionally, it is apparent that Ms. Stephens had a close relationship with claimant, providing her with a strong motivation to fabricate her story on his behalf (see People v Shortridge, 65 NY2d 309 [1985]).
Accordingly, this Court has not considered any deposition testimony from Ms. Stephens referring to the unnamed individual who allegedly spilled the coffee on which claimant slipped and fell, or any statements from that unnamed individual that he allegedly provided notice to the State of the spill.
As a result, the testimony of Ms. Stephens considered herein is limited to confirming that she was the patient with whom claimant was visiting at Upstate on the date that he fell. She acknowledged that she did not witness his fall, but did observe claimant on the floor immediately thereafter. She also testified that she observed a liquid on the floor in the area where claimant fell.
DISCUSSION
When the State acts as a landlord, it has a duty to maintain its premises in a reasonably safe condition in view of all the circumstances (Basso v Miller, 40 NY2d 233 [1976]; Miller v State of New York, 62 NY2d 506 [1984]; Preston v State of New York, 59 NY2d 997 [1983]). The State, however, is not an insurer of pedestrians on the premises of its institutions, and negligence cannot be inferred solely from the fact that an accident occurred (Mochen v State of New York, 57 AD2d 719 [4th Dept 1977]; Bowers v State of New York, 241 AD2d 760 [3d Dept 1997]). Furthermore, an individual has a duty to see and be aware of his or her surroundings, and to use reasonable care to avoid accidents (Weigand v United Traction Co., 221 NY 39 [1917]).
When a pedestrian is injured in a slip and fall accident, the claimant is required to establish that a dangerous condition existed; that defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and that such a condition was a substantial factor in the events which caused the injury to claimant (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).
Based upon the testimony, the Court's consideration of the admissible deposition testimony, and exhibits, the Court finds and determines that on May 27, 2008, claimant slipped and fell on coffee which had been spilled on floor 6B at Upstate, where he had been visiting a patient. The Court further finds that the color of this coffee spill was light brown, similar in color to the off-white color of floor 6B at that time. The Court further finds that the coffee spill was not caused by any employee of the State. The Court also finds and determines that this spill created a dangerous condition on floor 6B.
In order to establish liability, claimant is still required to establish that the State had either actual or constructive notice of this spill, and if so, that the State had a reasonable opportunity to either correct the condition or, at a minimum, provide adequate warning to those individuals traversing floor 6B.
Based primarily upon the testimony of Julie Sunser, together with the investigation which she undertook following this accident (see Exhibit O), the State contends that it had not received actual notice of the dangerous condition prior to claimant's fall. As set forth in the various depositions of Cathy Valentine, Brenda Larson, and Graciela Franklin as well as the testimony of Nurse Sunser, all of these nurses indicate that they were unaware of the coffee spill prior to claimant's fall.
However, not only did claimant state that he heard an unknown individual acknowledge awareness of the spill shortly after he fell, Stacey Barnett corroborated claimant's testimony and acknowledged that she had received notice of the spill almost simultaneously with claimant's fall.
The Court, therefore, finds and concludes that certain employees of the State had notice of the spill immediately prior to claimant's slip and fall, even though such notice was not reflected in the investigation report completed by Nurse Sunser.
However, even after receiving notice, whether actual or constructive, a landowner must be afforded a reasonable amount of time to remedy the dangerous condition, and can only be held liable upon a failure to do so in a timely manner (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Anderson v Klein's Foods, 73 NY2d 835 [1988]).
In this particular matter, claimant had no knowledge as to when nursing staff (or other staff) had been notified of the coffee spill. Ms. Barnett, the only employee who acknowledged hearing of the spill prior to claimant's fall, testified that she heard of the spill almost simultaneously with claimant's fall, and that there had been no time to take any corrective action or even warn claimant of the spill prior to his fall. Considering the testimony, the Court must determine that it would be mere speculation to find that the spill had been present for such an appreciable period of time that would have afforded the defendant an opportunity to address the spill or even to post adequate warnings. The Court therefore finds that claimant failed to establish that the defendant had a reasonable amount of time, after receiving notice, to clean up the spill, or even notify pedestrians of the dangerous condition. Regrettably, even though claimant sustained injuries in his fall, the State cannot be held liable for those injuries in this matter.
Accordingly, Claim No. 116651 is hereby dismissed.
Any motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
June 19, 2014
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims