Opinion
# 2020-040-038 Claim No. 124554
11-13-2020
KATHERINE W. McDANIEL v. THE STATE OF NEW YORK
CONWAY & KIRBY, PLLC By: Peter A. McDaniel, Esq. LETITIA JAMES Attorney General of the State of New York By: Christina Calabrese, Esq., AAG
Synopsis
Following Trial, Court finds Claimant failed to establish by a preponderance of the credible evidence that State was negligent regarding Claimant's trip and fall at the Empire State Plaza.
Case information
| UID: | 2020-040-038 |
| Claimant(s): | KATHERINE W. McDANIEL |
| Claimant short name: | McDANIEL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124554 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | CONWAY & KIRBY, PLLC By: Peter A. McDaniel, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Christina Calabrese, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | November 13, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Katherine W. McDaniel, failed to establish by a preponderance of the credible evidence that the State of New York was negligent in connection with personal injuries she sustained on June 19, 2013 in a trip-and-fall accident at the Empire State Plaza in Albany, New York (hereinafter, "ESP" or "The Plaza"). A bifurcated trial, addressing liability issues only, was held on September 25, 2018 and February 25, 2020 at the Court of Claims in Albany. Claimant called two witnesses: Claimant and her expert witness Frederick G. Bremer. Defendant also called two witnesses, Michael Convertino and Thomas Hotte, both employees of the New York State Office of General Services (hereinafter, "OGS"). Thereafter, the parties requested and were granted additional time to order a transcript and then submit post-trial memoranda.
FACTS
Claimant testified that June 19, 2013 was a nice, clear day in Albany, New York. On that day, at approximately 11:40 a.m., the retired registered nurse was on her way to her son's swearing-in ceremony as a lawyer at 12:00 p.m. (Tr., pp. 36-37, 39, 68). She stated that she and her family (son, daughter-in-law, and two grandchildren) arrived in downtown Albany by automobile and parked in a lot adjacent to a side street (id., pp. 38-39). They entered the ESP by walking down a staircase (id., pp. 40-41, Ex. 7). She stated it was her first time visiting the Plaza (id., p. 49). Looking at the photograph, marked in evidence as Exhibit 9, Claimant stated that the photo reasonably represents the way the area looked on the day of her accident (id., p. 41). She was walking on the sidewalk, toward the tree on the left side of the photo. She was wearing loafer-type shoes, because she always wears flat heels, and she also was wearing her eyeglasses and was carrying her pocketbook (id., pp. 38, 39, 42). Ms. McDaniel was not aware of any warning signs in the area where she fell (id., p. 42). At the time of her fall, Claimant was walking alone, her son and granddaughter were walking in front of her, and her daughter-in-law and grandson were behind her. She was following her son and granddaughter (id., pp. 42, 44).
Claimant placed a green circle with an arrow on a copy of the photograph that is Exhibit 9 to represent where she tripped and fell and that photo was accepted into evidence as Exhibit 9A (Tr., pp. 45-47). She also placed two green slashes to indicate the direction she walked to a bench to sit down after she fell (id.). Claimant testified that, as she was walking, she was looking forward, and was not looking at the ground, because she was following her son and granddaughter. She did not notice the raised cement until after she fell (id., pp. 48-49). She said she tripped when her left foot hit the ledge of the cement (id., p. 49). She said that there was shade from a tree covering the walkway and Exhibit 9A shows similar shade conditions (id.). Ms. McDaniel did not believe, however, that her vision was hampered by the shade, and she could see ahead in the direction she was proceeding (id., p. 86). After she fell, she also noticed little breaks, or chips, in the cement (id., p. 52). Claimant stated that Exhibit 6A accurately shows the area where she fell as it was on June 19, 2013. She testified that she did not take the picture and she does not know when it was taken (id., pp. 55-56). Claimant marked Exhibit 6A with a circle and an arrow pointing to the left to indicate the area where the cement was chipped. The vertical slash with the arrow is a slanted and worn section of cement (id., pp. 53-55; see Ex. 6A). Claimant also placed a blue arrow on Exhibit 10A to show the area where she fell (id., p. 61). After she fell, her family wanted her to go to the hospital immediately, however, she refused, because she had driven four hours from her home to see her son sworn in as a lawyer and she was not going to miss it (id., p. 50).
Claimant thought that, after she fell, her daughter-in-law helped her to her feet, and they went and sat on a bench. She further believed, but could not recall, that they then walked back and looked at the spot where Claimant fell. After that, they walked the rest of the way through the Plaza, to the building where the ceremony was being held. They arrived in time for the ceremony (Tr., pp. 62-63).
Upon cross-examination, Claimant agreed that all the other members of her family walked through the area where she fell without tripping (Tr., p. 77). She also agreed that her son was a "good bunch ahead of her," however, she did not believe she was walking faster than normal, but rather, at her normal gait (id., p. 78). However, at her deposition conducted on January 15, 2016, she did say that she probably was walking a little faster than normal, in order to keep up (id., p. 79; see Ex. F, p. 22). She denied, however, that speed affected her balance or stability (id., p. 93). Claimant also agreed that, as she was walking, she was looking straight ahead at her son, so she could see which way he was going and could follow him (id., pp. 80-81). She agreed that she had no idea where she was going, she was just following her son (id., pp. 85-86). Looking at the photographic exhibits, Claimant stated that she did not know the exact spot where she tripped, but it was in the area between the circle she drew on Exhibit 6A and the arrows she drew on Exhibit 10-A (id., pp. 87-88). Claimant did not know the elevation difference of the area depicted in the photograph that is Exhibit 5. She did not measure it and did not know if anyone else did. She also did not know how long the area depicted in Exhibit 5 was in that condition, as it was her first time visiting the Plaza (id., pp. 88-89). Claimant also testified that she did not report the accident to the New York State Police or OGS (id., p. 81).
Mr. Bremer testified that he has been a licensed and registered architect in New York State for 35 years and holds a Bachelor of Science degree (Tr., pp. 117, 147, 148). Mr. Bremer stated that he reviewed the New York State Property Maintenance Code (Ex. H) and the American Society of Testing and Materials (hereinafter, "ASTM") standards in connection with Claimant's case (id., p. 149). He said that the New York State Property Maintenance Code does not define what constitutes a danger or hazard, but that, where terms are not defined, it states that they have the "ordinary accepted meaning," such as the context implies (id., pp. 151, 154-155; see Ex. H, p. 5 [New York State Property Maintenance Code § 201.4]). Mr. Bremer further stated that the ASTM standards recite that any differential over a quarter inch is a "trip hazard" (Tr., p. 152) and that the sidewalk flag Claimant tripped on was raised about 1¼ inches, but the height varied across the flag's edge (id., p. 152). Looking at Exhibit A, a photograph of the area where Claimant fell that was marked by Claimant at her deposition with an "x" and her initials to indicate where she fell, Mr. Bremer testified that as one looks at the photo, the edge of the sidewalk flag was raised 1 inch on the left, 1¼ inches in the middle, and 1½ inches on the right (id., p. 153). He agreed that, based upon his investigation, the area where Claimant tripped was between 1-1¼ inches high (id., pp. 153-154).
The witness testified that a landowner presented with a raised sidewalk flag, as in this case, has several options to remediate the condition. The first is to remove the sidewalk, redesign the sidewalk to eliminate the hazard, and replace it. Second, he stated that, if that option was not feasible, then the owner could grind the surfaces flush, bevel them, or apply a patch of concrete, called parging. If the owner was unable to perform either of the above remedies, the third option would be to place flags to warn people of the defect (Tr., pp. 156-157). He investigated Claimant's fall and stated that the "evidence shows that there was a raised sidewalk flag, an edge of a sidewalk flag that created a hazardous condition," and that the condition occurred over an extended period of time (id., pp. 151, 160). Mr. Bremer stated that the condition of the sidewalk should have been discovered through a reasonable inspection process (id., p. 160). He also stated that, based upon a work order, Defendant was aware of the condition for almost a week before Claimant fell (id.). He further stated that there were mature trees in the area of Claimant's accident and that there was a reasonable likelihood that some of the shifting of the sidewalk flag occurred because of expanding root systems in combination with freeze/thaw cycles (id., p. 162). Mr. Bremer also said that the shade in the area might lessen the contrast between the adjoining surfaces and obscure the condition of the sidewalk to some extent (id., p. 173). The witness reviewed Exhibit 5 and stated that the debris on the edge of the raised lip of the sidewalk flag showed that there was a depression between the two sidewalk flags, however, the debris did not cause Claimant to trip (id., pp. 173-174). The witness opined, within a reasonable degree of architectural certainty, that Defendant: failed to provide Claimant a safe walking surface; failed to properly maintain the sidewalk; allowed the hazardous condition to exist; and failed to eliminate, warn of, or guard the hazardous condition (id., pp. 175-176). Finally, Mr. Bremer opined that Claimant had a reasonable expectation of a safe walking surface, which was violated, so that she tripped, fell, and was injured (id., p. 177).
Upon questioning by defense counsel, Mr. Bremer agreed that his career emphasis as an architect revolved around the design of grocery stores, big box stores, and playgrounds (Tr., p. 178). He further agreed that his testimony and his report were based upon the opinions, conclusions, and vertical measurements taken by Claimant's former expert, Conrad Hoffman, and that he did not take the vertical measurements himself (id., p. 179). By the time the witness visited the accident site, the condition, described by Claimant and depicted in the photographic exhibits Claimant's counsel showed him, had been removed and replaced (id.). Accordingly, he also agreed that his measurements of the difference in changes in elevation of the edge of the sidewalk flag were based solely upon his analysis of the photographic exhibits (id., pp. 180-181). He was not aware of any prior incidents in the area where Claimant fell (id., p. 201). He opined that the area where Claimant fell was not a trap, however, it was a hazardous condition (id., p. 202).
Which was not introduced into evidence at trial.
Who could not testify at trial due to a medical condition. --------
Mr. Bremer stated that the New York State Building Code (Ex. I ) does not state that ASTM standards are required to be followed (Tr., pp. 205-206). He also stated that the New York State Property Maintenance Code (Ex. H) does not require that the ASTM standards be followed. Rather, they are recommendations (id., pp. 220-221).
Mr. Convertino testified that he is Director, Chief Code Compliance Officer, and Assistant Director of Construction, at OGS, and has worked for OGS for 15 years (Tr., pp. 249-250). He has a Bachelor's Degree and a Master's Degree in Architecture (id., p. 250). He has been a registered and licensed architect in New York State since 2004 (id., pp. 251, 258). He is a member of the American Institute of Architects and has worked in the architectural field since he earned his Master's Degree in 1995 (id., pp. 250-251).
Mr. Convertino stated that he was requested to review the site of Claimant's fall by OGS counsel's office. Later, he was provided documents to review by the Attorney General's Office relating to Claimant's lawsuit (Tr., p. 252). He is familiar with the area referenced in the Claim, as he has worked at the ESP for 15 years (id., p. 254). On July 25, 2014, he went to the area described in the Claim with Noreen Van Doren, Esq., OGS counsel, and Thomas Hotte, an employee in the OGS Real Property Division, Maintenance Services (id., pp. 252, 254). He could not find the condition described in the Claim when he inspected the area on July 25, 2014 (id., p. 262). Looking at the photograph that is Exhibit 5, the witness stated that he did not see the condition depicted in that photo when he inspected the area. There was nothing in that area that constituted a defect or tripping hazard (id., p. 262).
Mr. Convertino further testified that the New York State Property Maintenance Code (Ex. H) is relevant to this Claim because it deals with an owner's responsibility to maintain a premises in good working order. The Code's conditions must be met at all times (Tr., pp. 262-263). He stated that the Code provisions that require that facilities be generally secure and maintained do not require compulsory adherence to any part of the ASTM standards (id., pp. 266-267, 286; see Ex. H [New York State Property Maintenance Code, p. 7 (§§ 301 [General Requirements] & 302 [Exterior Property Areas])]). Mr. Convertino agreed that it generally is not within the acceptable practices of architecture for an architect to provide opinions, within a reasonable degree of professional certainty, after looking at photographs and without any outside information, because such information is both limited and potentially inaccurate (id., p. 271). He opined, with a reasonable degree of professional certainty, that the area, as described in the Claim, did not rise to the level of a hazardous condition (id., p. 278). Rather, he said it was an open and obvious condition in an outdoor context (id., p. 279). He stated that, because it was open and obvious, it was a trivial defect (id., p. 323). He did not notice anything during his investigation that caused him any concern (id., p. 282).
Mr. Convertino agreed that he did not observe the condition depicted in the photograph that is Exhibit A, it was not present during his inspection of the area, and, moreover, that he did not observe any newly poured concrete in that area so that it appeared that conditions had been in the state he observed there for some period of time (Tr., pp. 282, 298-299). However, he also stated that the area depicted in Exhibit A, which was initialed by Claimant, is not unusual, so that a normal person under normal conditions would be able to navigate it and, therefore, in his opinion, it was not a trap, nor did he observe anything in the area that appeared to be a tripping hazard, defect, nuisance, or trap (id., pp. 283, 289-290).
Mr. Convertino disagreed with Mr. Bremer's statements that the walkway, as depicted in Exhibit A, was unsafe and a hazard for pedestrian travel, and opined that, while the condition of the sidewalk flag in the photograph was not ideal, it did not rise to the level of a hazardous condition (Tr., p. 293). The witness stated that he would not recommend Mr. Bremer's proposed methods of repairing the sidewalk flag because: parging the surface is only a temporary fix and often fails; and grinding the surface is expensive, dirty, dangerous, and, generally, does not work either (id., pp. 294-295). Rather, he said that full replacement is the preferred method of repair and, barring that, lifting the slab and putting flowable fill or epoxy underneath the void area below the concrete (id., p. 324).
Mr. Hotte testified that he works for OGS in Plaza Operations as a Building Manager 4. He has oversight of the entire ESP complex. His unit is responsible for maintenance of the ESP, including repair of the pedestrian walkways (Tr., pp. 328-329). He stated that he is very familiar with the area of the ESP depicted in the photograph that is Exhibit M (id., p. 337). He stated that the ESP area by the children's park where Claimant fell is closed for the winter, from early December until April (id.). In the spring, the maintenance staff is instructed to go out and inspect for areas that may appear to be tripping hazards, for spalling concrete, trees, and brush that may have fallen in the park, anything that could cause harm or impair the safety of people using the Plaza (id., p. 338). If a worker found an issue, a work order would be generated by the computerized maintenance system (id.). He stated that workers walk and check the Plaza on a regular basis (at least weekly) looking for hazards or defects (id., p. 339). The witness identified Exhibit 12 as a packet of four separate work orders (id., p. 341). One of them is a work order created on June 13, 2013. In the box labeled "Description" is typed "PAVERS AND CONCRETE IN CHILDREN'S PARK ARE CRACKED AND SPALLED. TRIP HAZARDS." It appears from the document that the repairs were performed between August 20-30, 2013 (Ex. 12, unnumbered p. 4).
Mr. Hotte stated that a problem can be identified, or complaint made, regarding the Plaza by a staff member, a tenant, or a member of the public, but a work order only can be generated by OGS staff (Tr., p. 340). He stated that the June 13, 2013 Work Order included in Exhibit 12 was created by Aaron Hansen, who was employed in the OGS Maintenance Shop performing data entry at that time (id., pp. 342-343). He said Mr. Hansen's function with regard to the Work Order was to collect the information from the person making the report and input the information into the computer system, which would then generate the work order (id.). The person who reported the information to Mr. Hansen was not identified (id., pp. 343, 356). Mr. Hotte never received an accident report regarding Claimant's fall (id., p. 345). After OGS received a FOIL request, Mr. Hotte went out to the area of the children's park shown in Exhibits A, B, and E on August 19, 2013 to inspect the area to see if there was anything that could be a trip hazard or cause anyone to fall, but he did not see the condition depicted in Exhibit A with Claimant's initials (id., pp. 345-346).
LAW
"[W]hen the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506, 511 [1984]). Accordingly, while the State is not an insurer of those who enter upon its premises, and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850, 851 [1985]; Muhammad v State of New York, 15 AD3d 807, 808 [3d Dept 2005]; McMullen v State of New York, 199 AD2d 603, 604 [3d Dept 1993]; Tripoli v State of New York, 72 AD2d 823, 823 [3d Dept 1979]), it does have a common-law duty to maintain its facilities "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk," with foreseeability constituting the measure of liability (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir 1972], cert denied 412 US 939 [1973]; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]).
To establish a prima facie case of negligence in a slip-and-fall action, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Keating v Town of Burke, 86 AD3d 660, 660-661 [3d Dept 2011]).
The existence of a dangerous condition generally is a question of fact that may hinge upon the facts and circumstances peculiar to each case (Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).
"To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [D]efendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1315 [3d Dept 2007]).
Finally, a claimant has the duty to use reasonable care to observe his or her surroundings and to see what is there to be seen, and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]; Martinez v State of New York, 225 AD2d 877, 878 [3d Dept 1996]).
With respect to dangerous or defective conditions, "there is no 'minimal dimension test' or per se 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]). Rather, it generally is a question for the trier of fact to determine whether such conditions exist based upon "facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the 'time, place and circumstance' of the injury" (Trincere v County of Suffolk, supra at 978, quoting Caldwell v Village of Is. Park, 304 NY 268, 274 [1952]). Some physical defects, however, may be too trivial and slight in nature to be actionable (Lamarre v Rensselaer County Plaza Assoc., 303 AD2d 914 [3d Dept 2003]; Guerrieri v Summa, 193 AD2d 647 [2d Dept 1993]). An 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' " (Castle v Six Flags, Inc., 81 AD3d 1137, 1137 [3d Dept 2011], quoting Liebl v Metropolitan Jockey Club, 10 AD2d 1006, 1006 [2d Dept 1960]).
Moreover, landowners are not obligated to warn against conditions on the land that could be readily observed by the use of one's senses. Where the condition is open and obvious "for all to see … [t]here is no duty on the part of a landowner to warn against a condition that can readily be observed by those employing the reasonable use of their senses. Under such circumstances, the condition is a warning in itself" (Tarricone v State of New York, 175 AD2d 308, 309 [3d Dept 1991], [citations omitted], lv denied 78 NY2d 862 [1991]; see Herman v State of New York, 94 AD2d 161 [2d Dept 1983], affd 63 NY2d 822 [1984]).
DISCUSSION
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant failed to meet her burden, and did not establish by a preponderance of the credible evidence that Defendant was negligent in connection with her accident.
The Court finds Claimant did not establish by a preponderance of the credible evidence that a dangerous condition existed on the date of the accident. Claimant offered generally sincere, earnest, and straightforward, testimony. While she identified the sidewalk flag she tripped on and placed a circle around, or drew arrows to show, the area where that occurred on several photographic exhibits (see Exs. 6A, 9A, 10A), and, at her deposition, marked Exhibit A with an "x" and her initials to indicate where she fell, she was not able to identify the exact spot where her foot caught the raised sidewalk flag. She stated it was in the area between the circle she drew on Exhibit 6A and the arrow that she placed on Exhibit 10A. No measurements were offered to establish how big a distance on the sidewalk that space encompassed. In addition, she did not know the difference in elevation of the sidewalk flag. Mr. Bremer, while looking at the photograph marked as Exhibit A, testified that the flag was raised an inch on the left side, 1¼ inches in the middle, and 1½ inches on the right, as one looks at the photo. The Court concludes from Claimant's testimony, and the several photographic exhibits she marked, that she tripped somewhere between the left side and the middle of the sidewalk flag.
The Court does not give much weight to Mr. Bremer's testimony, as he was not retained, and did not visit the accident site, while the condition Claimant testified to existed. He relied upon Mr. Hoffman's report and made determinations as to the height of the raised sidewalk flag based upon his analysis of the photographic exhibits. Mr. Convertino opined that it is not within the acceptable practice of architecture for an architect to provide opinions within a reasonable degree of professional certainty by just looking at photographs because photographs provide limited and potentially inaccurate information (Tr., p. 271). Mr. Bremer also relied upon ASTM standards that he said consider any differential over ¼ inch to be a tripping hazard. However, it was established at trial by Mr. Convertino that the ASTM standards have not been adopted by New York as a standard. Further, Mr. Bremer testified that the New York State Building Code (Ex. I) does not state that the ASTM standards are required to be followed. In fact, "there is authority to the effect that small changes in elevation in walkways that are otherwise in good condition are trivial and nonactionable as a matter of law" (Brumm v St. Paul's Evangelical Lutheran Church, 143 AD3d 1224, 1226 [3d Dept 2016]). In Castle v Six Flags, Inc. (supra at 1138-1139), a height differential of about an inch was deemed a trivial defect where, as here, the pavement otherwise was in good condition, dry and free of debris, and it was clear and sunny at the time of the accident, and the Third Department went on to state that, even if the height differential was 1¼ inches, it would fail to raise a material fact sufficient to defeat defendant's motion for summary judgment. In that regard, the Court notes that, while Mr. Bremer referred to "debris" between the sidewalk flags, the phrase used by Claimant's counsel in posing his question, "organic matter," is closer to the mark (Tr., pp. 173-174). The Court has reviewed the photographic exhibits of the area where Claimant fell (see Exs. 5-10, A-B, E, M). They depict a light accumulation of what appears to be dead grass, leaves, and/or pine needles such as one might expect to encounter on a sidewalk near lawns, shrubs, and trees. Overall, however, the sidewalk appears neat, dry, perhaps swept recently. Certainly, there is no evidence of garbage, refuse, or other items that would impede the progress of a person walking there. Accordingly, the Court finds that the sidewalk was dry and free of debris.
Claimant was unable to describe the height of the raised sidewalk flag and the Court finds the photographic evidence inconclusive on this point. While the edge of the sidewalk flag is not even across its edge and appears to be raised, the Court finds the photographic evidence inconclusive as to the height differential, since there are no objects (such as a ruler or a shoe) visible in close proximity to the affected area that might provide some sense of scale or context.
Moreover, the Court concludes that such condition did not constitute a hidden trap or snare, but, rather, was open and obvious. Claimant testified that shade from a tree covered the walkway and the photographic evidence likewise depicts the area in shade (see Exs. 6, 6A, 8, 9, 9A, 10, 10A, A, E). At the same time, Claimant did not believe that her vision was impaired by the shade, and the slight irregularity in the sidewalk is clearly visible in those photographic exhibits. Certainly, the area is not a dark copse, or grove of trees, where little or no light would reach the ground. In addition, the accident occurred in broad daylight on a nice, clear day so that there is no evidence to suggest inclement weather or any other adverse conditions existed that would have affected Ms. McDaniel's vision. Neither was there any testimony as to the existence of the opposite problem - too much light - such that Claimant would have been blinded by glare or the sun. In short, the Court determines that the shade cast by the trees in the park was not a condition that should have impaired Ms. McDaniel's ability to see what there was to be seen, or relieved her of the duty to do so. Thus, the Court concludes that the trivial defect in the condition of the pavement was open and obvious, and shade was not a contributory cause to Ms. McDaniel's accident.
Claimant also testified that she was looking straight ahead and was not looking at the ground as she walked, as she did not want to lose sight of her son, who was "a good bunch ahead of her" as they walked. While she testified at trial that she was walking at her normal gait, she did state, at her deposition, that she was walking a little bit faster than normal to keep up. In addition, none of the other members of her family tripped in that area that day. Thus, one possible cause of Ms. McDaniel's accident was a failure on her part to see what was there to be seen.
Assuming, arguendo, that a dangerous condition existed, Claimant failed to establish that the State had notice that a dangerous condition existed. Claimant relies upon the existence of the June 13, 2013 work order (Ex. 12, unnumbered p. 4) to establish that the State had notice of the allegedly dangerous condition of the sidewalk flag that Claimant tripped over. However, Claimant did not produce any evidence that the condition described in the work order was at the same sidewalk flag where Claimant tripped. The work order just described the condition as pavers and concrete in the children's park "are cracked and spalled." No more specific location is mentioned. In addition, no evidence of any prior trip and fall at the location where Claimant fell was produced at trial. In addition, there was no evidence that Defendant created the condition that caused Claimant to fall.
Accordingly, the Court determines that Claimant failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with her Claim and the Claim is dismissed.
All motions are denied as moot. All objections upon which the Court reserved determination during trial are now overruled.
The Chief Clerk is directed to enter judgment accordingly.
November 13, 2020
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims