Opinion
# 2012-040-013 Claim No. 115854
03-05-2012
MELENDEZ v. THE STATE OF NEW YORK
Synopsis
Claimant fell down staircase at Correctional Facility. Court finds Defendant 30% responsible and Claimant 70% responsible for Claimant's injuries. Case information
UID: 2012-040-013 Claimant(s): ISMAEL MELENDEZ, JR. Claimant short name: MELENDEZ Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 115854 Motion number(s): Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: Gary E. Divis, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Thomas R. Monjeau, Esq., AAG Third-party defendant's attorney: Signature date: March 5, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, Ismael Melendez, established by a preponderance of the credible evidence that Defendant is 30% responsible for personal injuries he sustained on July 7, 2008 when he fell down the west side mess hall stairs at Clinton Correctional Facility ("Clinton"), located in Dannemora, New York. He alleges that Defendant failed to maintain the stairway in a reasonably safe condition because of a gap in a handrail. The Court also concludes, by a preponderance of the credible evidence, that Claimant is 70% responsible for his accident because he did not know why he tripped on the stairway, and failed to attempt to avoid his accident by putting out his hands to stop his fall or protect himself. Claimant alleges multiple injuries as a result of his accident.
A bifurcated trial, addressing liability issues only, was held on September 13, 2011 at the Court of Claims in Albany, New York. There was testimony from four witnesses to the accident: Claimant; Trevor Griffith, a fellow inmate; New York State Correction Officer ("CO") Tammy Bezio; and CO Steven Bezio. Two other witnesses testified: Edwin C. Gent, (Claimant's expert); and CO Todd Perry (Clinton's fire and safety officer). In addition, deposition testimony was received from Correction Sergeant Thomas Tamer, who responded to the accident.Thereafter, the parties requested and were granted additional time to submit post-trial memoranda.
A transcript of Sergeant Tamer's February 23, 2010 examination before trial ("EBT") was admitted into evidence (see Ex.11).
FACTS
On the morning of July 7, 2008, the 44 inmates in Claimant's housing company had just finished breakfast in Clinton's west side mess hall and were preparing to go downstairs to their work programs. Claimant and Mr. Griffith knew each other, having lived in that same company for about three months, though they never worked together. When the inmates were dismissed from the mess hall, they were directed by a correction sergeant at the top of the west side mess hall stairway to descend the right-hand side of the stairs and to line-up in a column, two by two, on each step, beginning with the first step above the stairway landing (see Ex. 7-C, p. 38; Ex. A [the inmates descended on the side along the brick wall]). Sergeant Tamer believed that the stairs are made of cement and/or steel (Ex. 11, pp. 18-19). Claimant said that the steps were about four feet wide and that the two inmates on each step stood shoulder to shoulder with only a small space between them. He agreed that he was not wearing shackles, manacles, or wrist restraints. Sergeant Tamer and Tammy Bezio, the CO supervising the flow of inmate traffic at the bottom of the west side mess hall stairs, said that the practice was to hold the inmates in place on the stairway until the officer indicated that they could be released to proceed to their program activities (see Ex. 11, p. 21). While on the stairs, inmates were not allowed to move or talk unless otherwise permitted to do so by a CO.
Claimant, Mr. Griffith and Sergeant Tamer each testified that the photographs that are Exhibits 7-C, p.38,A, and B, fairly and accurately depict the west side mess hall stairway on the day of the accident. Exhibits A and B depict a gap in the handrail along the brick wall at a point where there is a rectangular shaped area of bricks of a slightly different color, as well as a white portion of wall that resembles a windowsill. The parties stipulated that there once had been a window at that place that had been removed and bricked-up at least 15 years prior to the incident. CO Steven Bezio said that the gap in the handrail had existed during his entire tenure at Clinton (21 years) up until the date of the accident. Sergeant Tamer's recollection was the same during his 9 ½ years at Clinton (Ex. 11, pp. 9, 11).
With the exception of the continuous handrail visible in Exhibit 7-C, p. 38. Exhibits 7-A, 7-B, and 7-C were admitted into evidence in order to illustrate the configuration of the stairway. The parties agreed that evidence of post-accident repairs/alterations to the handrail, visible in those photographic exhibits, that created a continuous railing do not constitute an admission of negligence on the part of Defendant and the Court draws no such inference from those exhibits. The parties stipulated that the exhibits Sergeant Tamer reviewed at his EBT correspond to Exhibits 7-A, 7-B, 7-C, A, and B (see Ex. 11, pp. 7-9, 15).
While the inmates were on the stairway, there came a time when Claimant fell. The inmates in front of him appeared to twist and duck as they tried to get out of his way. None of them appeared to try to help. It was a nasty fall. Mr. Griffith said that Claimant "seemed to land really hard [on the floor] at the bottom" "with a loud thud."Claimant landed face first, was unresponsive to the COs, and appeared to have lost consciousness. After that, Mr. Griffith said that Claimant did not move, adding "honestly, I thought he was dead." CO Tammy Bezio said that she immediately called for medical staff.
All quotations not otherwise attributed are taken from the electronic recording of the trial and/or the Court's trial notes.
Sergeant Tamer was upstairs, in the mess hall or near the top of the stairs, when Claimant's accident occurred (Ex. 11. pp. 17-18). In his report, which was written within an hour of the accident, he related that he was "running west side morning chow when I heard a commotion at the bottom of the stairs. Upon investigation I was told that inmate Melendez had fallen down the stairs while leaving the mess hall. This was confirmed by Officer S. Bezio" (Ex. 3).The source of his information with respect to matters he did not personally observe were the "officers that were on the scene" which was both of the Bezios (Ex. 11, pp. 5-6).
The parties stipulated that the exhibit Sergeant Tamer reviewed at his EBT corresponds to Exhibit 3 (see Ex. 11, pp. 5, 7-8).
On this much, the narratives of the four eyewitnesses can be harmonized. They disagree, however, with respect to several important facts. In the account provided by Messrs. Melendez and Griffith, the inmates were standing much farther up the staircase than the officers said. Thus, when Claimant tripped and reached for the handrail, he missed it because he was in the area of the gap, and fell. By contrast, CO Tammy Bezio and CO Steven Bezio said that Claimant was near the bottom of the stairs when he fell with his eyes closed. His arms were by his side and he did not put his hands out to break his fall. CO Steven Bezio said that Claimant appeared to have fainted or passed out.
The inmates testified that they were somewhere near the middle of the group of inmates with each of them standing on the side of the stairway closest to the brick wall. Mr. Griffith said that he was directly behind Claimant and believed there was an empty step between them, though Claimant thought that the inmates stood on each step.Mr. Griffith said that a CO had directed the inmates to resume walking down the stairs, so they were in motion and had descended several stairs when, "[f]or some reason, [Claimant] stumbled." Claimant, likewise, testified that, when he was about midway down the stairway, "I stumbled. I don't know for sure if I stepped on the guy's foot in front of me, or not, I don't know exactly why I fell. But, as I fell I reached out [with my right hand] … for the banister on my right." There was a gap in the handrail at that point, however. Mr. Melendez said that he "just missed" by "maybe a couple of inches" grasping the end of the upper handrail "where it is cut and capped" (see Ex. B-1 [Claimant drew a red dot to indicate where his hand reached for the handrail]). Mr. Griffith agreed that Claimant "reached out with his right hand. I presumed he was reaching for the railing to steady himself, but there wasn't a railing there" (see Ex. A-1 [Mr. Griffith placed red arrows and dots to indicate where he saw Claimant reach for the missing portion of handrail]; Ex. A-2; Ex. 7-C-1 [Mr. Griffith placed red dots on Exhibits A-2 and 7-C-1 to indicate the approximate step upon which Claimant was standing when he reached for the handrail]). Mr. Griffith said that he tried, unsuccessfully, to reach out for Claimant as he fell. Claimant testified that the "whole point is I tripped and I tried to steady myself. If the handrail was there I would have been able to steady myself."
Mr. Melendez remembered Mr. Griffith saying something funny behind him when they were at the top of the stairs. He assumed that Mr. Griffith was still behind him when he fell but could not be sure that he was directly behind him. He said he misspoke at his EBT on February 23, 2010, when he said that he believed Mr. Griffith was in front of him.
As for the officers' account, CO Tammy Bezio said that she was observing the inmates to "make sure they are doing the right thing, they're not pushing, shoving, stabbing." As the inmates were forming up on the stairway, she was joined at the bottom of the stairs by her husband and fellow CO, Steven Bezio, who was waiting until the inmates moved to their program activities before he ascended the stairway. The two COs were standing relatively close to each other.
Both officers said that they saw Claimant about three or four steps up from the bottom of the stairway landing. The Inmate Accident Investigation Report form states that it is to be completed by Clinton's fire and safety officer (see Ex. 1). CO Todd Perry testified that he was Clinton's fire and safety officer on the date of the accident. That report, dated the same day as the accident, states that Claimant fell approximately four feet, although it does not indicate the source of the information (id.).
CO Steven Bezio related that, as the inmates were lining up, he watched Claimant for about a minute and a half. The officer said he could see Claimant's face clearly because his head and shoulders were visible between the two inmates in front of him. CO Steven Bezio said that, at first, Mr. Melendez' eyes were open and he appeared to be conscious and normal, then "I saw his eyes begin to roll back in his head and he fell straight forward." CO Tammy Bezio saw inmates begin moving their shoulders to the side. At first, she did not know what they were doing. Then, she saw Mr. Melendez falling forward with his eyes shut. The officers said that Claimant did not put his hands out in an attempt to stop his fall or protect himself. Rather, he fell straight forward, hitting his head, face first, on the cement floor of the hallway in front of CO Tammy Bezio. CO Steven Bezio said that Claimant "appeared to pass out" as he fell to the floor.
Claimant was questioned about his medical records. Mr. Melendez stated that he suffered from panic attacks and had passed out or fainted on several occasions before the date of his accident.
Claimant's expert, Mr. Gent, testified that he is a licensed professional engineer and consultant. He has a degree in civil engineering and certifications and licenses in a number of jurisdictions, including New York, broad professional experience in the design and management of facilities projects, and has testified in various courts, including the Court of Claims (see Ex. 10). Mr. Gent said that, as a design professional, he assesses whether or not buildings are safe and accessible to people and meet code requirements. Those code requirements, he said, create an expectation that building design elements, including stairs and handrails, will be consistent and regular from building to building. Mr. Gent opined that the gap in the handrail constituted a safety defect that was a deviation from good and accepted engineering principles contained in the building and fire codes (see Ex. 6 [Fire Code and Property Maintenance Code]; Ex. 8 [Existing Building Code]; and Ex. 9 [Building Code]). He agreed that each of the three iterations of the codes that are exhibits were adopted in 2007 and became effective in 2008. He further opined that, if Claimant had slipped on a step and reached out for the handrail, but instead encountered a gap, it would have caused him to further misstep and contributed to his fall.
In connection with this case, Mr. Gent said that he had reviewed various photographic exhibits and synopses of several depositions. Mr. Gent said that he did not visit Clinton to inspect the stairway, or take measurements to determine if the stairway complied with code provisions. He did not know when Clinton was built, but agreed that the photographic exhibits suggest that the facility was built in the 1930s or 1940s. He further agreed that: the Building Code (Ex. 9) applies only to new building projects; the Existing Building Code (Ex. 8) applies to existing buildings undergoing certain renovation/reconstruction projects as a means by which piecemeal compliance with newer code requirements is achieved; and that Fire Code and Property Maintenance Code (Ex. 6) § 306.1 provides that every interior flight of stairs must have a handrail on one side of the stair and agreed that the photographic exhibits evidence that there are handrails on both sides of the stairway (see Ex. 7-C). Mr. Gent did not know when the window was bricked-up and was unable to say what building code requirements, if any, would have governed the gap in the handrail when that project was undertaken. Assuming that the project occurred at least 15 years ago, he said there probably was no provision in effect at that time which would have required that Clinton upgrade to total code compliance.
Mr. Gent agreed that his opinion and expertise in this case relate not to how Claimant fell, or what happened after he fell, but, rather, to his opinion that Mr. Melendez reached for the handrail, it wasn't there, and that contributed to his fall. It would not affect his opinion regarding the safety of the handrail if Claimant passed out, although he said that, if Mr. Melendez fainted, he would have had a hard time reaching out for the handrail.
LAW
To establish a prima facie case of negligence in a premises liability claim asserting that injury resulted from a dangerous condition, 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, [3d Dept 2011]; Baez v Jovin III, LLC, 41 AD3d 751, 752 [2d Dept 2007]; De Luke v City of Albany, 27 AD3d 925, 926 [3d Dept 2006]). "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, Ct Cl, Claim No. 107632, June 19, 2006, Hard, J. [UID No. 2006-032-505]; 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]).
"[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 the safety of its inmates and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850 [1985]; Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Bowers v State of New York, 241 AD2d 760 [3d Dept 1997]), 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]). That duty extends to the State's institutions, including its correctional facilities (Heliodore v State of New York, supra; Bowers v State of New York, supra).
The existence of a dangerous condition is generally 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]). Moreover, "[t]o 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 a [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, to see what is there to be seen, and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]).
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 his burden, and did not establish by a preponderance of the credible evidence that Defendant violated the provisions of the building and fire codes. The Court also finds by a preponderance of the credible evidence, however, that Claimant did establish that Defendant breached its common-law duty to maintain the stairway in a reasonably safe condition because the Court finds, under the facts and circumstances of this Claim, that: the gap in the handrail constituted a dangerous condition; the State had constructive notice of that dangerous condition and failed to alleviate it within a reasonable time; and such condition was a substantial factor in the events that caused the injury suffered by Claimant. At the same time, the Court also finds that Claimant must bear substantial culpability for his accident because he did not know why he tripped on the stairway, nor did he assert, no less prove, any defect with respect to the stairs themselves that would have accounted for his tripping. Moreover, he did not attempt to avoid his accident by putting out his arms to try to break his fall or protect himself. The Court finds that Claimant's unexplained trip and his failure to attempt to avoid his accident were substantial factors in the events that caused the injury he suffered.
Witness Credibility
As an initial matter, the Court must assess the credibility of several witnesses in order to resolve conflicts in their testimony.
First, the Court finds the testimony of Messrs. Melendez and Griffith more persuasive and worthy of credit than that of CO Tammy Bezio and CO Steven Bezio concerning the location of the inmates on the stairway. It is the Court's assessment that the testimony about the other inmates twisting and ducking to get out of Claimant's way is more consistent with a longer fall than three or four steps, as the officers maintained. CO Tammy Bezio also stated that, at first, she did not know what the inmates were doing when she saw them begin moving out of the way. Then, she saw Mr. Melendez falling forward. Perhaps Claimant already had fallen to the level of the third or fourth step before CO Tammy Bezio was able to process what was happening. CO Steven Bezio's testimony, on the other hand, cannot be reconciled with the testimony of the two inmates. The Court did not find his testimony to be credible and, thus, finds, as a matter of fact, that the inmates were standing halfway up the stairs as they described.
Second, the Court is unable to credit CO Steven Bezio's testimony that he observed Claimant faint. He asserted that he observed Claimant, out of the many inmates assembled on the staircase that morning, over a period of a minute and a half. At first, Mr. Melendez' eyes were open and he presented as conscious and normal in appearance. The officer said he then witnessed Claimant's eyes roll back in his head and he fell straight forward. Yet, none of that dramatic narrative is reflected in the three contemporaneously-prepared reports of the accident. The Inmate Accident Investigation Report simply states that Claimant "missed a step and fell" (Ex. 1). The Inmate Injury Report indicates that Mr. Melendez "missed [a] step holding rail [and] fell" (Ex. 2). As noted above, Sergeant Tamer stated at his EBT that CO Steven Bezio was one of the sources of information he relied upon in preparing his report within an hour of the accident and that report specifically states that CO Steven Bezio confirmed that Claimant fell down the stairs while leaving the mess hall (see Ex. 3). The Court finds the absence of any reference to Claimant fainting in the reports to be inexplicable. The Court, likewise, finds CO Steven Bezio's statement on cross-examination, that no one asked him to make a report of his observations concerning the accident, to be both inadequate and unpersuasive to account for the lack of any contemporaneous record of his asserted observation that Claimant had fainted when he fell.
Third, the Court credits Claimant's unequivocal statement that he did not pass out. In this regard, the Court finds that Mr. Melendez' past fainting episodes documented in his medical records do not establish that he fainted on July 7, 2008 or that his fall is related to those prior episodes. Claimant's credible testimony demonstrated, to the Court's satisfaction, that he did not faint on some of the occasions noted in the medical records. With respect to the others, he noted specific symptoms that preceded each fainting spell which he did not experience on the day of his accident. As noted above, the Court is unable to credit CO Steven Bezio's version of events. CO Tammy Bezio did state that Claimant's eyes were closed when he fell, but the Court concludes that is not proof that he fainted. Rather, there could be a myriad of other reasons why his eyes were closed at the moment the officer observed him.
Concerning Mr. Melendez' medical records, an October 28, 2005 ambulatory health record ("AHR") entry relates that a CO reported that Mr. Melendez fainted in his cell, Claimant had not been eating, and that Claimant was instructed "to drink and eat" (Ex. C, p. 65 [emphasis in original]). Claimant recalled the incident, noting "I did not pass completely out. I was dizzy and lightheaded. I'm the one who called the officer actually."
A September 25, 2006 AHR notation indicates that Claimant passed out in the school and felt chills after having gone out in the rain the previous day. The notation "Anxiety" also appears (id., p. 68). Mr. Melendez remembered that incident as well, stating that it was one of the panic attacks, from which he suffers. He felt like he could not breathe, saw spots, sat down, and told the instructor that he felt like he was going to pass out.
Defendant next pointed to a February 17, 2008 AHR entry concerning a prison yard fall in which Mr. Melendez claimed to have lost consciousness (id., p. 77). Claimant recalled that he slipped on ice and had a split in his head, but could not remember all the details. Other medical records appear to corroborate Mr. Melendez' recollection that this event concerned a slip and fall on ice and not a fainting episode (see id., pp. 96, 103, 137).
An April 3, 2008 AHR entry states that Claimant felt dizzy and fell in the Office of Mental Health ("OMH") (id., p. 78). Claimant explained that OMH staff was counseling him after his father died. He was seated, felt dizzy as he was getting up out of his chair, sat back down, and began having a panic attack. He denied falling on the floor.
Mr. Melendez agreed that he did pass out on May 1, 2008. The AHR record states that he "was sitting down sewing in the tailor shop when he suddenly lost consciousness" and that the event was witnessed by a CO (id., p. 79). The entry further relates that Mr. Melendez stated that "he was very lightheaded and experienced palpations, 'tingling in his heart,' " that he had shortness of breath just prior to losing consciousness and had been experiencing similar episodes with loss of consciousness for two weeks (id.). Mr. Melendez said that he advised the COs beforehand that he felt unwell. "Every time this happens, I start to feel like I can't breathe. I feel like somebody is trying to suffocate me. I see white spots. My fingers go numb. I get enough time to sit down and I told [the CO], I'm having one of my attacks, and he said 'oh, you're going to be alright. Just go sit down.' That's why I wound up passing out completely." Tests were performed in order to try to determine the cause of this fainting episode (see id., pp. 98, 113, 132, 134-136). A holter monitor report, dated June 5, 2008, indicated that "no cause for syncope[was] found on this recording" (id., p. 141). Mr. Melendez said that the ultimate conclusion was that he was having panic attacks, and a couple of months later he was prescribed Prozac to treat them.
The parties stipulated that references in Claimant's medical records (see Ex. C) to the term "syncopal," or any variant thereof, means fainting or passing out.
Claimant agreed that he had a physical evaluation on July 1, 2008.The AHR entry indicates that Claimant reported "I pass out a lot. It happens a lot when I'm relaxing. My fingertips [feel] numb, [shortness of breath], breathing hard, a little lightheaded, and my muscle (pectoral) starts twitching" (id., p. 82). The AHR further states that Claimant has such episodes every two weeks. Mr. Melendez testified that the nurse asked him to explain what occurs. He noted that "it happens when I'm thinking about my life, my family. It really kicked in when my father died in April." After hearing about the warning he gets before an attack, Claimant said that the nurse told him, "I believe that's a panic attack." Mr. Melendez said that, when he said he passed out a lot, he meant more than once, adding "I shouldn't be passing out at all. That's not normal."
The parties stipulated that the stated date on the bottom entry on page 82 of Exhibit C (July 1, 2008) is in error. The correct date of that AHR entry is July 8, 2008.
By contrast, Mr. Melendez said that he knew he did not pass out on the day of his accident because "if I would have been feeling anything that I always feel before I have these little panic attacks, I would have sat down right on the steps and told the officer. And they would have looked at my medical records and never written me a misbehavior report because I have these panic attacks. I don't want to get hurt. I'm young. I would have sat right down if I felt this." He was emphatic that he "did not pass out" before he hit the landing at the bottom of the stairway.
Fourth, the Court credits the inmate's testimony that Claimant reached for, but missed, the handrail as he tripped (cf. Vachon v State of New York, Ct Cl, Claim No. 97812, May 11, 2000, Collins, J. [UID No. 2000-015-511] [As best as the Court could discern, Claimant did not fall in area where handrail would have been located, had one been installed], affd 286 AD2d 528 [3d Dept 2001] [Claimant failed to establish that handrail could have prevented her fall]).
Fifth, the Court credits the officers' uncontroverted testimony that Claimant did not put his hands out in an attempt to stop his fall or protect himself.
Violations of building and fire codes not proved
While Mr. Gent testified sincerely and appeared to be knowledgeable about the codes, the Court nevertheless is constrained to find that Claimant failed to establish a code violation. Exhibit 9 is inapplicable because Clinton clearly is not a new construction facility. Claimant failed to establish that a significant renovation/reconstruction occurred that would have required that the handrail comply with the standards articulated in the Existing Building Code (see Ex. 8). Moreover, the Court concludes that the stairway met the requirements of the Fire Code because there was a continuous handrail on the other side of the stairway (see Ex. 6, § 306.1).
Defendant's Common-law Negligence Proved
"Defendant's claim of compliance with the fire and building codes is not dispositive [,however,] of [Claimant's] allegations based on common-law negligence principles" (Washington v Albany Hous. Auth., 297 AD2d 426, 427 [3d Dept 2002]). Apart from any code requirements, Defendant has the common-law duty of any landowner to maintain the stairway, including the handrail, in a reasonably safe condition (see Florentine v Church of Our Lady of Mt. Carmel, 340 F2d 239, 243 [2d Cir 1965] [applying New York law]; Frey v Russian Village, 72 F2d 261, 262-263 [2d Cir 1934] [applying New York law]).
The Court finds that, under the circumstances of this Claim, the gap in the handrail constituted a dangerous condition. A handrail "is designed to act 'as a protection against slipping and falling down the stairs' " (Courtney v Abro Hardware Corp., 286 App Div 261, 263 [1st Dept 1955], affd 1 NY2d 717 [1956], quoting Cahill v Kleinberg, 233 NY 255, 259 [1922]; see De Casiano v Morgan, 308 NY 526, 529 [1955]). In the Court's assessment, the photographic exhibits evidence that it is a long, steep stairway (see Ex. 7-A; Ex. 7-B; and Ex. 7-C). Sergeant Tamer thought that the stairs were made of cement and/or steel, and the photographs support that conclusion. He and CO Tammy Bezio both said that it was the practice at Clinton to use the stairway as a staging area, having companies of inmates line up, two by two, and then wait until they were authorized to proceed to their work programs, and the officer further noted that her job entailed watching the inmates to make sure that they did not push, shove or stab each other. The Court concludes that the gap in the handrail was a dangerous condition on a stairway with those characteristics and used in such a manner.
The Court further concludes that the State had constructive notice of that dangerous condition and failed to alleviate it within a reasonable time. The gap in the handrail was visible and apparent. Likewise, the defect existed for a sufficient length of time prior to the accident to permit Defendant to discover and remedy it. It was stipulated that the window had been removed at least 15 years before Claimant's accident and it was confirmed that the gap in the handrail at that place had existed for many years by both CO Steven Bezio (21 years), as well as Sergeant Tamer (9 ½ years). The lack of any documented falls or injuries on the west side mess hall stairway involving the gap in the handrail does not obviate the fact that Defendant had more than sufficient time to alleviate the defect, nor does it excuse the failure to do so.
The Court also concludes that the gap in the handrail was a substantial factor in the events that caused Claimant's injuries. "Proximate cause may be established without direct evidence of causation, by inference from the circumstances of the accident" where the evidence connects the alleged unsafe condition to the accident (Costantino v Webel, 57 AD3d 472, 472 [2d Dept 2008]; see Finnigan v Lasher, 90 AD3d 1286, 1288 [3d Dept 2011]; Ellis v County of Albany, 205 AD2d 1005, 1007 [3d Dept 1994]). In this instance, even though Claimant said that his fall was precipitated, initially, by a misstep, it also was his testimony that he reached out for the handrail with his right hand in an attempt to steady himself (see Viscusi v Fenner, 10 AD3d 361, 362 [2d Dept 2004]; Courtney v Abro Hardware Corp., supra at 262). Mr. Melendez said "I tripped and I tried to steady myself. If the handrail was there, I would have been able to steady myself" (cf. Plowden v Stevens Partners, LLC, 45 AD3d 659, 660 [2d Dept 2007] [insufficient connection shown between absence of handrail and fall where plaintiff did not allege that she reached out for a handrail either before or during her fall]). Based upon where Claimant was standing on the stairway and the fact that he reached out when he began to fall, the Court determines that, had a handrail existed where the gap was, it would have been within his reach. Thus, the Court further concludes that the evidence links the defective condition to Claimant's accident.
Claimant Culpability
While the Court finds Defendant was liable for the gap in the handrail, it also concludes that Claimant must bear substantial responsibility for his accident. In the first instance, the fact that Claimant tripped on the stairway was a substantial factor in his accident. As Mr. Melendez candidly testified, for some unknown reason, he stumbled, and he didn't know exactly why he fell. He did not assert, nor did he establish, any defect with respect to the stairs themselves that would have accounted for his tripping. Another substantial factor is that Claimant did not put his arms out or otherwise attempt to break his fall or protect himself. Thus, the Court finds that Claimant's unexplained trip, and his failure to attempt to break his fall or protect himself also were substantial factors in the events that caused the injury he suffered.
CONCLUSION
By a preponderance of the credible evidence that was presented, the Court finds Defendant 30% responsible for its failure to address a dangerous condition of which it had notice and Claimant 70% responsible because of his failure to demonstrate that the State was at fault in connection with his initial trip upon the stair and he failed to attempt to break his fall.
All motions and cross-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 interlocutory judgment accordingly. Instructions concerning the creation of a discovery schedule and trial date on damages will be provided under separate cover.
March 5, 2012
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims