Opinion
No. 116080.
01-20-2016
Joan STEIN as Executrix of the Estate of Meredith M. Powers, Claimant, v. STATE of New York, Defendant.
Kalter, Kaplan, Zeiger & Forman by Ivan, Kalter, Esquire, for Claimant. Eric T. Schneiderman, Attorney General of the State of New York by Edward F. McArdle, Esquire, Assistant Attorney General, for Defendant.
Kalter, Kaplan, Zeiger & Forman by Ivan, Kalter, Esquire, for Claimant.
Eric T. Schneiderman, Attorney General of the State of New York by Edward F. McArdle, Esquire, Assistant Attorney General, for Defendant.
DIANE L. FITZPATRICK, J.
This action was originally brought by Meredith Powers for injuries she sustained when she tripped and fell at the State University of New York (SUNY) Oswego Recreation and Convocation Center (hereinafter Campus Center) on July 1, 2007, around 3:39 p.m. Mrs. Powers has since passed away due to unrelated health issues, and her daughter, Joan Stein, as Executrix of her estate was substituted as Claimant (Court of Claims Act § 15 ). The matter has been bifurcated and this Decision addresses liability only.
Joan Stein was issued Letters Testamentary on December 12, 2013, by Sullivan County Surrogate's Court. Use of the term, Claimant, hereafter, shall refer to Ms. Stein.
On July 1, 2007, Ms. Powers and friends traveled a couple of hours from Sullivan County to SUNY Oswego to the newly constructed Campus Center for a handbell concert. In Mrs. Powers' depositions, she recalled driving to Oswego and entering the Campus Center on the concourse level. This was the first time she had gone to this facility.
Claimant also has a Supreme Court case pending involving the same incident, and Mrs. Powers was deposed separately for each proceeding. Both deposition transcripts were received as exhibits, specifically, Exhibits 1 and BB in this matter.
She arrived approximately 15 minutes prior to the commencement of the concert. Mrs. Powers, who was 64 years old, and her friends, Rose Brennan, Lora Efinger, Susan Ficklen, Dr. Donald Broughton and his wife greeted each other on the concourse outside the restrooms. The concourse level is just above the level where the concert participants perform. Mrs. Powers testified that while she was talking, she was standing threetofour feet from the entrance to the women's restroom which was on her right and behind one of her friends, who was standing to her right. Just before the concert was about to begin, Mrs. Powers turned right to enter the restroom and glanced down at the floor. She testified she noticed the tiles on the restroom floor before she stepped but not the height difference where the tiles began. With her first step, she stumbled on the lip of the tile at the bathroom entrance which was 7/16 of an inch higher than the concrete floor of the concourse. In her deposition of March 27, 2012, Mrs. Powers said she felt her toe catch on something. Mrs. Powers was wearing flat Teva sandals with a thick sole at the time.
Ms. Ficklen and Dr. Broughton both witnessed the event and testified at trial that Mrs. Powers tripped over the lip or edge of the tile at the entry to the restroom that was higher than the concrete floor on the concourse. Not being able to right herself, Mrs. Powers was propelled off balance down the hallway into the restroom colliding with the towel dispenser on the side wall, the garbage can, and the far wall, before finally falling to the floor. Ms. Efinger had turned to leave so she did not see Mrs. Powers trip, but heard the commotion and Mrs. Powers fall. All of the witnesses placed the location of her fall between 10–to–15 feet from the entryway. The actual distance measured 13.5 feet from the edge of the tile to the towel dispenser at the far end of the entryway. Mrs. Powers was taken to a local hospital by ambulance for a fractured right humerus. She was treated and released.
The State called Matthew Barbeau, who, at the time of the accident, was an officer with the Oswego State University Police. At the time of trial, he had been promoted to lieutenant (Lt.). Lt. Barbeau was dispatched to the Campus Center to investigate Mrs. Powers' accident. When he arrived, an EMT was tending to Mrs. Powers, so Lt. Barbeau did not speak with her. He did speak with Rose Brenner about the incident and then checked the area for any abnormalities with the floor to see what may have caused Mrs. Powers to trip. He said he found nothing. At trial, he could not recall if he noticed the flooring height difference from the concrete floor and the tiled restroom. He also testified that he searched the University Police database for any other trip and fall cases between the date of this incident until approximately one month prior to trial and did not find any. However, Lt. Barbeau also acknowledged that not all accidents would be reported to his office.
The testimony was uncontroverted that Mrs. Powers caught her toe on the raised edge of the tile at the restroom entrance. Ms. Efinger testified that the color difference between the tile and the concrete floor of the concourse was noticeable. Mrs. Powers also acknowledged the color difference in photographs during her March 27, 2012, deposition, but maintained she never saw the height differential or the edge of the tile the day of the accident.
The Campus Center is a multipurpose facility with a hockey arena and convocation area designed to hold between 2,500 and 4,500 people. Construction of the Center began in 2004 and after issuance of the certificate of occupancy on October 25, 2006, it opened to the public, about eight months before Mrs. Powers' accident. The State University Construction Fund (SUCF) funds, lets, and manages construction projects on behalf of SUNY. SUCF hired Cannon Design, Inc. (Cannon), an architectural engineering firm, to be the architectural consultant and SUCF's representative on this construction project. Cannon wrote the specifications, drew the building plans, prepared the bid documents, supervised the bidding process, and provided general administration and inspection of the construction through completion. The construction contract was awarded to Sarkisian Brothers, Inc. (Sarkisian) as the general contractor.
See Exhibits 19 and O.
After the initial construction contract was signed in June 2004, a change order was made in May 2006, to provide tile floors in the concourse level bathrooms, including the women's room where Mrs. Powers fell. Cannon also wrote the specifications for the tile installation. Sarkisian hired Carpets Wholesale (Carpets), to install the tile in the bathrooms and Carpets subcontracted the job to J.B. Tile.
Exhibit R.
Exhibit K.
Exhibit 18.
The women's restroom, where Mrs. Powers fell, was identified as Room C–127, and the men's adjoining restroom was C–125 on the architectural drawings for the Campus Center. These restrooms were designed without doors to accommodate a large influx of people. The women's restroom shared the entrance with the men's room, separated by a wall, set back a few feet from the beginning of the tile floor. A sign, about 5 feet high on that wall, directs one to proceed to the left to enter the women's room and to the right for the men's room. The original design specifications provided for a continuation of the concrete flooring in the concourse for these restrooms. When extra funding was identified for the project, the change order was requested by SUNY Oswego to add the tile floors.
Exhibit 21.
Claimant's expert, Martin A. Zelnik, is a licensed and practicing architect, an interior designer, and a retired professor of Interior Design at the Fashion Institute of Technology, State University of New York. He has been a practicing architect for 34 years. He has coauthored three professional reference books in the area of interior design and space planning, specifically the relationship of the human body to interior environments. Mr. Zelnik visited the site of the accident, took measurements and photographs of the accident site and other locations in the Campus Center.
In describing the area where Mrs. Powers tripped, Mr. Zelnik noted that in his design experience, the absence of doors on these restrooms was for high-volume traffic. It was his opinion that, in general, when a person is looking for a public restroom, the person's focus is on the signage and graphics so as not to enter the wrong room. In this case, the entrance to the men's and women's restrooms were adjoining with the restroom signs approximately 5 feet off the ground, near eye level. Mr. Zelnik testified that, typically, people do not look at the ground when they walk unless they are expecting an unusual topographical or geographical anomaly such as a rocky or gravel area.
The vertical height differential between the concrete floor and the tile floor in the restroom measured 7/16 of an inch. Mr. Zelnik opined that it is not an acceptable architectural practice to have an abrupt change in floor levels because it is a tripping hazard, among other things, and should be avoided at all costs. Furthermore the Americans with Disabilities Act (ADA), American National Standards Institute (ANSI), and the Tile Counsel of America (TA) all have the same standards for height differentials in flooring. The ANSI standards are incorporated into the New York State Building Code. These standards require any height differential greater than 1/2 inch to be angled, as in a beveled edge, with a 1–inch vertical rise to a 2–inch horizontal slant or have a threshold. The entryway in this case did not meet any of these standards. The plan specifications for the tile to be installed in the Campus Center required stone thresholds in compliance with the Building Code standards. Mr. Zelnik testified there were no stone thresholds at the entrance to the restroom where Mrs. Powers fell.
Exhibit 18.
Mr. Zelnik acknowledged that the tile edge had been eased slightly, but he testified it was not beveled, and was not at a 1:2 vertical-horizontal slope. Some of the other witnesses describe the edge of the tile as bull-nosed, but Mr. Zelnik disagreed. Although a bull-nosed edge properly fabricated could meet the plan specifications, Mr. Zelnik testified the edge on this tile did not. From the photograph he took, he also felt there was little color contrast between the concrete and the tile.
The deposition testimony of Frank Sica was stipulated into evidence in lieu of his appearance. Mr. Sica is a licensed architect, employed by Cannon, and was in charge of overseeing the Campus Center construction as the project manager. Mr. Sica testified that Cannon was the “consultant” referred to in the construction contract between the general contractor, Sarkisian, and SUCF for the Campus Center Project. Section 2.01 of that contract describes Cannon's duties and responsibilities for the project which include acting on behalf of the SUCF in overseeing the contract work and insuring that the work performed was in keeping with the specifications. The contract also states that Cannon would not be responsible for the contractor's failure to carry out the work in accordance with the contract documents. Mr. Sica also testified Cannon was not responsible for identifying incomplete work or for Code compliance.
Exhibit 3.
During his deposition, Mr. Sica reviewed numerous exhibits and testified that when the contract change order was signed to provide tile floors in the concourse level bathrooms, Cannon prepared the document “Ceramic Tile Specifications” and required stone thresholds to be installed. Thresholds are used to ease the transition when there is an elevation difference in the flooring, as there would be when the tile was placed on top of the concrete flooring.
Exhibit 28.
At his deposition, Mr. Sica also reviewed a page of blueprints for the project identifying the location for the change in the flooring. The blueprint was not included in trial Exhibit 18, but during the deposition, Mr. Sica verbally identified that the stone thresholds were to be installed at the relevant restroom entrances from the concourse, as set forth on the ceramic tile specifications. Despite these specifications, Sarkisian deviated from the plan and ordered bull-nosed tile but no thresholds . Mr. Sica testified the tile specifications required if there is up to a½ inch difference in floor elevations, a transition must be used between the floor materials. If the difference in floor elevations is greater than½ inch, a “ramp” is used, which Mr. Sica said was a transition between different floor elevations, accommodating movement from one floor elevation to another.
Exhibit 3, pp. 60–65, and Exhibits N and 18.
The deposition testimony of Ozzie Calabrese, the project manager for Carpets was admitted into evidence. See Exhibit AA, p. 21, indicating no thresholds were ordered and Sarkisian changed the thresholds to bull-nosed tile.
At the end of the project, two punch lists were generated by Cannon that included general comments about items that needed to be completed or repaired. Mr. Sica said those lists dated October 4 and October 25, 2006, included installing thresholds. The lists were distributed to Sarkisian, SUCF, and SUNY Oswego. The lists, made a part of Exhibit 18, include a copy of the October 4 list which was “marked up” reflecting that the item denoting the need to add thresholds was crossed off. Mr. Sica testified that items marked with a horizontal line signified the work was completed, but he did not know if thresholds were actually placed at the restroom entrance where Mrs. Powers fell. Mr. Sica also indicated that the markings on that October 4 list were made by a SUCF representative, he thought, some time in early 2007. A letter from Mr. Sica to Tom Jablonka from Sarkisian dated March 19, 2007, reflects outstanding items needing repair or completion for the project but installation of thresholds is not noted.
Deposition Exhibit 12, as part of Claimant's trial Exhibit 18.
See also Exhibit 3, pp. 106–108, reference to the deposition Exhibit 12, also Claimant's trial Exhibit 24.
Exhibit F.
Mark Kentile, the Deputy Director of the SUCF, testified at trial that at the time of the Campus Center construction, he was the Assistant Project Coordinator for SUCF, and the Code Compliance Officer for the project. As such, he was responsible for issuing a Certificate of Occupancy for the facility upon confirmation from Cannon that the contract was complete and complied with the New York State Building Code. He opined that Cannon was responsible for ensuring that the construction met the Building Code standards.
During construction, Mr. Kentile would attend project meetings at the site every other week. His role was to manage Cannon and Sarkisian for timely completion of the project. He said it was Sarkisian's duty to provide a defect-free building, and Cannon's duty to verify that the work was done in conformity with the design plans. Mr. Sica indicated a different understanding of Cannon's responsibility, specifically, that Cannon did not have to identify incomplete work or work that did not comply with applicable codes. Mr. Kentile's understanding is more in line with the consultant contract and SUCF's authority to interpret the contract.
Exhibit 3, p. 112, lines 7–22.
Exhibits 19 and O, see pages AA–4, AA–6, and AA–8.
On October 11 and 25, 2006, Mr. Kentile along with Thomas Simmonds, a representative of SUNY Oswego, who is New York State Code certified; Mr. Sica, on behalf of Cannon; and T. Jablonka, from Sarkisian, inspected the project. On October 16, 2006, John Hagen from SUCF sent a letter to the President of SUNY Oswego saying a partial inspection was done, and the project was partially accepted subject to the punch list, presumably dated October 4, 2006. A temporary certificate of occupancy was issued. Mr. Kentile said the punch list of October 4 was superceded by the October 25 list. A marked up copy of the October 4 punch list was reviewed by Mr. Kentile, but he did not know who crossed off items or why. By letter dated December 4, 2006, sent to Sarkisian and Cannon by Hagen, the project was accepted subject to the October 25, 2006 punch list, and the college became solely responsible for the operation, maintenance, and security of the facility. A Certificate of Occupancy was issued effective October 25, 2006.
Exhibit D.
Mr. Kentile said he was familiar with the New York State Building Code but was not an expert. He agreed that the Code requires amelioration of elevation differentials to avoid tripping hazards.
John Mitchell Fields, currently the Associate Vice President for Facility Services at SUNY Oswego, testified. His current responsibilities include comprehensive oversight, maintenance, and upkeep of the academic and residence hall facilities. He holds professional degrees in both architecture and civil engineering. He has been employed by the college since April 26, 2013, but was at SUNY Oswego as Capital Program Manager with SUCF since September 26, 2012. He was the Capital Program Manager with SUCF during the development and completion of the Campus Center project and served as a liaison between SUNY Oswego and SUCF.
He identified a number of photos showing the women's restroom C–127. Mr. Fields denied receiving any complaints or reports of people tripping at that location other than Mrs. Powers. He described the tiles as textured, not polished like the concourse.
Exhibit T.
Thomas Simmonds, at the time of this project, was Director of Facilities Design and Construction at SUNY Oswego, and oversaw all capital improvement projects on campus. His deposition was admitted in evidence. Mr. Simmonds testified that whether the construction of the Campus Center met the design requirements was the co-responsibility of his department and SUCF, but Cannon had the primary responsibility to ensure the project met specifications. Mr. Simmonds also testified that SUCF representatives were on campus during the building of the Campus Center on a day-to-day basis, paid by the State of New York, for compliance with the design requirements. Mr. Simmonds also participated in the walk-through with the representatives from Cannon, Sarkisian, and SUCF on October 11 and 25, 2006.
Exhibit 2.
DISCUSSION
To establish a prima facie cause of action for negligence, it is Claimant's burden to show, by a preponderance of the evidence, that Defendant owed a duty to the injured party, breached its duty, and that breach proximately caused the injuries (Pulka v. Edelman, 40 N.Y.2d 781, 782 [1976] ).
The State of New York, as a landowner, owes a duty to those entering upon its property, the same duty as any other landowner, namely, to exercise reasonable care under the circumstances to maintain its property in a reasonably safe condition (Preston v. State of New York, 59 N.Y.2d 997 [1983] ; Basso v. Miller, 40 N.Y.2d 233 [1976] ; Tuttle v. State of New York, 277 A.D.2d 1055 [4th Dept 2000] ).
Where the State opens its property to use by the general public, the State's duty to keep its property in a reasonably safe condition is nondelegable and may open the State to vicarious liability for the actions of an independent contractor (Gerbino v. Tinseltown USA, 13 AD3d 1068, 1071 [4th Dept 2004] ; Rosenberg v. Equitable Life Assur. Socy. of U.S. 79 N.Y.2d 663, 668 [1992] ; Thomassen v. J & K Diner, 152 A.D.2d 421 [2d Dept 1989] appeal dismissed 76 N.Y.2d 771 [1990], rearg. denied 76 N.Y.2d 889 [1990] ). The landowner's duty to maintain its premises in a reasonably safe condition where the use of the property by the general public is foreseeable and welcomed cannot be delegated to employees, agents, or independent contractors (Thomassen, 152 A.D.2d at 424 ).
The basis for this claim is not the design or means or quality of the tile installation in this bathroom, but the unilateral determination by Sarkisian to change from the stone thresholds required by the plan specifications to an eased or “bull-nosed” tile edge at this location. Although, undisputedly, the stone thresholds required by the design plans created by Cannon were in compliance with the applicable building codes, the tile actually installed at the entrance to this bathroom did not comply with the Building Code and, Claimant argues, created a dangerous condition that caused her to trip and fall. Failure to comply with the applicable building codes does not establish a breach of Defendant's duty; however, it is some evidence of negligence (see Romanowski v.. Yahr, 5 AD3d 985, 986 [4th Dept 2004] ; Elliott v. City of New York, 95 N.Y.2d 730, 734–735 [2001] ).
The question is whether the height differential posed by the installation of this tile without a threshold was a dangerous condition. This determination depends upon consideration of a number of factors including the configuration of the defect, the injured party's familiarity with the area, the length of time the condition has been present, whether any prior accidents occurred, the nature of the area surrounding the defect, and the lighting of the area at the time of the injury (Lupa v. City of Oswego, 117 AD3d 1418 [4th Dept 2014] ; Wilson v. 100 Carlson Park, LLC, 113 AD3d 1118 [4th Dept 2014] ; Zammiello v. Senpike Mall Co. 5 AD3d 1001, 1002 [4th Dept 2004] ; Wilson v. Time Warner Cable, 6 AD3d 801 [3d Dept 2004] ; McKenzie v. Crossroads Arena, 291 A.D.2d 860 [4th Dept 2002] ). In Trincere v. County of Suffolk, 90 N.Y.2d 976 [1997], the Court of Appeals indicated that the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' of the injury” were to be considered (Id., at 978, quoting Caldwell v. Village of Is. Park, 304 N.Y. 268, 274 [1952] ; Lamarre v. Rensselaer County Plaza Assoc., 303 A.D.2d 914 [3d Dept 2003] ). In short, whether the condition is dangerous “depends on the peculiar facts and circumstances of each case' and is generally a question of fact” (Trincere, 90 N.Y.2d at 977, quoting Guerrieri v. Summa, 193 A.D.2d 647 [2d Dept 1993] ).
The Court of Appeals has recently reiterated the need to consider the Trincere factors in Hutchinson v. Sheridan Hill House Corp ., 26 NY3d 66 [2015] and emphasized that the dimensions of the defect alone cannot determine liability which must be based upon all the specific facts and circumstances of the case (Id. at 77 ). Nor does liability turn “ upon whether the hole or depression, causing the pedestrian to fall, ... constitutes a trap.' (Loughran v. City of New York, 298 N.Y. 320, 321–322 [1948] )” (Hutchinson at 78). Rather, even slight defects may be actionable when other factors make the defect difficult to see or traverse safely (Id. at 79 ).
Here, Mrs. Powers was in an unfamiliar, newly constructed building trying to get to the restroom a short time before the event she wanted to attend began. Mr. Zelnik opined that, generally, people trying to locate a public restroom tend to look at the signage not at the floor. The configuration of this restroom entrance, as Mr. Zelnik opined, contributed to the need to focus on the signs. The wall separating the men's room from the women's room is recessed, about 2 feet from the concourse, requiring reference to the signs in order to discern which side of the wall is the women's bathroom. Moreover, tile begins where the concourse wall ends and continues across the unimpeded opening for both the women's and men's rooms. It is approximately 2 feet out from the recessed wall separating these bathrooms. The bathrooms were designed for ease of movement for large crowds, circumstances where patrons may be in a hurry, and not have a clear view of the tile and/or the height difference. Unlike an outdoor walkway, in an inside venue, changes in flooring height are not typical or expected and, as all the architects acknowledged, create a tripping hazard. Mrs. Powers was only a step away from the entrance when she turned to enter the restroom, so to view the tile edge she would have had to look down at her feet. Here, the abrupt edge of this tile, as opposed to the smooth, level, consistent concrete flooring Mrs. Powers had encountered from her arrival at this facility caught the edge of her sandal as she proceeded to the bathroom just prior to the commencement of the concert (see Elliott v. East 220th St. Realty Co. 1 AD3d 262 [1st Dept 2003] [step defect so sharp and abrupt shoe heel could become caught]; Glickman v. City of New York, 297 A.D.2d 220 [1st Dept 2002] [shallow depression in parking lot potentially actionable defect where person's attention focused on traffic instead of ground]; Argenio v. Metropolitan Transp. Auth. 277 A.D.2d 165 [1st Dept 2000] [depression in floor may constitute a tripping hazard where it was located in heavily traveled area where observation of defect less likely]; Tesak v. Marine Midland Bank, 254 A.D.2d 717 [4th Dept 1998] [sidewalk crevice could constitute actionable trap because it was so close to bank entrance where patrons attention drawn to the door not the sidewalk] ). Under these circumstances, combined with the violation of the Building Code evidencing some negligence, the Court finds that the defect is not trivial, and posed a dangerous condition.
Proof that a dangerous condition existed is not alone sufficient to support liability, there must also be proof that the Defendant created the dangerous condition, or had actual or constructive notice of the condition and failed to take any action to ameliorate the danger before the injuries occurred (Quinn v. Holiday Health & Fitness Ctrs. of NY, Inc., 15 AD3d 857 [4th Dept 2005] ; Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967 [1994] ).
The State argues that even if the tile edge was a dangerous condition, it lacked notice. The evidence, however, supports that the State had constructive, if not actual notice of the lack of thresholds at the entrance to this bathroom.
The SUCF, is a statutory agent for SUNY Oswego with the statutory authority to fund, construct and manage the Campus Center Project (Education Law §§ 371, 376 ). Contractually, Cannon had the primary responsibility to insure that the building construction complied with the plan specifications and the Building Code but, according to Mr. Simmonds, both SUCF and SUNY Oswego also had that obligation. As of October 16, 2006, both SUCF and SUNY Oswego were made aware that the thresholds had not been installed as shown on the October 4, 2006 punch lists. An additional walk-through on October 25, 2006, with the punch list should have alerted them to check for compliance. Moreover, Mr. Kentile of SUCF was the Code Compliance Officer for the project. He received a copy of the punch lists, noting the absence of thresholds, participated in the walk-through inspections and was responsible for issuing the Certificate of Occupancy. Although Mr. Kentile knew that the Building Code required some transition for flooring height differentials to avoid tripping hazards, he issued the Certificate of Occupancy on October 25, 2006, without the thresholds being in place.
Exhibit R.
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Although other complaints or injuries from the absence of a threshold at this location would have provided Defendant with actual notice of the tripping risk posed by the height differential, Claimant's burden does not require proof of the dangerous nature of the condition, but only notice of the condition (Harris v. Seager, 93 AD3d 1308, 1309 [4th Dept 2012] ).
In any event, since this facility was clearly designed for the purpose of being open to the general public, and Mrs. Powers was clearly a member of that class, creation of this dangerous condition by Sarkisian's failure to comply with the design specifications, and install thresholds, does not relieve the State of its liability—even if its negligence is only vicarious or passive (see Giacometti v. Farrell, 133 AD3d at 1387, 1390 [4th Dept 2015]; Backiel v. Citibank, 299 A.D.2d 504, 507–508 ).
Although Claimant has established the liability of the State for this dangerous condition, so to has Defendant established Mrs. Powers' comparative negligence. The lighting in the area of this restroom was adequate and the coloring of the flooring, contrasted with the color of the concrete which Mrs. Powers noted, should have alerted her to the different flooring in the bathroom. Proceeding in a slower and more cautious manner may have prevented her tripping or at least permitted a more controlled fall without the projected momentum that resulted in her collision 13.5 feet down the hall into the towel dispenser and the wall.
Based upon the foregoing the Court finds both Claimant's decedent and Defendant 50 percent at fault for this accident.
All motions not hereinbefore decided are hereby DENIED.
A trial on the issue of damages shall be scheduled as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.