Opinion
# 2013-038-103 Claim No. 117418
06-03-2013
VIRGINIA NOTO v. CITY UNIVERSITY OF NEW YORK
Synopsis
Liability found for claim for injuries sustained when claimant stepped in a hole on a concrete pathway. Hole was of sufficient width and depth to be considered a dangerous condition. Claimant found 40% comparatively negligent for failing to use adequate care when walking on sidewalk that she knew to be in "disgraceful" condition.
Case information
UID: 2013-038-103 Claimant(s): VIRGINIA NOTO Claimant short name: NOTO Footnote (claimant name) : Defendant(s): CITY UNIVERSITY OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117418 Motion number(s): Cross-motion number(s): Judge: W. BROOKS DeBOW JONATHAN D'AGOSTINO & ASSOCIATES, P.C. Claimant's attorney: By: Edward J. Pavia Jr., Esq. ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Suzette Corinne Rivera, Assistant Attorney General Third-party defendant's attorney: Signature date: June 3, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant seeks to recover damages for injuries she sustained on October 20, 2008, when she tripped and fell on a concrete pathway on the campus of College of Staten Island ("CSI") in Staten Island, New York. The trial of liability on this claim was conducted on January 23, 2013 in New York, New York. Claimant presented her testimony and that of Vincent Bono, the Administrative Superintendent of Buildings and Grounds at CSI, and Vladimir Shikhman, a CSI student who was in the vicinity at the time of claimant's fall. Defendant presented the testimony of Sergeant Charles Carlino, a CSI public safety officer who responded to claimant's accident. Numerous photographic exhibits and a copy of the incident report that was generated by the CSI Public Safety Department were received into evidence. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court finds that defendant is liable to claimant for 60% of her damages.
The CSI is a senior college of CUNY, and the Court of Claims has exclusive jurisdiction to hear this claim (see Education Law §§ 6202[5] and 6224[4]).
Claimant drove to the CSI campus on the morning of October 20, 2008 to attend a class in Building 1-P. She parked her vehicle in a parking lot near Building 1-P and proceeded to class without incident. At approximately 1:00 p.m. following her class, claimant walked to the café in Building 1-L, and then left through the rear exit of Building 1-L, intending to return to her vehicle. Shortly after leaving Building 1-L, she stepped in a hole in a concrete pathway, her foot twisted in a direction opposite to her leg, and she fell and was injured. The weather that day was fair, and claimant testified that she was wearing loafers and that her pace as she walked along the pathway was "leisurely" (T:13). Claimant testified that she had walked in the area of her fall on three or four previous occasions, and that the pathway was in "very poor" condition, was "[b]roken up, [had] wide gaps, deep holes, loose concrete," was in "disgraceful" condition (T:17-18), and had "many, many deep holes." (T:25). Claimant's son took photographs of the area behind Building 1-L on the day of her accident, which were admitted into evidence as claimant's Exhibits 2 through 11.
All references to the trial transcript are designated by "T."
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Immediately outside the rear exit of Building 1-L were picnic tables with benches where students and other individuals were congregated, and to the left of the rear exit there was an asphalt loading dock area. Claimant walked out the rear exit of Building 1-L and past the picnic tables, and followed a concrete path that curved to the right around the perimeter of the loading dock area and adjacent to it. The path had cracks and broken pavement in many places, as clearly shown in Exhibits 2, 3 and 7. Claimant testified that she "fell into a hole" that she described as five or six inches wide, and two to three inches deep (T:14-15).
At trial, claimant identified the location of her fall on Exhibit 2, with reference to a specific spot of cracked and broken pavement where she had placed her initials during her examination before trial (EBT). Facing the rear of Building 1-L, that location is near a garbage dumpster at the far left side of the loading dock area. Although this location is a considerable distance from the rear exit of Building 1-L, claimant had testified at her EBT that she was 20 feet away from Building 1-L when she fell (T:32-33).
Vladimir Shikhman, a CSI student, was sitting at a picnic table outside the rear exit of Building 1-L at the time of claimant's accident, but he did not see her fall. Hearing her scream, he looked over his shoulder and saw claimant on the ground in pain and went to her aid. Shikhman testified that claimant was lying on the ground at the location near the dumpster that she had identified on Exhibit 2, and he also testified that the location where claimant fell was between 20 and 40 feet from the picnic tables (T:68 and T:77).
Vincent Bono, CSI Administrative Superintendent for Buildings and Grounds, testified that the spot by the dumpster that was initialed by claimant on Exhibit 2 was between 100 and 125 feet from the picnic tables. Sergeant Charles Carlino of the CSI Public Safety Department, who responded to claimant's accident that day, estimated that location to be between 50 and 75 feet from the rear exit.
CSI Public Safety Officer Doreen Batista was the first officer to respond to claimant's accident, and in the Incident Report that she completed following her encounter with claimant, Batista stated that she "arrived to [sic] the building 1-L loading dock and observed [claimant] lying on the ground" (Claimant's Exhibit 1). The following comments by Sgt. Carlino were incorporated into the Incident Report: "[Claimant] stated that she fell on a peice [sic] of broken concrete on the pathway. The pathway showed that a piece was broken in the area of the incident. See photos" (id.). The photographs that Sgt. Carlino took that day were made part of the Incident Report, and were entered into evidence as defendant's Exhibits A and B.
Sgt. Carlino testified that when he arrived on the scene, he found claimant lying on the ground in a location that was on the opposite end of the loading dock area from the spot that claimant identified as the location of her fall. He testified that the location where claimant fell was 25 to 35 feet from the rear exit of Building 1-L, and at trial, he drew a red circle on Exhibit 3 to identify where he found claimant lying on the concrete.
Sgt. Carlino and Bono both testified that claimant's Exhibit 2 showed the condition of the concrete pavement near the loading dock on the day of claimant's accident, and both testified that they had not received any prior complaints of accidents or people falling in that area. Bono acknowledged that the concrete path shown in claimant's Exhibit 2 was in poor condition, and that it had "cracks and holes and divots" (T:49-50) that had been present for at least 3 months preceding claimant's fall. Sgt. Carlino did not measure the holes depicted in Exhibits A and B, but he found the pathway to be sufficiently defective to warrant a report to the CSI Buildings and Grounds Department.
DISCUSSION
To establish defendant's liability in this claim, claimant must prove the existence of a dangerous condition, that the State either created or had actual or constructive notice of the condition, that it failed to remedy or warn of the dangerous condition, and that such failure was a proximate cause of claimant's injuries (see Medina v Sears, Roebuck & Co., 41 AD3d 798, 799 [2d Dept 2007]; Haseley v Abels, 84 AD3d 480, 482 [1st Dept 2011]; Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). A claim must be proven by a preponderance of the credible evidence (see Panebianco v State of New York, 38 Misc 3d 1218 [A], 2012 NY Slip Op 52439 [U], *5 [Ct Cl 2012]; Anonymous v State of New York, 37 Misc 3d 1224 [A], 2012 NY Slip Op 52159 [U], *5 [Ct Cl 2012]).
At the threshold, the Court must make a finding as to the location of claimant's fall, inasmuch as claimant and Shikhman testified that she fell near the dumpster, while Sgt. Carlino testified that she fell much closer to the rear exit of Building 1-L. For the reasons that follow, the Court finds that the location of claimant's fall is shown in claimant's Exhibit 3, at the location that was circled by Sgt. Carlino.
The Incident Report merely stated that claimant was found lying on the ground at the "building 1L loading dock" (Exhibit 1). Sgt. Carlino credibly testified that he took the photographs of the holes that were entered into evidence as Exhibits A and B because those were the defects that claimant "pointed to where she fell" (T:86; T:94), and that he would not have taken those pictures if he had not been told that that was the location of the fall. His testimony that claimant had fallen at that location was supported by his specific recollection that he had parked his vehicle in the vicinity of the picnic tables because that was closest to the accident scene, and he would have parked elsewhere if claimant had been lying close to the dumpster.
Although claimant and Shikhman both testified that claimant fell near the dumpster, claimant, Shikhman and Sgt. Carlino all testified that she fell at a spot that was between 20 and 40 feet from the rear of Building 1-L, and Sgt. Carlino and Bono both credibly testified that the location near the dumpster was substantially further than that, and their testimony is supported by the pictures in evidence, particularly claimant's Exhibits 2 and 8.
The Court notes that although claimant's testimony was quite sincere, her testimony regarding the location of her fall is difficult to credit because during her testimony, her identification of the location of her fall was inconsistent. In particular, claimant was shown four photographs taken from different angles of the location near the dumpster where she said she fell (see Exhibits 4, 5, 7 and 11), but she testified that two of those photographs did not show the specific place where she fell, even though the photographs do, in fact, include the specific defect that claimant identified in Exhibit 2 (see T:25, 26; Exhibits 7 and 11). Thus, the Court finds that the preponderance of the credible evidence demonstrates that claimant fell at the location circled by Sgt. Carlino in red on Exhibit 3. Comparison of that photograph with Exhibits A and B demonstrates that claimant fell in the hole that is depicted in Exhibit B.
The photographic evidence and claimant's testimony demonstrate that the hole was jagged and irregularly shaped with a width and depth that was not insignificant, such that it was more than a trivial defect. Specifically, the hole's substantial width can be discerned from Exhibit 3, and likewise from Exhibit 6 at a different angle. Moreover, the hole's not insignificant depth can be discerned from Exhibit B, in which a shadow can be seen along one edge of the hole, and Exhibit 6, in which an abrupt ridge can be seen along the opposite edge of the hole. Claimant's testimony that the hole was five or six inches wide and two or three inches deep, and that she fell into it - as opposed to tripping on it - and that her foot was caused to twist in a direction opposite to her leg is entirely consistent with the photographic evidence of the hole in Exhibits 3, 6 and B.
Thus, the photographic evidence combined with claimant's testimony preponderates in favor of a finding that the irregularly shaped hole that claimant stepped into was of sufficient width and depth to be a dangerous condition (see Trincere v County of Suffolk, 90 NY2d 976, 978 [1997]), and that the dangerous condition caused claimant's fall. The preponderance of the credible evidence further demonstrates that the dangerous condition existed for at least several months prior to claimant's accident and thus, defendant is charged with constructive notice of the defect. Finally, the preponderance of the credible evidence establishes that defendant's negligent maintenance of the pathway was a proximate cause of claimant's injuries, and accordingly, defendant is liable to claimant.
However, the Court finds that claimant was comparatively negligent, and will attribute 40% of the liability for her injuries to her. Specifically, although claimant testified that she was wearing sturdy, flat shoes and was walking at a leisurely pace at the time of her fall, she also testified that she had used the concrete pathway on several prior occasions. She described the pathway as being in extremely poor - "disgraceful" - condition with numerous deep holes and loose concrete. Given her manifest awareness of the poor condition of the sidewalk, the fact that her fall was caused by a hole that was of significant size, and that the fall occurred in the middle of a fair day while claimant was walking at a leisurely pace, the Court is of the view that she failed to exercise due care while walking on that walkway, and that her failure to do so was a contributing factor to her fall and the injuries she sustained.
CONCLUSION
It is the conclusion of this Court that defendant was negligent and is liable to claimant, with liability apportioned 60% to defendant and 40% to claimant. Any motions or objections not previously ruled upon are hereby DENIED. The claim will be scheduled for a trial of damages as soon as practicable.
Let interlocutory judgment be entered accordingly.
June 3, 2013
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims