Opinion
# 2015-041-516 Claim No. 121846
12-21-2015
JOHN DEPALMA v. THE STATE OF NEW YORK
FRANZBLAU DRATCH, P.C. By: Ekaterina Vyrkin, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General
Synopsis
Trip and fall claim dismissed after trial where claimant failed to prove how he injured his leg and failed to prove that a dangerous condition existed and was a proximate cause of his injury.
Case information
| UID: | 2015-041-516 |
| Claimant(s): | JOHN DEPALMA |
| Claimant short name: | DEPALMA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121846 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | FRANZBLAU DRATCH, P.C. By: Ekaterina Vyrkin, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 21, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
John DePalma (claimant) was a state prison inmate at Greene Correctional Facility (Greene) on October 26, 2010. He injured his right leg while playing in an organized recreational game of volleyball that day. Trial of Mr. DePalma's claim was conducted on June 6, 2015. Two witnesses testified - Mr. DePalma and Gerry Ersken, a recreational program supervisor at Greene who was present in the Greene south gymnasium at the time claimant was injured.
The claim alleges that claimant was injured when he tripped and fell due to a dangerous condition that defendant had created in arranging the volleyball court that day: Specifically, in placing the left stanchion holding up the volleyball net upon a rubber mat "which caused an obstruction in the field of play." The mat had been placed under the stanchion's round base to protect the gym's hardwood floor.
Claimant testified at trial that he was aware of the presence of the rubber mat, that it was black, that it did "stand out" against the "yellow" gym floor, and that he had been playing "between ten to forty minutes" before his injury.
The claim sounds in premises liability: "As a landowner, [defendant] owes the same duty of care as that of a private individual: the duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition" (Mesick v State of New York, 118 AD2d 214, 216-217 [3d Dept 1986], lv denied 68 NY2d 611 [1986]; see Preston v State of New York, 59 NY2d 997, 998 [1983]). However, "[w]hile the State clearly owes a duty to claimants and others entering upon its property to maintain it in a reasonably safe condition under the circumstances, it is not obligated to insure against every injury which may occur" (Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]).
In a trip and fall case, "claimant has the burden of establishing a dangerous or defective condition that defendant created or had knowledge (actual or constructive) of, and that such condition was a cause of the accident" (Gonzalez v State of New York, 60 AD3d 1193, 1194 [3d Dept 2009], lv denied 13 NY3d 712 [2009], rearg denied 15 NY3d 820 [2010]; see Seaman v State of New York, 45 AD3d 1126, 1127 [3d Dept 2007]; Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Malossi v State of New York, 255 AD2d 807, 807 [3d Dept 1998]).
The existence of a dangerous condition is generally a question of fact dependent upon the particular facts and circumstances of each case (Moons v Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]). Provided, however, as the Court of Appeals explained in Trincere v County of Suffolk (90 NY2d 976, 977-978 [1997]), an alleged dangerous condition can be so trivial as to be nonactionable as a matter of law.
Further, the defendant's liability for a trip and fall is premised upon proof that it either created the alleged dangerous condition or knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New York, 188 AD2d 918, 919 [3d Dept 1992]).
Where there is insufficient proof that the defendant created or had actual notice of the condition, liability turns on the issue of whether defendant had constructive notice. "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 defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Moons v Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]).
Finally, the law provides that "the open and obvious nature of an allegedly dangerous condition does not, standing alone, necessarily obviate a landowner's duty to maintain his or her property in a reasonably safe condition" (MacDonald v City of Schenectady, 308 AD2d 125, 127 [3d Dept 2003]), although such a finding would negate any duty of defendant to warn of the dangerous condition (Soich v Farone, 307 AD2d 658, 659 [3d Dept 2003]) and, additionally, relates to the issue of the claimant's comparative negligence pursuant to CPLR § 1411 (Tulovic v Chase Manhattan Bank, N.A., 309 AD2d 923, 924 -925 [2d Dept 2003]).
At trial, claimant's testimony was often imprecise and, in certain respects, materially differed from his claim, his examination before trial, certain documentary evidence, and the testimony of Mr. Ersken. When asked at trial to describe the events leading to his injury, claimant testified, "I jumped up to hit the ball and when I came down, I landed on the square mat that was underneath the round pole on the left hand side . . . [m]y toes landed on the mat, the palm or the toes of my foot and then the heel landed on the hardwood floor" (Trial Transcript [TT], p 17). He describes falling immediately and being unable to get up.
Claimant's rather specific trial testimony concerning the manner in which he was injured significantly differed from several other accounts of his injury:
1. The claim, filed on October 10, 2012, described the incident as "claimant was caused to trip and fall on a mat that was a substitute for the original mat that came with the volleyball net and poles" (Claim, paragraph 2, emphasis added);
2. Claimant's Ambulatory Health Record (Exhibit 2) entry for October 27, 2010 reads: "Twisted R leg last night at 7:15 p.m. while playing volleyball;"
3. Claimant's Inmate Injury Report dated October 26, 2010 (Exhibit 4), signed by the claimant, states: "Landed awkwardly on right ankle . . . Twisted ankle on floor injuring right lower calf. Landed on padding under volleyball stand;"
4. Claimant acknowledged at trial giving pretrial deposition testimony on March 26, 2014 in which he testified at that time that he did not know what caused him to fall (TT, pp 53-55);
5. Claimant confirmed that the injury report created the evening of his injury (Exhibit 4), a document he signed, made no mention of his foot landing half on and half off the rubber mat (TT, p 57); and,
6. Mr. Ersken testified to observing claimant coming into "contact with it [the 'volleyball pole'] and then walk away limping" (TT, p 84). This testimony was further supported by Exhibit 9, a memorandum on the incident Mr. Ersken prepared on December 1, 2010, which states: "On or about 10/26/2010 at 7:15 P.M. I observed inmate Depalma come in contact with the volleyball stanchion while playing volleyball in the south gym. Upon doing so Depalma walked away limping and complained of an injury to his leg. Depalma was then sent to the infirmary with an injury report."
The only proof claimant presented at trial which addressed the thickness of the rubber mat is a single testimonial sentence. When asked "Do you know approximately how thick it was," claimant responded: "Um, I would say two inches, somewhere around approximately two inches" (TT, p 15).
By contrast, Mr. Ersken was rather definitive about the thickness of the mat. At Trial Transcript page 72, lines 5-10, the following exchange takes place:
"Q: And do you recall approximately - - do you recall how thick the mat was?
A: Five-eighths of an inch.
THE COURT: Five- eighths? Not four-eighths, not six-eighths?
THE WITNESS: Nope."
Subsequent to claimant's injury, Mr. Ersken had measured a mat located in Greene's south gym of the same kind and type that had been used on October 26, 2010. He measured the mat to be five-eighths of an inch. Mr. Ersken further testified that Exhibit B (a photograph) accurately depicts a mat of the same color, material and thickness, although differing in length (TT, p 82, l 3-23). The Court credits Mr. Ersken's testimony concerning the thickness of the mat used in the Greene south gym on October 26, 2010.
Two other testimonial discrepancies between claimant and Mr. Ersken emerged concerning the size and positioning of the mat. Mr. Ersken testified the mat was approximately two and one-half feet square, and claimant testified the mat was between four and four and one-half feet square. Mr. Ersken testified that the mat protruded "a couple of inches or less" from beneath the stanchion base "in the direction of the playing area" (TT, p 103), and claimant testified that the mat actually protruded into the playing area "[p]robably only a few inches, maybe two to six inches" (TT, p 17). The Court credits Mr. Ersken's testimony concerning these testimonial discrepancies regarding the size and placement of the mat.
Mr. Ersken, recreational program supervisor at Greene since 1989, also testified that no similar injuries during volleyball play had ever before occurred, nor had any complaints concerning the condition of the mats, stanchions or volleyball court been previously reported.
The fact that claimant injured his right leg while playing volleyball, a game requiring running and jumping, starting and stopping, does not necessarily implicate defendant liability. Claimant must prove by a preponderance of the credible evidence that defendant created a dangerous condition, and that it was that dangerous condition which caused his injury. Claimant failed to prove either of those two required prongs, and that failure of proof requires that the claim be dismissed.
Initially, claimant failed to prove the thickness of the mat which lay beneath the left stanchion or prove its positioning relative to the playing area. His approximation that it was two inches thick is unsupported by any proof. Based upon Mr. Erksen's testimony and Exhibit B, the Court finds that the mat was five-eighths of an inch in thickness. The Court finds further that claimant was aware of its presence, that its black color was in stark contrast to the yellow gymnasium floor and that it was rubber in composition. Accordingly, the Court finds that the mat did not constitute a dangerous condition.
Further, and even more problematic for the claimant, even were the Court to have found that the dimensions and placement of the mat constituted a dangerous condition, claimant has failed to prove how his accident occurred. Left unproven were whether claimant was injured running or jumping, whether claimant was injured tripping over or landing on the edge of the mat, whether claimant simply twisted his leg or landed awkwardly after jumping and landing, and finally, whether claimant was injured after coming into contact with the mat or with the stanchion. Any of these circumstances, given the proof, would equally explain claimant's accident. None of them were proven by a preponderance of the credible evidence. Simply put, by failing to prove how and/or why he came to be injured, claimant has failed to prove that any condition defendant created, even if adjudged to be dangerous, was a proximate cause of his injury.
The claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
December 21, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims