Opinion
# 2012-028-528 Claim No. 120059 Motion No. M-81463
07-19-2012
HARRIS v. THE STATE OF NEW YORK
Synopsis
In slip and fall case, motion for summary judgment on the ground that the defect was de minimus and obvious is denied; factual issues must be decided at trial. Case information
UID: 2012-028-528 Claimant(s): HARRY HARRIS Claimant short name: HARRIS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 120059 Motion number(s): M-81463 Cross-motion number(s): Judge: RICHARD E. SISE MALLILO & GROSSMAN, ESQS. Claimant's attorney: BY: Ann Jen, Esq. HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: BY: Lori L. Pack, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: July 19, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read on Defendant's motion for an order of granting summary judgment dismissing the claim:
1. Notice of Motion and Supporting Affirmation of Lori L. Pack, AAG, with annexed Exhibits;
2. Affirmation in Opposition of Ann Jen, Esq., with annexed Exhibits.
Filed papers: Claim, Answer.
This claim arose on November 1, 2010, on Field 6 of the Jones Beach State Park. According to the claim (¶ 11), Claimant was walking toward a building that housed the men's room, when he "was cause[d] to trip and fall due to an elevated area of cement flagstone, said area being located approximately 22 feet from the parking lot curb line and approximately 5 feet south of the southwest corner of the concession stand building which houses the men's restroom." Defendant has now moved for an order dismissing the action on the ground that any defect in the walkway area was open and obvious and that the difference in elevation was so minimal that it cannot be considered to constitute a dangerous or defective condition.
Photographs of several portions of the area in question are contained in Defendant's Exhibit C, but the record does not disclose when or by whom those photographs were taken. Nor is there any indication as to which photograph depicts the location of Claimant's fall. Other photographs, contained in Exhibit E, were taken on the day of the incident by Douglas Averill, an employee of the New York State Parks Department who was called to the scene (see Exhibit F [deposition transcript of Douglas Averill]). While these photographs do not show any obvious dramatic drop along the various expansion joints that are pictured, the location at which Claimant fell is not identified with any precision. The only photographs in which there was an attempt to provide a measurement, by using a penny as a size reference, is not clearly related to the other photographs or the location of Claimant's fall (Exhibit E, photographs labeled 14:29).
In order to prove that the State's negligence is liable for his injuries, Claimant must establish, by a preponderance of the credible evidence, that Defendant breached a duty owed to Claimant and that breach was a substantial factor in causing Claimant's injuries (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Donohue v Copiague Union Free School Dist., 64 AD2d 29, 32-33 [2d Dept 1978], affd 47 NY2d 440 [1979]). In a trip and fall case such as this, Claimant is required to establish that a dangerous condition existed and that Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).
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. Rather, it is generally 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, 90 NY2d 976, 978 [1997], quoting Caldwell v Village of Is. Park, 304 NY 268, 274 [1952]). Defendant may protect against liability by proving that the alleged defect was 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]), that it had no obligation to warn against a condition that could be readily observed by the use of one's senses (Stanton v Town of Oyster Bay, 2 AD3d 835, 836 [2d Dept 2003], lv denied 3 NY3d 604 [2004]; Herman v State of New York, 94 AD2d 161 [2d Dept 1983], affd 63 NY2d 822 [1984]), and/or that Claimant failed in his duty to use reasonable care to observe his surroundings, to see what is there to be seen and to avoid accidents (Levitt v County of Suffolk, 166 AD2d 421, 423 [2d Dept 1990], app dismissed 77 NY2d 834 [1991]; Weigand v United Traction Co., 221 NY 39, 42 [1917]).
The nature and dimensions of any defect, whether it was open and obvious, and whether the State had actual or constructive knowledge of any defect are all issues of fact, to be resolved after consideration of the testimony of witnesses, the credibility of those witnesses, any documentary evidence, and inquiry into the accuracy and relevance of the photographs by both parties. Summary judgment is appropriate only when a litigant's case can be set forth, as evidentiary facts in admissible form, establishing entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Summary judgment is inappropriate where there are issues of credibility (Singh v Rosenberg, 32 AD3d 840 [2d Dept 2006]) or where there are issues of material fact regarding the interpretation to be given to physical or documentary evidence (Nanco Envtl. Services Inc. v Camo Laboratories Inc., 245 AD2d 601 [3d Dept 1997]). In fact, all of the Court of Claims cases cited by Defendant in support of the proposition that the State should not be held liable in cases where uneven and deteriorated pavement conditions were either de minimus or open and obvious are decisions that were reached after trial, not on motion practice. These issues should be resolved in the same manner in this case.
Defendant's motion is denied.
July 19, 2012
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims