Opinion
# 2015-045-500 Claim No. 121372
02-04-2015
DANIELLE LEE v. THE STATE OF NEW YORK
Amideo, Nicholas, Guzzone & Associates, P.C. By: Sara A. Navas, Esq. Hon. Eric T. Schneiderman, Attorney General By: Theresa N. Wilson, Assistant Attorney General
Synopsis
Slip and fall at SUNY Stony Brook in the pool area on the bleachers.
Case information
| UID: | 2015-045-500 |
| Claimant(s): | DANIELLE LEE |
| Claimant short name: | LEE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121372 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | Gina M. Lopez-Summa |
| Claimant's attorney: | Amideo, Nicholas, Guzzone & Associates, P.C. By: Sara A. Navas, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Theresa N. Wilson, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 4, 2015 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
A bifurcated trial concerning the issue of liability only was held in this matter. The subject claim arose on March 29, 2012 at approximately 9:20 p.m. when claimant, Danielle Lee, slipped and fell on a bleacher seat located in the pool area at the Stony Brook University Sports Complex.
Claimant, a student enrolled at Stony Brook University, testified that in the 2012 spring semester she enrolled in the Adaptive Aquatics class which taught swimming to persons with disabilities. There were approximately 200-300 students in the class, 15 teaching assistants, 30 disabled individuals and 30-60 parents and helpers for the disabled. The pool used for the class was an Olympic size pool with 2 circular hot tubs located outside of the pool near the diving boards. Claimant testified that after she concluded instructing her student, she exited the pool and began to walk toward the bleachers. She observed what she described as excessive amounts of puddling water on the platform area below the bleachers. She explained that the puddle was approximately 2-3 inches in depth and reached her mid calf. She stated that she did not observe water going down the pool deck drains. Claimant testified that once she arrived at the bleachers, she walked up 8-9 steps, sat down, toweled off and waited to be dismissed. She recalled that there were approximately 40 students in her area and typically the students dry off once they are sitting on the bleachers.
Once class was dismissed, claimant dressed in sweats and flip-flops and began to descend the bleachers. Claimant walked down the bleachers by stepping from bleacher seat to bleacher seat rather than walking down the stairs. Claimant testified that she observed water on the bleacher seats as well as scattered puddling but that she continued to walk down the wet bleacher seats because students were still sitting and there was no other place for her to step. Claimant also testified she descended approximately 7 steps and that after she stepped with her left foot, she slipped, fell and landed on the platform on her right side. Claimant stated that she observed a student had only minutes before, vacated the seat where claimant slipped and that the seat was wet. Claimant testified that after she fell she observed water on the platform and that her clothes were soaking wet.
Claimant testified that the area around the pool always had water but that she never complained.
Dr. Peter Angelo, Director of Adaptive Aquatics and professor of claimant's class, testified on behalf of claimant. Dr. Angelo explained that the pool used by the class is intercollegiate sized with a tiled deck area that has brass drains every 20 feet. The pool deck is graded so that the water goes into the drains. He testified that the drains were not working and the pool water that splashed on the deck remained on the pool deck and could reach up to 4 inches at times. At the time of the accident, he described the pool deck as having approximately 3 inches of water by the staircase leading up the bleachers. He stated that water was dragged into the bleacher area from students walking through it. Dr. Angelo testified that he did not directly witness claimant's fall but that after her fall, he attended to claimant. He called EMS and filled out the accident report after claimant's fall.
Dr. Angelo testified that he complained about the drain to the Office of the Athletic Director, Jim Fiore and the people who work under him. He stated that he made daily oral complaints that the water was not draining from the pool deck. He also stated that he made written complaints on multiple occasions in the form of notes, and e-mails addressed to Todd Phelps who was in charge of building concerns and who worked for Mr. Fiore. Dr. Angelo testified that the flooding issue was never resolved but that he never cancelled class due to pool and deck conditions. He explained that he and the teaching assistants would re-route traffic around the pool when there was excessive flooding. Dr Angelo also testified that he complained to Todd Phelps earlier that day either via phone call or when he was conducting chemical tests on the water.
Adam McCloud, the Assistant Athletic Director for Facilities Operations and the Assistant Athletic Director for Events Operations at the time of the accident testified on behalf of defendant that he was responsible for completing work orders for facility operations. He testified that he visited the pool three times a week at different times of his workday and that the pool condition was always the same. However, he never visited the pool during Dr. Angelo's class during the spring semester. He testified that there were past drainage issues at the pool. In 2010 a sandy residue was coming up through the drains but the issue was resolved when the drains were cleared later that day. He also testified that drainage problems had been called in by Todd Phelps on four other occasions in 2011 where water was pooling around the drain.
Mr. McCloud testified that he never received a complaint about the pool or deck conditions from Dr. Angelo. He also testified there were no complaints about water accumulating on the bleachers. He explained that claimant fell approximately 10-15 feet away from the drain.
Todd Phelps testified at his deposition taken on February 27, 2013 that he has been employed by Stony Brook University for the past 4.5 years as the Associate Director of Athletics for Facilities and Operations and his job responsibilities include maintenance of all of the athletic facilities. He explained that if there was a problem he would be tasked with reporting it to the proper person or department to remedy the problem. Specifically in regard to the pool, his department is responsible for making sure the chlorine, temperature and water levels are adequate and that the water is clean. These checks are done weekly and monthly. He testified that he personally visited and observed the pool and bleacher areas between 10 and 20 times a year but not during classes.
Mr. Phelps testified that he never received any written complaints nor had any conversations with any student, employee or professor with regard to the condition of the pool. He also testified that he may have had conversations with Dr. Angelo about the pool but that he could not recall the substance of those conversations. However, with regard to the drains, he testified that the former head swim coach, David Alexander complained on one occasion in either the winter of 2011 or 2012 that the drains were backing up. He went to the pool and observed water coming back up and through the drains. In response he notified, campus operations and maintenance and they remedied the condition. After this incidence, no one else complained to him with respect to the drains, including Dr. Angelo.
Mr. Phelps also testified that during his tenure at Stony Brook University, he was not aware of any other accidents within the pool area.
Defendant has a duty to act as a reasonable person would in maintaining its premises in a reasonably safe condition (Basso v Miller, 40 NY2d 233 [1976]; Preston v State of New York, 59 NY2d 997 [1983]). It is not obligated to warn against conditions on its property that could be readily observed by the use of one's senses (Cupo v Karfunkel, 1 AD3d 48 [2d Dept 2003]). "Moreover, landowners will not be held liable for injuries arising from a condition on the property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it" (Stanton v Town of Oyster Bay, 2 AD3d 835, 836 [2d Dept 2003]).
In order to recover damages for a breach of this duty, claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take appropriate remedial action (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). "To constitute constructive notice, the defect must be visible and apparent and it must exist for a sufficient length of time before the accident to permit the defendant an opportunity to discover and remedy it" (Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798 [2d Dept 2003]).
Whether or not a dangerous or defective condition exists on the property of another so as to create liability depends upon the facts and circumstances of each case (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]). The width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury are all factors to be taken into consideration when analyzing whether the defect was a dangerous condition so as to create liability (id. at 978).
Claimant has failed to establish that the water on the bleacher seat was an unusually wet condition so as to constitute a dangerous condition at the time of the accident. The credible evidence established that students dried off on the bleachers after class and as a result there was some water accumulation on the bleacher seats. Claimant herself observed water on those bleacher seats as well as a student drying off on the specific bleacher seat she slipped on only minutes before she stepped on it and fell. The wet seats are also a condition that is incidental to the use of the bleacher seats as classroom seating and should have been reasonably anticipated by those using them. The evidence also established that claimant chose to walk down the bleacher seats by stepping from seat to seat rather than stepping on the floor between the bleacher seats or by using the staircases located at either end of the bleacher seats. Under these circumstances, the Court finds that claimant has failed to establish that the condition of the bleacher seat at the time of her fall was a dangerous condition (Atehortua v Lewin, 90 AD3d 794 [2d Dept 2011] lv denied 18 NY3d 811 [2012]; Stanton v Town of Oyster Bay, 2 AD3d 835 [2d Dept 2003]).
Additionally, the specific facts of this case compel the finding that the water on the bleacher seats was an open and obvious condition which was not inherently dangerous thus relieving defendant of its duty to warn of the condition (id.; Cassone v State of New York, 85 AD3d 837, 838 [2d Dept 2011]).
Claimant has also failed to establish that defendant created or had actual or constructive notice of water on the bleacher seat. The evidence established that there were no prior complaints about or accidents from water on the bleacher seats. In addition, the evidence established that a student had risen from the spot where claimant stepped and slipped only minutes before claimant's fall. To the extent that there may have been notice that there was excess water on the pool deck, general awareness of the pool deck condition is insufficient to provide notice of the specific wet condition on the bleacher seat which caused claimant to fall (Gallais-Pradal v YWCA of Brooklyn, 33 AD3d 660 [2d Dept 2006]). Claimant did not establish that the water on the bleacher seat was due to excess water on the pool deck as opposed to water on a student's body and swimsuit as a natural result of being in a pool. Any finding to the contrary would be based on pure speculation.
Therefore, based upon the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, her claim against defendant in this action. Accordingly the claim is hereby dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly.
February 4, 2015
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims