Opinion
# 2011-041-514 Claim No. 113814
12-22-2011
PAGE v. THE STATE OF NEW YORK
Synopsis
Claim arising from claimant's trip and fall over raised lip of ramp providing ingress and egress to claimant's place of employment is dismissed after trial where alleged defect did not constitute a dangerous condition nor was the ramp, its placement or use violative of any building, construction, maintenance or safety code. Case information
UID: 2011-041-514 Claimant(s): BARBARA A. PAGE Claimant short name: PAGE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) The caption has been amended sua sponte to reflect : the proper defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 113814 Motion number(s): Cross-motion number(s): Judge: FRANK P. MILANO SETRIGHT, LONGSTREET & BERRY LLP Claimant's attorney: By: Michael Longstreet, Esq. MACKENZIE HUGHES LLP Defendant's attorney: By: Stephen Helmer, Esq. Third-party defendant's attorney: Signature date: December 22, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Barbara Page (claimant), while employed as the manager of a commissary operated by Potsdam Auxiliary and College Educational Services (PACES), providing food services at defendant's State University of New York at Potsdam (SUNY Potsdam), was injured on October 6, 2005, as she exited Bowman Hall, her employment station at SUNY Potsdam since 2001.
Ms. Page, and other PACES workers in Bowman Hall, commonly and predominantly utilized an area at the rear of Bowman Hall housing a raised loading dock (at which food delivery trucks daily, and frequently, off loaded products) as a means of ingress and egress to Bowman Hall. Even so, the testimony of several witnesses, and Trial Exhibits 3A and 3B, demonstrated that there were several points of ingress and egress available to Bowman Hall employees, other than the loading dock entrance/exit. PACES workers in Bowman Hall were neither denied the option or opportunity of using points of ingress and egress other than the loading dock entrance/exit, nor were they required to use the loading dock entrance/exit.
Facing the loading dock, immediately adjacent to its left, were several permanent concrete steps by which people could achieve the level of the raised loading dock and thereafter enter (or exit) Bowman Hall. The concrete stairs had a permanently affixed handrail. Usually, a portable metal ramp, which could be raised and lowered sideways, overlaid the concrete stairs and handrail at an incline, running from the ground to the raised level of the loading dock. The ramp was used, among other purposes, to cart trash from, and deliver food products to, Bowman Hall several times a day, and it was also a means by which pedestrians, including Bowman Hall workers, entered and exited Bowman Hall at that location.
The ramp had a metal eyelet which could be used to attach the ramp to a hook installed in the wall of the building, next to the stairs, designed to "stow" the ramp in an upright position against the wall when not in use. The ramp was not permanently affixed to the ground, stairs, wall or loading dock. On each side of the ramp's metal flooring, it had a raised four inch lip on the ramp's incline and a raised three inch lip where the ramp transitioned to the loading dock. The raised lip (also referred to as a "stringer") of the ramp, at all points, was painted in bright yellow "safety"paint.
Although photographic Trial Exhibits 7B, 7C, 7D, 7E, 7H, 7I and 7J do not depict the ramp at its location of the loading dock as it was on October 6, 2005, the exhibits do well show the physical characteristics and attributes of the ramp as they existed on that day. By stipulation of the parties, the dimensions of the ramp are as follows: sloping incline length of 107 inches, width of 30 inches, transition length atop the loading dock of 11 or 12 inches, a raised lip of four inches on each side of the ramp's incline, and a raised lip of three inches on each side of the ramp where the ramp transitioned 11 or 12 inches to the loading dock.
On the morning of October 6, 2005, claimant met with two of her supervisors and was informed that by reason of workplace complaints made against her, she was being placed on administrative leave for three months, effective the following day (Exhibit 9A is a copy of the letter provided to her that morning [misdated as October 6, 2004], detailing the circumstances leading to and the consequences of the imposed leave). Her reaction to this news was described, not surprisingly, as "angry" and "unhappy."
Later that morning, claimant received further distressing news when informed that her son had been injured in a roadside bombing in Iraq.
Claimant collected her personal effects and exited the rear of Bowman Hall shortly after 1:00 p.m. She carried an armful of books and notebooks, which she conceded affected her ability to "look down at the ground, the loading dock and the ramp" (Trial Transcript, pp 239-240). She described her mood that day, variously, as "upset" and "stressed."
The upper right quadrant of video footage contained in Exhibit 1 is video of the loading dock which shows claimant exiting Bowman Hall on October 6, 2005 shortly after 1:00 p.m, and approaching the ramp immediately prior to her fall. It does not actually show claimant fall down the ramp (that view is not within the viewscape of the camera which recorded Exhibit 1), but it does show claimant tripping over the ramp's lip and begin her fall. Photographic Trial Exhibits 4A, 4B, 4C, 4D, and 4E are still photographs from the video of Exhibit 1, depicting these events at time-stamped 13:12:32 and 13:12:33 seconds (1:12:32 p.m. and 1:12:33 p.m.).
On video Exhibit 1, claimant is shown exiting Bowman Hall and entering the loading dock at 13:12:29. She approaches the ramp. Rather than walking around the ramp's raised lip and approaching the ramp head-on, where the ramp transitions to the loading dock, she moves diagonally towards the ramp and its lip, cutting the corner. At 13:12:32 she successfully lifts her right foot over the 3 inch lip of the ramp and places it on the ramp. At 13:12:33, she catches her left foot on the lip, trips, and begins her fall.
The video, in the minutes that follow, shows several coworkers discovering that claimant had fallen and summoning help. The first coworker to come upon the scene arrives at 13:13:05. He, unlike claimant, approaches the ramp head-on and descends the ramp, ostensibly to assist claimant. In the two minutes that follow, no fewer than four additional coworkers of claimant approach the top of the ramp head-on, where it transitions to the loading dock, and not at a diagonal over the ramp's lip.
A number of pertinent facts were conclusively established at trial. PACES workers most often utilized the loading dock entrance/exit to enter and leave Bowman Hall. However, other points of ingress and egress were available to them, and they were not required to enter or exit Bowman Hall via the loading dock entrance/exit. The ramp was over 10 years old and had been in place at the Bowman Hall loading dock area for several years at the time of claimant's accident. No proof was provided that the ramp was in any manner defective or broken. While at its Bowman Hall location, the ramp was most often in its lowered position, covering the concrete stairs. The portable ramp was not permanently affixed to anything and was moveable, capable of being raised and lowered to and from the adjoining wall. It was, in fact, raised and lowered from time to time to make the underlying concrete steps available for pedestrian ingress and egress. The ramp was used for pedestrian and business/service ingress and egress to Bowman Hall hundreds of times per week. Although there had been a single documented labor/management issue raised requesting that the ramp be outfitted with handrails (Labor Management Minutes of February 11, 2004, Trial Exhibit 6A), this reportedly related to employee concerns about slipping on the ramp's metal surface during wet or snowy conditions (Trial Transcript, pp 207-208). There had been no complaints made that the ramp posed a tripping hazard nor had there been any reported incident or accident of anyone, employee or otherwise, tripping on or over the ramp. Handrails on the ramp would have precluded the ramp from being stowed in an upright position, thereby blocking the only permanent means of pedestrian ingress and egress at that location: The concrete steps and their adjoining handrail. For that reason, the idea was decided to be "not feasible" (Trial Exhibit 6B). Claimant had never before, in her four and a half years of using that ramp to enter or exit Bowman Hall, tripped on the ramp (Trial Transcript, p 211).
"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]).
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 determinative legal issues of the claim were narrowed prior to trial by an Appellate Division decision (Page v State of New York, 72 AD3d 1456 [3d Dept 2010]). Defendant's responsibility for the ramp over which claimant tripped and defendant's constructive, if not actual, notice of its condition, have been clearly established. Accordingly, consideration of the claim involves the Court's assessment of the trial evidence applied to the following questions:
1. Did claimant prove by a preponderance of the credible evidence that the ramp over which she tripped, its placement or use, violate any applicable building construction, maintenance or safety codes and if so, did any such violations constitute negligence that proximately caused claimant's accident;It is well-settled that "[a] violation of the building code, while not negligence per se, does provide some evidence of negligence" (Gonzalez v State of New York, supra, at 1194; see Elliott v City of New York, 95 NY2d 730, 734-735 [2001]; Avina v Verburg, 47 AD3d 1188, 1188-1189 [3d Dept 2008]).
2. Did the ramp over which claimant tripped constitute a dangerous condition; and,
3. Depending upon the answers to the two foregoing questions, to what extent, if at all, did claimant's actions cause or contribute to her accident.
Hugh Hallenbeck, a licensed architect, testified as an expert witness for claimant. William Fisher, Assistant Vice President for Facilities at SUNY Potsdam and a certified building code official, testified as an expert witness for defendant. Even though each party produced an expert witness to address code issues, it is claimant's responsibility, ultimately, to prove by a preponderance of the credible evidence that the ramp, its placement or use violated an applicable building construction, maintenance or safety code.
Candidly, neither expert testified authoritatively or well. The substance of their testimony was either conclusory with little reasoning or explanation offered to support opinions rendered, muddled, or of dubious quality. Ultimately, neither expert was persuasive. Having observed their demeanor as they testified, and having further considered the substance of their testimony, the Court declines to credit either.
Mr. Hallenbeck, claimant's expert, was asked about the applicability of a safety code section to the Bowman Hall loading dock ramp (Trial Exhibit 13, section 5-2.5.1). Section 5-2.5.1 reads: "General. Every ramp used as a component in a means of egress shall conform to the general requirements of Section 5-1 and to the special requirements of this subsection." The following exchange takes place at Trial Transcript, p 155:
"Q. . . . being there, being able to put it up and down. Did that, do you have an opinion as to whether that application, having a temporary ramp there, complied with Section 5-2.5.1?Mr. Hallenbeck never answers the question whether the ramp's characteristics, character, placement or use is violative of the section referenced.
A. Yes, I have an opinion.
Q. Tell us about that?
A. And the opinion is that the ramp was a temporary means covering over the permanent means of egress and so that it was not a permanent means of egress, the ramp itself."
When asked whether the ramp complied with Section 1162.2 (f) of the State Uniform Fire Prevention and Building Code (Building Code), Trial Exhibit 12, and the section's obligation that "Exit access and exit discharge areas shall be so maintained as to provide a permanent, reasonable straight path of travel . . . ," Mr. Hallenbeck replies, " . . . the ramp was not a permanent construction" (Trial Transcript, p 153). His testimony upon cross-examination later suggests that the cited section pertains to the interior of a building (Trial Transcript, p 166). Finally, as to the ramp itself, after conceding its temporary nature, Mr. Hallenbeck agreed that the Building Code had no applicability to a temporary ramp (Trial Transcript, p 165).
Lastly, claimant's expert witness, prior to the morning of the trial, had never observed the ramp in person, nor had he examined it. He had never observed or inspected it as it was situated or used at the Bowman Hall loading dock. In fact, he had never visited Bowman Hall or the SUNY Potsdam campus at all, and as such, was unable to provide first person observations of the layout, spacing, dimensions, distances or paths of travel involving the ramp, the concrete stairs and handrail over which the ramp was placed, the loading dock or the entryways to Bowman Hall. His credibility and persuasiveness, particularly related to issues of ingress and egress, was accordingly, and additionally, diminished.
The SUNY Potsdam campus and its buildings, including Bowman Hall, are inspected annually over a 7 to 10 day period for potential code violations by representatives of the New York State Department of State Office of Fire Prevention and Control (OFPC). If deficiencies are noted, a reinspection to assess how the college addressed them is conducted thirty days later. Upon successful initial or subsequent inspection, OFPC issues a "Certificate of Compliance" for each inspected building.
Trial Exhibit 10A is a Certificate of Compliance issued by OFPC for Bowman Hall covering the period of October 13, 2004 to September 23, 2005. On September 27, 2005, nine days prior to claimant's accident, OFPC inspected Bowman Hall and issued a "Preliminary Report of Findings" (Trial Exhibit 10C), noting 10 specific deficiencies. None of the deficiencies, several of which speak to issues of ingress and egress, relate to the loading dock area of Bowman Hall, the ramp located there or involve issues of ingress or egress at that location. On October 27, 2005, OFPC reinspected Bowman Hall and the defendant was thereafter issued a Certificate of Compliance for Bowman Hall covering the period November 14, 2005 to September 27, 2006 (Trial Exhibit 10B). Included therein is the legend, "TAKE FURTHER NOTICE THAT AT THE TIME OF INSPECTION, NO VIOLATIONS OF THE NEW YORK STATE UNIFORM FIRE PREVENTION AND BUILDING CODE WERE OBSERVED."
By reason of all of the foregoing, claimant has failed to prove by a preponderance of the credible evidence that the ramp, its placement or use violated any applicable building construction, maintenance or safety code.
Moons v Wade Lupe Const. Co., Inc. (24 AD3d 1005, 1006 [3d Dept 2005]) instructs that: "Significantly, the existence of a dangerous condition is generally a question of fact . . . that 'depends on the peculiar facts and circumstances of each case' " (quoting Schechtman v Lappin, 161 AD2d 118, 121 [1st Dept 1990]; accord Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]; Wilson v Time Warner Cable, 6 AD3d 801, 801-802 [3d Dept 2004]).
Due to the deficiency of claimant's proof, including that of her expert's testimony, and further, given the following facts and circumstances, the Court concludes that neither the ramp nor its raised lip constituted a dangerous condition:
1. The ramp to the loading dock, rather than the stairs and handrail beneath the ramp, was the primarily used manner of pedestrian ingress and egress at that particular entrance/exit to Bowman Hall;
2. No proof that the ramp was in any way defective or broken was provided;
3. Claimant, her coworkers and service and product providers had used the ramp for pedestrian and service ingress and egress thousands of times over many years, without incident or accident;
4. No proof that any tripping accidents involving the ramp had occurred during its several years of use at Bowman Hall was provided;
5. No proof of any complaint having been made that the ramp posed a tripping hazard while in use at Bowman Hall was provided;
6. Claimant had never before, prior to October 6, 2005, in approximately four and a half years of use, tripped on the ramp;
7. The ramp's raised lip of three inches where claimant tripped was of modest height, easily, if need be, over stepped;
8. The ramp's raised lip could be easily avoided by entering or exiting the ramp head-on (where it transitioned to the loading dock), rather than entering or exiting the ramp at an angle, from the side; and,
9. The ramp's raised lip was entirely painted in bright yellow "safety" paint, which clearly delineated it and set it apart from the rest of the ramp, readily observable to those employing the reasonable use of their senses.
No applicable building construction, maintenance or safety code violations were proven. The ramp and its raised lip did not constitute a dangerous condition. As such, defendant breached no duty to claimant. Accordingly, the Court need not, and does not, consider the extent to which, if at all, claimant's conduct on October 6, 2005 caused or contributed to her accident.
For the foregoing reasons, the claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
December 22, 2011
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims