Opinion
# 2013-039-384 Claim No. 113666
10-07-2013
BONNIE SAMUELS AND NORMAN SAMUELS v. STATE OF NEW YORK
Claimant's attorney: Tartamella, Tartamella & Fresolone By: Leonard Tartamella, Esq. Defendant's attorney: Hon. Eric T. Schneiderman Attorney General of the State of New York By: Theresa Wilson Assistant Attorney General
Synopsis
Following a bifurcated trial on the issue of liability, the Court finds that claimants have failed to prove their negligence claim against defendant. Claimants failed to establish that the depression identified at trial as that which Mrs. Samuels tripped over was the actual condition that caused her to trip. In any event, claimants have failed to establish that the depression was a dangerous condition, and have proffered insufficient evidence of notice and causation.
Case information
+---------------------------------------------------------------------------+ ¦UID: ¦2013-039-384 ¦ +---------------------------------+-----------------------------------------¦ ¦Claimant(s): ¦BONNIE SAMUELS AND NORMAN SAMUELS ¦ +---------------------------------+-----------------------------------------¦ ¦Claimant short name: ¦SAMUELS ¦ +---------------------------------+-----------------------------------------¦ ¦Footnote (claimant name) : ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Defendant(s): ¦STATE OF NEW YORK ¦ +---------------------------------+-----------------------------------------¦ ¦Footnote (defendant name) : ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Third-party claimant(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Third-party defendant(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Claim number(s): ¦113666 ¦ +---------------------------------+-----------------------------------------¦ ¦Motion number(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Cross-motion number(s): ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Judge: ¦James H. Ferreira ¦ +---------------------------------+-----------------------------------------¦ ¦ ¦Tartamella, Tartamella & Fresolone ¦ ¦Claimant's attorney: ¦ ¦ ¦ ¦By: Leonard Tartamella, Esq. ¦ +---------------------------------+-----------------------------------------¦ ¦ ¦Hon. Eric T. Schneiderman ¦ ¦ ¦ ¦ ¦ ¦Attorney General of the State of New York¦ ¦Defendant's attorney: ¦ ¦ ¦ ¦By: Theresa Wilson ¦ ¦ ¦ ¦ ¦ ¦Assistant Attorney General ¦ +---------------------------------+-----------------------------------------¦ ¦Third-party defendant's attorney:¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Signature date: ¦October 7, 2013 ¦ +---------------------------------+-----------------------------------------¦ ¦City: ¦Albany ¦ +---------------------------------+-----------------------------------------¦ ¦Comments: ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Official citation: ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦Appellate results: ¦ ¦ +---------------------------------+-----------------------------------------¦ ¦See also (multicaptioned case) ¦ ¦ +---------------------------------------------------------------------------+ Decision
Claimants Bonnie and Norman Samuels filed a claim with the Chief Clerk of the Court of Claims on May 7, 2007, arising from a trip and fall in an overflow parking lot at Stony Brook University in Stony Brook, New York on May 8, 2006. Specifically, claimants allege that Ms. Samuels tripped and fell in the paved parking lot known as the State University of New York Administration overflow parking lot due to pavement that "was broken, cracked, raised, uneven, dilapidated and/or improperly and negligently constructed and/or maintained, and having holes in the parking lot/pavement area on the date of [the] accident" (Claim, ¶ 5). Issue was joined, discovery ensued and a trial on the issue of liability was held in Hauppauge, New York on January 31 and February 1, 2013. Claimants called five witnesses: claimant Bonnie Samuels (hereinafter Ms. Samuels); Robert Schwartzberg, an expert witness; Francis Garske, a State employee; Peter Thomson, a Stony Brook University police officer; and Winston Kerr, a detective. Defendant called no witnesses. Deposition testimony, photographs and documents were received into evidence. Post-trial memoranda were also submitted.
The claim of Norman Samuels is derivative in nature.
Ms. Samuels, a 65 year old retired elementary school teacher with a master's degree in liberal arts, testified that she was taking classes at Stony Brook University on May 8, 2006. Approximately five to ten minutes before noon on that date, she parked her car in an outdoor lot, known as the administrative overflow parking lot (hereinafter "overflow lot"). She testified that she could not recall if she had ever previously parked in that lot. There was no requirement that students be there at the start of her class, which began at noon.
Ms. Samuels stated that the weather conditions on May 8, 2006, were dry and overcast. She parked at the far end of the overflow lot in the last row of cars because the lot was full. She exited her car and walked in a northerly direction through the lot toward the Social Behavior Sciences ("SBS") Building. She was wearing jeans, a sweatshirt, a rain jacket and a heavy shoe similar to a short boot. She was also wearing glasses with bifocal lenses for distance and reading; she stated that she had no difficulty seeing in front of her. She was carrying a pocketbook in one hand and a cardboard portfolio containing artwork in the other. She was proceeding toward a path approximately 50 to 60 feet ahead of her to the left when she fell:
"I was walking. I put my left foot down onto level ground. I felt my heel go onto level ground, and then my - - the front part of my foot did not approach that level ground. It went past it into a depression."
Unless otherwise indicated, all quotations are from the electronic audio recording of the trial. The Court notes that it received a partial and incomplete written transcript of the trial proceedings, and therefore elected to rely on the audio recording.
She stated that the front part of her left foot went into a depression and then she fell forward on her face. She believed that she was 30 to 50 feet from the pathway, depicted in claimants' exhibit 6, when she fell. After the fall, she observed the depression where her "foot went forward" and she lost her balance. She testified that no warnings or barriers were in place near the depression and that the depression "was deep enough that my foot went in it." She stated that she did not see the depression before she fell. Three men, who had been walking toward her when she fell, came over to her, helped her up and walked her back to her car. One of the men stayed with her until an ambulance arrived. A University police officer responded, and Ms. Samuels recalled he prepared a written statement in her presence.
Five days later, on the afternoon of May 13, 2006, Ms. Samuels returned with a friend to take photographs of the depression (see claimants' exhibits 8, 9, 44 and 45). She stated that, other than rainfall that had pooled in the depression, the depression was in the same condition as it was the day of her accident. Using a rock she found at the scene, placing the rock in the depression and measuring the rock later at home, she estimated the depth of the depression to be "an inch, inch and a half." Claimants' exhibit 8 shows the depression and the rock she used for measurement purposes. She stated that the depression was triangular in shape. Using strips of caution tape she found on nearby grass, she measured the sides and then later with a ruler at home, determined the sides to be 21 inches by 24 inches by 18 inches (see claimants' exhibits 44 and 45). She believed the deepest part was the 24 inch side - the side closest to the rock - and she stated that this was the side of the depression she was approaching as she walked through the lot (claimants' exhibits 8 and 44). Ms. Samuels also stated that a University employee, Francis Garske, appeared that day for about ten minutes as she was taking photographs and measuring the depression, and that she spoke to him and told him she had fallen.
During cross-examination, she stated that she had taken classes at the University for three years prior to the accident and usually parked in an indoor garage when taking classes in the SBS building. She could not recall if she had ever parked in the overflow lot before the accident and stated that she had seen the overflow lot prior to the accident but could not remember how many times. She repeated that before she fell she was carrying in one hand a brown cardboard portfolio, about 18 inches wide and 12 inches high with a cloth handle, containing artwork of another student, and in her other hand, she was holding a small backpack by the handle. She stated that earlier that day she had seen a doctor and had left the doctor's office at 11:45 a.m. Less than 10 minutes later, she was at the University. She marked with the letter "A" on a partial map of the University the overflow lot where she parked her vehicle (see defendant's exhibit E-1). She estimated that 400 cars could park in the overflow lot.
Ms. Samuels testified that the overflow lot on the day of the accident was not "freshly paved" and that, as she walked from her car toward the SBS building, she could see "cracks" and "broken up areas" on the lot pavement. She stated that she would avoid walking on "dangerous spots" if she saw them beforehand. Claimants' exhibit 33 generally shows the open area between the last row of cars and the curb she was walking towards where the path began; she estimated that area was 20 feet to 25 feet wide. She stated that before the accident, she was "looking straight ahead." She acknowledged there was no debris or leaves covering the depression, which was in the space between the last row of cars and the curb where the path began. She saw the depression after she was able to stand up.
Richard Schwartzberg, a New York State licensed professional engineer since 1978, testified that he had previously opined at trials on accident causation over 150 times. During voir dire, he could not state how often he had actually testified as an expert on cases involving asphalt, but stated that he had prepared 40 to 50 reports on asphalt, with half of those involving parking lots. Here, he reviewed deposition testimony, photographs, and pleadings in his case review. He opined that the triangular shaped depression was "an absolutely dangerous condition" that a person could walk into "unseeingly, unknowingly and suffer personal injury." He opined that the depression was a formation with an "abrupt rise" and "significant displacement" that created a "substantial hazard and tripping hazard." He believed the triangular depression was a pothole and that a property maintenance code applicable to New York State required that the area be free of hazardous conditions and in a proper state of repair. He opined further that "the height differential between the undisturbed surface and the interior area of the hole was the cause" of the fall, and that the area should have been marked with barricades, cones or the like because this was "an area where pedestrians would be walking."
Schwartzberg testified that he had visited the accident scene, but that the area was not in the same condition as it was in May 2006.
During cross-examination, he stated that he did not know if the overflow lot was asphalt or concrete. He stated that weather or "the elements" can cause potholes on either surface. He believed the depression was located in the "roadway" of the parking lot based on Examination Before Trial (hereinafter EBT) testimony that he reviewed, and stated that he had no independent knowledge of the depth of the depression other than Ms. Samuels' EBT, wherein she stated more than one inch, and the EBTs of Charles Kohn, one of the three men who attended to Ms. Samuels after the accident, and Garske, who described a depth of a half inch or more. Schwartzberg believed that the freeze and thaw period in the winter months of 2006 created the depression, but could not state with any certainty how often those cycles of freezing and thawing occurred during that time frame, other than a "good two dozen times." He opined that the depression or pothole depicted in claimants' exhibits 8 and 9 was there weeks or months before the accident. He acknowledged that he never observed the depression in person, never took any measurements of the depression, did not know the grade or type of asphalt used on the overflow lot when first applied, and did not know the traffic load or the wheel path in the lot. He stated that Section 302.3 of the Property Maintenance Code, entitled "Sidewalks and Driveways," applied to parking lots like the overflow lot.
Francis Garske testified that he was employed at the University in May 2006 as a grounds maintenance supervisor. His duties at that time included keeping the campus clean, removing debris, trimming trees and cutting grass. He would walk the academic mall area or drive a University pickup truck to inspect and check parts of the campus. He had previously worked for the University performing a variety of tasks including masonry construction, carpentry and plumbing work. He did not recall there being a written protocol in May 2006 as to how and when inspections on the campus grounds would occur; if he observed conditions that needed maintenance, he verbally reported them to his supervisor. He generally worked Monday through Friday, and on weekends when there were special events like commencement. On Saturday, May 13, 2006, he was directed by his supervisor to trim back some low branches in the overflow lot. When he arrived at the lot, he observed two women putting a "piece of caution tape down over by an indentation in the parking lot." He identified the depression that he observed in the overflow lot as the one depicted in claimants' exhibits 8, 9, 44 and 45. He had a conversation with the two women while in his truck and estimated he was within 10 feet of them. He stated that it was his practice to report conditions to his superiors, and here, he verbally reported his observations and the conversation with the women to his management the following Monday. He recalled the overflow lot at that time was "well over 200 by 200 feet long" with painted lines to indicate parking spaces. People exiting their cars would walk through the parking lot in a driving or traffic lane to reach the walking path. Garske estimated that the women looking at the depression were 25 feet from the walkway. He stated further that the depression "looks like it was done by a piece of machinery, and I don't know the time frame in which that may have occurred, but it was winter. It could have been done by a plow or a bucket loader."
During cross-examination, he stated that he did not witness the accident. He estimated that there were five to ten large parking lots and a parking garage on the campus in May 2006. His grounds crew had at least seven employees and was responsible for approximately 15 miles of roadway and over 30 miles of sidewalk within the University at that time. He confirmed that claimant had no measuring tools and was using caution tape. He estimated the depression was a half inch to an inch deep and was located "within the 25 foot radius of the handicap ramp" leading to the walking path. He stated that the "indentation was darker than the surroundings." The layout of the ramp and the path exiting the overflow lot as it looked in May 2006 is depicted in claimants' exhibit 3. Garske repeated that there was no designated walking path from the overflow lot other than the one claimant was walking toward. People would walk through the lot in the driving lanes to access the walking path. He was not aware of any complaints, write-ups or reports about the depression prior to May 8, 2006, and was not aware that people had ever fallen at that location, other than the incident at issue here, which he reported to his supervisors after May 13, 2006. On redirect, he stated that, prior to the accident, he did not recall seeing any depressions in the overflow lot. He acknowledged that in his 2008 EBT, he did state that he had observed pooling of water and depressions in the overflow lot in the three years prior to the accident. He expressly stated in the EBT, however, that he "never observed potholes" (see claimants' exhibit 47 at 47).
Photographs of the overflow lot received into evidence without objection, while not depicting the condition of the pavement on May 8, 2006, do provide three views of the general layout of the lot, including the open lot surface area between the last row of parking spaces and the path or walkway that Ms. Samuels was walking towards (see claimants' exhibit 3; see alsoclaimants' exhibits 1 and 2). The area in front of the path is also depicted in claimants' exhibit 6.
Peter Thomson, a police officer with the State University Police, testified that he responded to the May 8, 2006 accident at the overflow lot. He estimated that the lot could accommodate around 400 cars. He spoke with Ms. Samuels and then prepared and signed an incident report, which she did not sign (see claimants' exhibit 42). He recalled that Ms. Samuels asked him to look at a crack or hole in the asphalt but he could not describe the condition or recall where in the lot it was located. During cross-examination, he testified that the narrative in the report he created was based on his conversation with Ms. Samuels. He stated that he did not know of any prior complaints about the area where claimant stated she fell, and that he never observed anyone fall in this area. He verified her complaint by looking at the condition and agreed that the condition was a crack. On redirect, he acknowledged that he had taken no steps to investigate whether complaints about the lot had ever been made. During rebuttal, he repeated that claimant described what she fell on as a crack and that he also believed, based upon his review of the condition, that it was a crack and not a hole, depression or pothole.
Winston Kerr, a retired detective from the State University police, testified that he was assigned in 2006 to the University Hospital. His work at that time involved investigating possible felonies related to missing money and medical equipment. He became aware of the instant case because of an accident incident report signed by Thomson contained in a daily bulletin. He testified that the condition depicted in claimants' exhibits 8 and 9 was something that would be reported. During cross-examination, he stated that he never personally observed the defect and did not recall anyone ever reporting that the defect existed prior to the accident. He estimated the depth of the depression to be 3½ to 4 inches based on his review of exhibits 8 and 9.
Claimants also offered EBT testimony from Garske, including his statements that no employee had a specific job description to inspect parking lots and that no protocol existed requiring employees to submit a written report of conditions observed that may need maintenance (see claimants' exhibit 47 at 66-67). Claimants also proffered EBT testimony from Charles Kohn, one of the three men who attended to Ms. Samuels the day of the accident. Kohn stated that he was at the University that day to teach a class and was returning to the overflow lot around noon. The weather was pleasant and dry with no precipitation (see claimants' exhibit 46 at 8). He did not see Ms. Samuels fall but was there while two other men he was with helped her up (see id. at 9, 10). He stated "there was a slight indentation in the parking lot where she fell" with a depth of "about a half an inch or around there" (id. at 11, 14). He had observed "some" indentations in the overflow lot prior to May 8, 2006, but had never complained about them or heard of similar accidents (id. at 13, 14).
It is well settled that, in order to establish a prima facie case of negligence, " 'a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff' " (Comack v VBK Realty Assoc., Ltd., 48 AD3d 611, 612 [2d Dept 2008], quoting Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565, 566 [2d Dept 2005]; see also Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981]; Pulka v Edelman, 40 NY2d 781, 782 [1976]; Keating v Town of Burke, 86 AD3d 660, 660-661 [3d Dept 2011]; Rodriguez v Budget Rent-A-Car Sys., Inc., 44 AD3d 216, 221 [1st Dept 2007]; Solan v Great Neck Union Free School Dist., 43 AD3d 1035, 1036 [2d Dept 2007]; PJI 2:10). It is equally axiomatic that the State, as a landowner, must maintain its " 'property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk' " (Miller v State of New York, 62 NY2d 506, 513 [1984], quoting Preston v State of New York, 59 NY2d 997, 998 [1983] [internal quotations and citation omitted]; see Green v State of New York, 222 AD2d 553, 554 [2d Dept 1995]). The State, however, "is not an insurer against every injury that might occur on its property" (Covington v State of New York, 54 AD3d 1137, 1137-1138 [3d Dept 2008]), and "[n]egligence cannot be presumed from the mere happening of an accident" (Mochen v State of New York, 57 AD2d 719, 720 [4th Dept 1977]; see also Melendez v State of New York, 283 AD2d 729, 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]).
"[W]hether a dangerous or defective condition exists on the property of another so as to create liability 'depends on the peculiar facts and circumstances of each case and is generally a question of fact for the [factfinder]' " (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997], quoting Guerrieri v Summa, 193 AD2d 647, 647 [2d Dept 1993] [internal quotations and citation omitted]). "[T]he width, depth, elevation, irregularity and appearance of the defect along with the 'time, place and circumstance' of the injury" are all factors to consider in assessing whether the condition was a dangerous condition (Trincere v County of Suffolk, 90 NY2d at 978, quoting Caldwell v Village of Is. Park, 304 NY 268, 274 [1952]; see Sokolovskaya v Zemnovitisch, 89 AD3d 918, 919 [2d Dept 2011]; Grosskopf v 8320 Parkway Towers Corp., 88 AD3d 765, 765 [2d Dept 2011]). Although "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" (Trincere v County of Suffolk, 90 NY2d at 977; see Evans v Pyramid Co. of Ithaca, 184 AD2d 960 [3d Dept 1992]), "a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip" (Copley v Town of Riverhead, 70 AD3d 623, 624 [2d Dept 2010]; see Dery v K Mart Corp., 84 AD3d 1303, 1304 [2d Dept 2011]; Riley v City of New York, 50 AD3d 344 [1st Dept 2008]). "Injuries resulting from trivial defects are generally not actionable" (Outlaw v Citibank, N.A., 35 AD3d 564, 564 [2d Dept 2006]), and the State will not be liable for a trivial defect that is "open and obvious and capable of being avoided" (Vachon v State of New York, 286 AD2d 528, 530 [3d Dept 2001]).
Where a dangerous condition exists, "liability will attach when the State has had actual or constructive notice of [the] dangerous condition and then fails to take reasonable measures to correct the condition" (Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980] [citation omitted]; see also Friedman v State of New York, 67 NY2d 271, 286 [1986]; Rinaldi v State of New York, 49 AD2d 361, 363 [3d Dept 1975]; Carlo v State of New York, 13 Misc 3d 1222 [A] [2006], affd 51 AD3d 618 [2d Dept 2008]). A defendant's creation of a dangerous condition constitutes actual notice (see Mercer v City of New York, 223 AD2d 688, 690 [2d Dept 1996], affd 88 NY2d 955 [1996]; Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 [1st Dept 1984], affd 64 NY2d 670 [1984]). " '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] to discover and remedy it' "(Crawford v AMF Bowling Ctrs., Inc., 18 AD3d 798, 799 [2d Dept 2005], quoting Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Cantwell v Rondout Sav. Bank, 55 AD3d 1031, 1032 [3d Dept 2008]).
In addition, no liability will attach unless the ascribed negligence of the State is a proximate cause of the accident (see Johnson v State of New York, 27 AD3d 1061, 1062 [4th Dept 2006],lv denied 7 NY3d 711 [2006]; Sinski v State of New York, 2 AD3d 517, 517 [2d Dept 2003]; Travalino v State of New York, 203 AD2d 276, 277 [2d Dept 1994]; Andrews v State of New York, 168 AD2d 474, 474-475 [2d Dept 1990]). Claimants must show "that [defendant's] conduct was a substantial causative factor" in the events that led to Ms. Samuels' injury (Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520 [1980]; see also Derdiarian v Felix Contr. Corp., 51 NY2d 308, 308 [1980]; PJI 2:70). That is, claimants are required to prove " 'that it was more likely or more reasonable that the alleged injury was caused by. . . defendant's negligence than by some other agency' " (Pipp v Guthrie Clinic, Ltd., 80 AD3d 1014, 1015 [3d Dept 2011], quotingGayle v City of New York, 92 NY2d 936, 937 [1998]). " 'Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he [or she] has failed to prove that the negligence of the defendant caused the injury' " (Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987], quoting Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938];accord Morreale v Esposito, 109 AD3d 800, __, 2013 NY Slip Op 05803, *1 [2d Dept 2013]).
Upon application of these principles to the facts presented here, and after weighing the evidence proffered at trial, including the exhibits received into evidence and considering the testimony and demeanor of the witnesses, the Court finds that claimants have not established, by a preponderance of the credible evidence, their claim of negligence against defendant.
At the outset, the Court finds that claimants have not established that the depression identified by claimants at trial as the defect that Ms. Samuels tripped over is the actual condition that she tripped over on May 8, 2006. Although she testified at trial that she fell into a "depression" and relied on certain photographs, her recollection of the area where she fell was based largely on her return visit to the overflow lot on May 13, 2006 and photographs taken on that day (see claimants' exhibits 8, 9, 44 and 45). She testified that she could not recall if she had ever previously parked in the overflow lot, and the photographs of the depression received into evidence do not provide a wider visual of the location of the depression relative to its proximity to the ramp and walking path she was walking towards after exiting her vehicle. During her cross-examination, she acknowledged that as she walked through the overflow lot toward the path on May 8, 2006, she could see "cracks" and "broken up areas" in the lot. While the Court agrees there was sufficient evidence to place the depression that Garske saw the women taking pictures of on May 13, 2006, within 25 feet of the starting point for the ramp and walking path, the Court has no corroborative proof, other than claimant's self-serving recollection, that the depression in those photos is the defect she tripped over. In light of her testimony that cracks and broken areas were evident elsewhere, the Court cannot discount the likelihood that she fell at some other location in the overflow lot. Adding to the Court's uncertainty as to whether Ms. Samuels fell where she states she fell is the deposition testimony of Kohn, one of the men who helped Ms. Samuels moments after her fall, who described the depression in his deposition as a "slight indentation" about ½ inch deep (claimants' exhibit 46 at 11), and the Incident Report prepared by Officer Thomson, which indicates that he met with Ms. Samuels within an hour of the accident at the overflow lot and that she told him she fell "due to cracked asphalt" (claimants' exhibit 42). The Court would not in any way characterize exhibits 8, 9, 44 and 45 as depicting "cracked asphalt," even giving Ms. Samuels some latitude with her description because she may have been in distress after her fall.
Even assuming that the depression Ms. Samuels identified in those photographs was the actual condition she tripped over, the Court finds that claimants have not established that it was a dangerous condition. The photographs alone are insufficient to establish a dangerous condition and, in the Court's view, depict the kind of uneven pavement irregularity that could be found in any large outdoor parking lot. The triangular shaped depression, particularly as presented in claimants' exhibit 45, does not represent a trap or snare; Ms. Samuels testified that her vision was not blocked, that she had no difficulty seeing in front of her, and that the depression was in an open area and not covered with leaves or debris. Garske also testified that the indentation was "darker than" the surrounding pavement. The absence of any photographic evidence that could provide a more accurate sense of "place and circumstance of the injury" (Trincere v County of Suffolk, 90 NY2d at 978), namely, where exactly in the lot the depression was located further undermines the contention that the depression was a danger because it was in an area that pedestrians and motorists leaving their cars would regularly use.
Accounts of the depth of the depression also varied among the witnesses from one half inch deep (Kohn), to one half to one inch deep (Garske) to one to one and one half inches deep (Ms. Samuels), with the Court finding the observations of Kohn and Garske more credible. While Ms. Samuels made an effort to assess the depth of the depression days after her fall, her use of a rock and caution tape as measuring tools, are not scientifically trustworthy devices, and thus the measurements gleaned from their use are not reliable. Notably, New York courts have held that in trip and fall cases involving differences in elevation of one inch or less, and where the evidence shows - as it does here - that attendant circumstances such as lighting, visibility, and location of the defect, which could give the defect characteristics of a trap or snare, were not contributing factors, such a height or depth differential is too trivial to constitute a dangerous or defective condition (see Joseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d 481, 482 [2d Dept 2007]; Gaud v Markham, 307 AD2d 845, 845-846 [1st Dept 2003]; Cruz v Deno's Wonder Wheel Park, 297 AD2d 653, 653 [2d Dept 2002]; Mascaro v State of New York, 46 AD2d 941, 941 [3d Dept 1974], affd 38 NY2d 870 [1976]). Even assuming the depth estimate of the depression by Ms. Samuels of one to one and one half inches is accurate, the Court still finds no grounds based on the record before it to find that the defect as portrayed by claimants was a dangerous condition (see Milewski v Washington Mut., Inc., 88 AD3d 853, 854-856 [2d Dept 2011] [defect in parking lot of between one and two inches in height where claimant tripped and fell, along with proof of dry and clear weather conditions, an unobstructed view of the alleged defect, and the appearance and location of the height differential, found to be trivial and not actionable]; see also Allen v Carr, 28 AD2d 155, 156-157 [4th Dept 1967]; Perez v State of New York, UID No. 2009-040-081 [Ct Cl, McCarthy, J., Oct. 28, 2009];Chwalek v State of New York, UID No. 2006-009-160 [Ct Cl, Midey, J., June 26, 2006]; Jones v State of New York, UID No. 2003-032-516 [Ct Cl, Hard, J., July 10, 2003]). Additionally, the Court notes that the absence of evidence of other falls in this depression, or even in the overflow lot as a whole, tends to support a finding that "while the [parking lot] surface was not perfect, it was safe for pedestrians who exercised reasonable care and looked at the pavement before stepping" (Schermerhorn v New York State Thruway Authority, UID No. 2012-029-003 [Ct Cl, Mignano, J., Feb. 15, 2012]).
The Court finds Kerr's testimony in large part irrelevant and/or unreliable, particularly his depth estimate of the depression, which was based solely on a review of claimants' exhibits 8 and 9.
As for the testimony of claimants' expert, it has been held that an expert "cannot reach his conclusion by assuming material facts not supported by evidence" (Cassano v Hagstrom, 5 NY2d 643, 646 [1959]), and that " '[an expert] may not guess or speculate in drawing a conclusion' " Hodge v Losquadro Fuel Corp., 29 AD3d 861, 862 [2d Dept 2006], quoting Cappolla v City of New York, 302 AD2d 547, 549 [2d Dept 2003] [internal quotations and citation omitted]). Here, the Court declines to credit the expert testimony from Schwartzberg, as it found his opinions to be conclusory, speculative and unsubstantiated. At no time did claimants' expert offer "empirical data or any relevant industry standard" to support his opinions (Fotiatis v Cambridge Hall Tenants Corp.,70 AD3d 631, 632 [2d Dept 2010]). He offered terse, subjective opinions based on the photographs, EBT testimony and the pleadings. He provided no reliable measurements of the depression depth, no meteorological data to support his argument that freeze and thaw periods created the depression, no credible information as to when the depression in claimants' photographs developed other than "weeks or months" before the accident, and no personal or direct observation of the depression to support his conclusions. In sum, having found claimants' expert's opinion to be general and conclusory, and without any credible or adequate factual basis, the Court gives no weight to the testimony (see Page v State of New York, UID No. 2011-041-514 [Ct Cl, Milano, J., Dec. 22, 2011]; Fiscella v State of New York, UID No. 2002-029-242 [Ct Cl, Mignano, J., Dec. 4, 2002]). The Court thus concludes that claimants have failed to establish the existence of a dangerous condition on defendant's property.
While he cited the Property Maintenance Code of New York State § 302.3 as applicable to the case, the Court finds this particular testimony vague and too generalized to support a finding of negligence premised upon violating this provision (see generally Brown v BT-Newyo, LLC, 93 AD3d 1138 [3d Dept 2012]).
In any event, even if the Court determined that the depression claimants allege Ms. Samuels stumbled over was a dangerous condition, the Court finds insufficient evidence of actual or constructive notice and causation. There was no persuasive evidence proffered that defendant created the condition. There also was no evidence of other falls at this depression or the overflow lot generally prior to May 8, 2006, or evidence of complaints regarding this pavement irregularity before Ms. Samuels' accident. The Court found Schwartzberg's testimony that the depression had been there for weeks and months to be conjecture and lacking any substantive basis. Garske and his more than seven member grounds crew were responsible for, among other things, inspecting multiple miles of roadway and sidewalks. Garske, the maintenance supervisor, whose testimony the Court credits as being forthright and credible, indicated that his inspection patrols included walking and driving different parts of the campus, and he testified that he had not seen this depression in the overflow lot prior to the accident. Under these circumstances, the Court finds defendant did not have actual or constructive notice of the condition prior to Ms. Samuels' accident. As for causation, the Court notes that the evidence suggests it was just as reasonable and probable that Ms. Samuels simply tripped and fell due to inattentiveness to her surroundings and a failure to "see what [could] be seen through the reasonable use of his or her senses" (Regans v Baratta,106 AD3d 893, 894 [2d Dept 2013]; see Perez v State of New York, UID No. 2009-040-081 [Ct Cl, McCarthy, J., Oct. 28, 2009] ["inattention" to where claimant was walking and thus failing to see "what was there to be seen, and thereby avoid an accident . . . accounts for his fall"]). Here, the evidence indicates that Ms. Samuels' view of the direction she was heading was unobstructed, that the depression she identified as the one she stepped in was located in an open area and not covered with debris or leaves, and that she was arriving at class close to the starting time and carrying a backpack in one hand and a portfolio with the artwork of fellow classmates in the other.
Therefore, for the aforementioned reasons, the Court finds that claimants have failed to prove by a preponderance of the credible evidence their claim against defendant. Accordingly, this claim is 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.
October 7, 2013
Albany, New York
James H. Ferreira
Judge of the Court of Claims