After a liability trial, the court found the State of New York not liable for negligence in Robert Hinz' 2015 fall from his wheelchair on the Hudson River Walkway after the front wheels caught in an expansion joint. The court found there was no prima facie evidence of a dangerous condition and dismissed the claim.
|Claimant(s):||KATHLEEN HINZ-SHAFFER, AS ATTORNEY IN FACT FOR ROBERT B. HINZ|
|Claimant short name:||HINZ-SHAFFER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||STEPHEN J. MIGNANO|
|Claimant's attorney:||RUTBERG BRESLOW PERSONAL INJURY LAW
By: Evan R.J. Baer, Esq.
|Defendant's attorney:||BARBARA D. UNDERWOOD, ATTORNEY GENERAL
By: J. Gardner Ryan, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 28, 2018|
|See also (multicaptioned case)|
The claim seeks damages for injuries sustained by Robert B. Hinz on June 24, 2015, when he was pitched forward out of his wheelchair after the front wheels were caught in an expansion joint gap on the Hudson River Walkway ("Walkway") in Poughkeepsie. His son (also named Robert) was pushing the wheelchair. Mr. Hinz, who was in his 90s at the time of the accident, has since passed away from unrelated causes. The claim is being pursued on behalf of the deceased's estate by his daughter as Executrix of the estate. The claim alleges negligence for failure to provide appropriate warnings of the existence of expansion joints and their possible danger to wheelchairs and other small-wheeled mechanisms. A trial on liability was held on April 3 and 4, 2018. Claimant submitted a post-trial brief by the court-mandated deadline of June 29. The court has not received a post-trial brief from defendant.
Claimant called the following witnesses: Robert B. Hinz, the deceased's son, and William Logan, a professional engineer and a civil engineer testifying as an expert in the field of traffic engineering and highway safety.(1) Defendant called the following witnesses: Zachary Diaz, a maintenance supervisor for the Walkway, testifying as a mutual witness (4/4/18 T: 273); and John Blair, a professional engineer testifying as an expert in the field of structural engineering (4/4/18 T: 273).(2) Claimants' Exhibits 1, 3-6, 8, 10-15, 19 and 21-32, and defendant's Exhibits B and F, were admitted into evidence.
In 1995, a not-for-profit organization, Walkway Over the Hudson, assumed ownership of the historic Poughkeepsie-Highland Railroad Bridge in order to transform it into a pedestrian and bicycle trail spanning the river. On completion of the public-private funded project, the New York State Office of Parks, Recreation and Historic Preservation ("OPRHP") assumed responsibility for administering public use of the Walkway Over the Hudson, and maintaining the trail features and associated public facilities. Ownership of the Walkway was transferred to the New York State Bridge Authority ("NYSBA"), which became responsible for maintaining the bridge deck, steel superstructure, piers, and substructure (see Exh. 1 [Final Design Report] at pgs. vii-viii, III-12; and Exh. 18 [NYSBA web page]). According to the final design report (Exh. 1), the Walkway would be classified as a "Multi Use Path/Trail" (pg. III-2), would be compliant with the Americans With Disabilities Act ("ADA") (pgs. III-8, 14), and the source used to obtain the ADA standards was the New York State Highway Design Manual ("HDM") (pg. III-3).
No State agency was involved in the construction or design of the park.
The facts of the accident are clear and undisputed. On June 24, 2015, the younger Hinz was pushing his father's wheelchair along the walkway and had succeeded in walking a substantial distance when the front wheels of his father's wheelchair dropped into the open expansion joint in the surface area. As a result, the wheelchair pitched forward and the father, who was not secured by the available seatbelt, was ejected and then hit the ground face first. He sustained significant injuries requiring transport and treatment at a local hospital (4/3/18 T: 201-203, 225, 241; 4/4/18 T: 287; Exh. 6 [accident report]).
Robert Hinz, the son, testified that the accident occurred at about 3:40 p.m. and it was a clear and sunny day. Prior to the wheelchair being caught in the expansion joint (he called it a "divot"), he did not notice other expansion joints, yellow paint, or warning signs on the Walkway as he was mostly looking at the scenery. His father had bad knees, and the type of dementia that affects short-term memory (4/3/18 T: 203-204, 208-209).
On cross-examination, Robert testified that the parking lot for the Walkway had gravel covering the surface, which made it difficult to roll the wheelchair. He recalled thinking it was a "pretty crappy" parking lot for disabled people (4/3/18 T: 218-220). There was a seatbelt in the wheelchair, but he did not secure his father with it on the day of the accident, and they did not normally use it. The seatbelt was there to keep people from sliding out of the wheelchair (4/3/18 T: 223-227). He was looking forward, not down, as they walked. He could see the pavement ahead. He described the "divot" as a space about six to eight inches wide between two pieces of metal. There were some remnants of yellow paint on it (4/3/18 T: 243-246, 256).
Claimant's expert, William Logan, P.E., testified(3) that he is a professional and civil engineer and spent 35 years working for the New York State Department of Transportation ("NYSDOT"). When he retired from NYSDOT in 2005, he was the Regional Traffic Engineer for Region 1, the Capital Region. Since retiring, he has testified as an expert on behalf of New York State "four to five times per year" (4/3/18 T: 22). As Regional Traffic Engineer, he conducted investigations of and designed multi-use facilities. In his opinion, the Walkway is a multi-use facility, not a recreational facility (4/3/18 T: 24-26).
He testified to being familiar with the Manual on Uniform Traffic Control Devices ("MUTCD"), the New York State Highway Design Manual ("HDM"), and other guidelines and manuals cited in the Final Design Report ("Report"). According to the Report, the ADA standards on which design criteria for the Walkway are based were taken from the HDM (Exh. 1, pg. III-3). The standard in the HDM for walking surfaces at pedestrian facilities was taken from the ADA Accessibility Guidelines, which provide that walking surfaces are permitted to have vertical changes in level up to 1/4 inch high, changes in level between 1/4 inch and ½ inch shall be beveled, and changes exceeding ½ inch shall be treated as a ramp. The HDM also states that pedestrian facilities must be constructed, maintained, monitored and updated to meet current ADA standards (see Exh. 11 [HDM], Ch. 18, § 220.127.116.11, and Exh. 15 [Best Practices Design Guide], § 14.4.3).
On July 13, 2015, two and a half weeks after the accident, Mr. Logan inspected the area. He measured the vertical drop-off at the expansion joint where the deceased's wheelchair had pitched forward, at 11/16 to 12/16 of an inch (4/3/18 T: 41). Based on his inspection, his review of the Report and cited publications, Mr. Logan concluded that the Walkway did not meet ADA standards, and that the expansion joint where the elder Mr. Hinz was injured was unsafe for people in wheelchairs approaching from either direction (4/3/18 T: 43, 99-101, 137).
Zachary Diaz testified as a mutual witness that as a Park Worker 3 for the New York State Parks he maintains the Walkway. He described the expansion joint where the accident occurred as the same as nine others on the main span of the bridge, and explained that expansion joints expand and contract. The metal in the joint is darker than the walkway surface, and there is yellow paint in the depression. The paint gets worn away by abrasion from the movement of the joint. They repaint it about once a year. The expansion joints are about fourteen inches wide "depending on the weather" (4/4/18 T: 273-283; see Exhs. 3-5 [photographs]).
Proceeding East on the Walkway, patrons must cross six expansion joints to get to the one where the accident occurred. He responded to the scene of the accident to administer aid. The son told him his father had fallen out of the wheelchair when they went over the expansion joint. Mr. Diaz testified that the joint did not look out of the ordinary or different from the others. He asked the son whether he had used the seatbelt in the wheelchair and the son responded "no" (4/4/18 T: 283-287).
It is part of Mr. Diaz' duties to prepare a Patron Accident Report, which he did in this instance. He tries to complete them as soon as possible after an incident (see Exh. 6). He drove the son back to his car and during the ride the son was upset about not having used the seatbelt (4/4/18 T: 287-296).
On cross-examination, Mr. Diaz testified that there are ten metal and about thirty foam-filled expansion joints on the bridge. Depending on the day, the weather and the time of year, gaps in the metal joints can be between one and three inches, and gaps in the foam joints can be up to three inches. The Walkway is open to the blind, skaters, people using wheelchairs, walkers, and cyclists. The Walkway's staff paint the gaps in the expansion joints yellow to alert people to a potential tripping hazard. Mr. Diaz confirmed there were no signs on the Walkway warning of expansion joints or changes in elevation (4/4/18 T: 306-308, 314-316).
Mr. Diaz was shown Exhibit 8, a series of Patron Accident Reports for accidents on the bridge prior to the one injuring the elder Mr. Hinz. In one incident where a woman fell out of a wheelchair and was injured, it appeared to Mr. Diaz that the accident occurred at the same expansion joint as this incident. Mr. Diaz did not feel that warnings other than the yellow paint were necessary (4/4/18 T: 314-315, 332).(4)
On redirect examination, Mr. Diaz testified that on the day of the accident, the yellow paint was not particularly visible from a distance, but the expansion joint involved was visible. The expansion joints are visible from hundreds of feet away. Before patrons encounter the depression in the joint, there is a nubby runner, or a traction pad, that the wheelchair would have to traverse. It is a different texture. The accident occurred walking westerly. He could tell that an expansion joint was involved in four or five of the seven Patron Accident Reports for accidents from 2009 through 2015 resulting in reports (4/4/18 T: 324-326, 335-336).
Defendant's expert, John A. Blair, testified that he has been a professional engineer with the OPRHP in the Taconic region since 2004. He worked as a civil engineer for DOT from 2002 to 2004 in the Poughkeepsie region, and as an engineer in the private sector from 1997 to 2002 (Court Exh. 2 [CV]). He was accepted by the court as an expert in structural engineering (4/4/18 T: 347).
Mr. Blair explained that structures like the Walkway cannot exist without expansion joints, which allow the steel to expand and contract. The expansion joint used here was practical, and in his opinion it conformed to the design. He read from section 18.9 of the HDM (Exh. 11): "This section does not provide guidance regarding the design of recreational walkways, shared-use paths and trails. It is intended only to provide guidance regarding access for pedestrians, and to ensure access for disabled people." He also referred to section 18.9.1, titled "Access for Persons with Disabilities," as stating that standards had not been adopted for recreational walkways as of 2006. Designers would use the guidelines, which allowed for deviation if necessary. He was not aware of any way a change in the walking surface or levels would not have occurred with an expansion joint like the ones here (4/4/18 T: 367-370).
On cross-examination, Mr. Blair testified that the Walkway "was designed a half-inch, it's a little bit more than a half-inch, it's five-eighths-inch, but due to the nature of the expansion joint and the tolerances, I think it's pretty reasonable, five-eighths is pretty reasonable" (4/4/18 T: 379). In his opinion, the Walkway meets the requirements of the U.S. Access Board and ADA standards (4/4/18 T: 399). Mr. Blair agreed that ADA compliance was required, if it was feasible. He disagreed with the opinion of claimant's expert that the Walkway is a multi-use trail or path, and instead concluded it was a recreational trail (4/4/18 T: 381). Mr. Blair then testified that he did not write defendant's expert report and he did not review it until after it was sent out, but it was based on an email that he sent to defendant's counsel.(5) He testified that in his opinion the Walkway is a recreational trail and not a recreational facility as stated in the report. He acknowledged that the Walkway is described in the Final Design Report as a multi-use path (see Exh. 1, pg. III-2; 4/4/18 T: 382-388).
On redirect, Mr. Blair testified that the change in elevation of the expansion joint is clearly visible. Millions of patrons have crossed over the ten expansion joints on the Walkway. Expansion joints are necessary to the functioning of the bridge, and the changes in elevation cannot be avoided (4/4/18 T: 404-405).
The defense rested its case, then moved to dismiss the claim for failure to establish a prima facie case, arguing that: the evidence at trial demonstrated the Walkway is reasonably safe for foreseeable users, and for those who exercise reasonable care; it was an open and obvious
condition that was essential to the functioning of the bridge and its existence; the duty of the State to provide adequate warning of conditions on the bridge was met because adequate warning is provided through the usual and expected uses of one's senses, and the State went further and highlighted the particular feature, using yellow paint; and the Hinzes negotiated at least six expansion joints before the accident without incident, indicating that the son was not paying sufficient attention at the time of the accident. Claimant's attorney argued that: the Walkway was held out to be ADA accessible; the State knew the expansion joints were a tripping hazard; and the State failed to adequately warn the public because there were no warning signs posted. The court reserved on the motion (4/4/18 T: 412-418).
It is undisputed that the State neither designed nor built the Walkway. The State's duty to users of the Walkway is derived from its status as the owner and the party responsible for its maintenance. As a landowner, the State has a duty of reasonable care in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Preston v State of New York, 59 NY2d 997 ; see also Basso v Miller, 40 NY2d 233 ; Clairmont v State of New York, 277 AD2d 767 [3d Dept 2000], lv denied 96 NY2d 704 ). To ultimately prevail on this claim, claimant must establish by a preponderance of the credible evidence that the State had actual or constructive notice of, or created, a dangerous condition, then failed to take reasonable steps to correct it (see Amendola v City of New York, 89 AD3d 775 [2d Dept 2011]; Fowle v State of New York, 187 AD2d 698, 699 [2d Dept 1992]), and that the dangerous condition was 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 ).
If claimant has failed to prove, by a preponderance of the evidence, that defendant had a duty to remedy a "dangerous condition" that existed on the Walkway when the accident occurred, then the court's inquiry ends. Claimant asserts that the following evidence proves defendant had such a duty: the opinion of Mr. Logan, claimant's expert, that based on his review of the ADA and other standards, as well as his inspection two and a half weeks after the incident, the expansion joint where the elder Mr. Hinz was injured was unsafe for people in wheelchairs approaching from either direction (4/3/18 T: 43, 99-101, 137); the height of the vertical drop-off exceeded ADA standards and Federal guidelines; and the seven prior Patron Accident Reports (Exh. 8).
The court found Mr. Logan to be credible and knowledgeable. However, the court finds that the only evidence of what Mr. Logan relied on for his opinion is that the vertical drop-off was 11/16 to 12/16 of an inch, which he concluded exceeded the ADA standard and Federal guidelines. He did not testify that anything else about the expansion joint was different or made it less safe than the other expansion joints on the Walkway, or that it was unsafe for non-wheelchair users (4/3/18 T: 41).(6) Rather, Mr. Diaz, one of the Walkway workers responsible for maintenance, testified credibly that: the expansion joint where the accident occurred was the same as nine others on the main span of the bridge; and it did not look out of the ordinary or different from the others (4/4/18: 283-287). Mr. Blair, defendant's expert, then testified that expansion joints are necessary to the functioning of the bridge, the changes in elevation cannot be avoided, and the Walkway was designed to have expansion joints with vertical drop-offs to 5/8 of an inch, which he concluded was reasonable "due to the nature of the expansion joint and the tolerances" (4/4/18 T: 379).
In light of Mr. Blair's admission that the CPLR 3101(d) report produced by defendant was neither written nor previously reviewed by him, the court hesitates to give much weight to Mr. Blair's opinions. However, his testimony that the Walkway was designed to 5/8 of an inch in reference to the vertical drop-off of the expansion joints, was unchallenged, and the height is close to the height measured by claimant's expert of 12/16 (6/8) of an inch. Regardless, the key point is that the elevation changes of the expansion joints are a necessary part of the design. The court finds that the condition claimant asserts is dangerous is a feature of the expansion joints integral to the design of the project, for which defendant cannot be held liable.
The evidence also shows that the height of the vertical drop-off, alone, is not evidence that the expansion joint posed a danger to users of the Walkway.(7) In Trincere v County of Suffolk, the Court of Appeals stated that whether a dangerous or defective condition exists so as to create liability "depends on the peculiar facts and circumstances of each case and is generally a question of fact" (90 NY2d 976, 977-978  [citations omitted]; see Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 77-78  [explaining Trincere and principle that court should also consider intrinsic characteristics and the surrounding circumstances]). Height alone is not dispositive. "There is no rule that municipal liability, in a case involving minor defects in the pavement, 'turns upon whether the hole or depression, causing the pedestrian to fall, is four inches - or any other number of inches - in depth' " (Trincere at 977, quoting Loughran v City of New York, 298 NY 320, 321-322 ).
Other than submitting evidence of height, the ADA and other standards and guidelines, and the expert opinion of Mr. Logan, claimant presented no evidence that the expansion joint where the accident occurred was dangerous. Claimant's reliance on the standards and guidelines is entirely misplaced. The ADA allows litigants to pursue actions only for injunctive relief, which the Court of Claims has no jurisdiction to provide, and does not provide a private right of action for monetary damages in a personal injury action (see 42 USCA § 12188 [a], § 2000a-3 [a]).
As stated by Judge Schaewe of this Court in Graham v State of New York, on finding the State not liable for injuries to a jogger who tripped over an expansion joint on the Centerway Bridge in Corning, New York,
"The purpose of the ADA was to address issues of discrimination for people with accessibility issues. It does not set safety standards nor does it alter the scope of the duty imposed by common-law negligence principles (see Lugo v St. Nicholas Assoc., 18 AD3d 341, 342 [1st Dept 2005]; Henning v State of New York, UID No. 2010-018-151 [Ct Cl, Fitzpatrick, J., Dec. 7, 2010])" (UID No. 2016-044-012 [Ct Cl, Schaewe, J., Nov. 7, 2016]).
Claimant's argument, that the vertical drop-off at the expansion joint exceeded the ADA standard, is a "red herring" (Graham v State of New York, UID No. 2016-044-012).
Claimant's additional arguments have no merit. The Manual on Uniform Traffic Control Devices (Exh. 12) does not apply because the yellow paint the Walkway staff applied to the expansion joints is not a "traffic device." The U.S. Department of Transportation's report on accessibility of various kinds of sidewalks and trails, and the Federal guidelines reviewed in that report, do not create a private right of action for damages, and do not set a maximum height for elevation changes on shared-use trails or paths like the Walkway (Exh. 14). The guidelines for changes in level on trails are provided in Tables 5-8.1 through 5-8.5 (see Exhs. E and 14 [§5.4.6]). Table 5-8.3 contains "n/a" in place of a height guideline for shared-use trails. The ADA standard for changes in level between 6 mm and 13 mm is limited to "Accessible Routes" (Exh. E).
Finally, claimant argues that defendant knew the elevation change was a tripping hazard, and that other patrons had been injured falling at expansion joints on the Walkway, so it had a duty to warn. The mere fact that the elevation change might cause patrons to fall, and that the State took precautions by applying yellow paint, is not evidence of a dangerous condition. In Trionfero v Vanderhorn, the Third Department referred to a between 5/8 and 7/8 of an inch raise of a slab above the adjacent slab on a sidewalk as a "trivial amount" (6 AD3d 903, 903-904 [3d Dept 2004] [finding plaintiff failed to raise issue of fact on summary judgment on issue whether defect was "trap or nuisance" where change in elevation was less than one inch, and plaintiff attributed her fall solely to the height differential]; see Guerrieri v Summa, 193 AD2d 647, 647 [2d Dept 1993]). Further, the evidence established that the expansion joints were open and obviously visible from a distance, and "a landowner has no duty to warn of an open and obvious danger" (Tagle v Jakob, 97 NY2d 165, 169 ). As for the prior accidents, there was evidence only of a few involving expansion joints since the Walkway opened in 2009, one of which occurred in 2012 and involved a wheelchair that happened to be at the same expansion joint as the one at issue here (Exhs. 8, 9). A handful of prior accidents on a bridge used by millions of people does not establish that a dangerous condition existed.
The court finds defendant not liable for negligence, dismisses Claim No. 127512, and denies defendant's motion to dismiss as moot. Defendant's argument regarding the failure to use the wheelchair seatbelt is also moot. The Clerk of the Court is directed to enter judgment accordingly.
August 28, 2018
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
1. See transcript of trial proceedings on 4/3/18 [4/3/18 T]: 26-27 [page references]. Mr. Logan's CV was admitted as Court Exh. 1.
2. It was Mr. Blair's first time testifying as an expert in court. His CV was admitted as Court Exh. 2.
3. Defense counsel made an oral motion in limine to preclude Mr. Logan's testimony as to the design of the Walkway on the ground that the State did not design it. The court overruled the motion and allowed the testimony subject to weight (4/3/18 T: 17-19).
4. These reports provide the following relevant information. Five of the accidents are described briefly as: a Rollerblade front wheel got caught in smaller expansion joint on May 1, 2010; scooter hit a crack between surface panels on November 10, 2009; front wheels of a walker got caught in a foam-filled expansion joint on July 21, 2011; woman fell out of wheelchair when the wheel got caught in an expansion gap on September 10, 2012; woman fell backward when hit gap between concrete slabs on May 10, 2014. Two additional reports are too faint to read.
5. The witness did not have the email with him during trial. Defendant's counsel said he had produced it.
6. There was also no evidence that the weather conditions were different from the day of the accident. Evidence of comparable climatological conditions that claimant has attached as an exhibit to the post-trial brief was not admitted at trial, so the court will not consider it.
7. Although finding that the condition claimant asserts is dangerous is a design element is enough to find defendant not liable, the court will briefly address the claim that the elevation changes violate the ADA and other standards and guidelines because the evidence shows that expansion joints are a common feature of bridges and sidewalks.