State is 40% negligent, Claimant is 60% comparatively negligent.
|Claimant(s):||PENNY BRENNAN and PAUL E. BRENNAN|
|Claimant short name:||BRENNAN|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||LEVENE GOULDIN & THOMPSON, LLP
By: Cynthia K. Manchester, Esquire
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Edward F. McArdle, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 2, 2020|
|See also (multicaptioned case)|
Claimant(1) was injured when she fell while visiting Taughannock Falls State Park with her husband, Paul Brennan, on October 11, 2014. Claimant filed and served a claim seeking damages for her injuries as a result of the State's alleged failure to repair a dangerous condition on a stairway. This matter has been bifurcated and this Decision addresses liability only.
Both Claimants were out for a drive to view the foliage on October 11, 2014 and saw signs for Taughannock Falls State Park. It was a clear, sunny day so they decided to go see the falls. This was the first time that they visited this Park. After parking their vehicle, they proceeded to the stairs which lead to the falls' overlook. Claimant was wearing casual clothing and wearing sunglasses. Her shoes were leather slip-on flats with rubber soles. She was ahead of her husband, going down the stairs staying near the right-hand side of the stairway. There was no railing but she said the stairs were relatively even in height and width. She testified that she would glance down as she stepped and then look up again. Claimant said, before she fell, she glanced down at the stairs and stepped down with her right foot expecting to be stepping onto the overlook landing. Instead, she stepped onto a more narrow portion of a step, like a protrusion, and her foot became lodged in a crevice. She fell, breaking her ankle. She testified that the crevice was not visible to her as she went down the stairs and, that to see it, one would have to lean forward, as her husband did when he took photos of the crevice.(2)
Paul Brennan said he was a few steps behind Claimant and saw her step down then collapse forward. Another patron called 911 on their behalf, and because it was so hectic, Mr. Brennan did not report the accident until October 17, 2014. He said they were at the hospital until midnight. A few weeks later, Mr. Brennan returned to the Park and took photos and measurements of the stairs and the crevice Claimant's foot encountered. Both of the Brennans said there were no warning signs or cones to denote the crevice.
The many pictures of the area taken by Mr. Brennan depict a series of stairs of relatively uniform width and depth down to a landing overlooking the falls. At the bottom of the stairs of similar width, there is a protrusion of rock, like a smaller step, about three feet long and four inches deep.(3) In the middle of this four-inch deep step is a crevice that was not measured. To get the photos of the crevice from above, Mr. Brennan leaned forward and pointed the camera down. Claimant circled the area where her foot got caught causing her to fall on Exhibits 16, 18, and 19, which are photos of the stairs from different angles. The many photos taken by Mr. Brennan show that the smaller four-inch deep step is visible from at least three stairs above.
The parties stipulated to the testimony of William Hughes, taken from his deposition. Mr. Hughes was the Assistant Park Manager at Taughannock Falls State Park and worked there from 1987 through 2006, and then from 2011 through the date of the accident. He was responsible for identifying needed repairs, purchasing materials for repairs, completing repairs or preparing work orders for repairs to be done at the journeyman level. He was not aware of any specific procedures or guidelines for inspections but needed repairs would be identified by him after his visual inspection. On June 9, 2012, he prepared a work order (4) for repairs to be done on the stairs as shown in Exhibit 1. The work order was prepared contemporaneously with his observations of repair needs and included several areas, including the specific area that Claimant alleges caused her fall. The repair request was approved on June 18, 2012. The repairs requested in the work order were not completed until 2015, well after Claimant's fall.
Mr. Hughes testified in his deposition that the area circled on Exhibit 16 presented a potential hazard to persons walking down the steps. Mr. Hughes did not feel it was necessary to warn patrons about the conditions which were the subject of the work order. Defendant objected to the statement by Mr. Hughes that the area identified on Exhibit 16 was a potential hazard. Defendant argued that a State employee cannot make an admission which binds the State and that whether or not it was a hazard is a question for the Court. Claimant contends it is an admission, goes to the duty to warn, and that the State had notice of the condition. On the record, the objection was overruled, with the Court to decide what weight to give Mr. Hughes' statement. Although an employee's statement made without personal knowledge of the facts or the authority to address the condition at issue may not bind the State, an employee with personal knowledge and supervisory authority can make an admission that binds the State and provides notice to the State of the condition (see Gavigan v State of New York, 176 AD2d 1117 [3d Dept 1991], [knowledge of Senior Superintendent of construction site sufficient to find State had notice]; Cox v State of New York, 286 AD 322 [3d Dept 1955], [admission based on hearsay does not bind the State]; Schmidt v State of New York, 181 Misc2d 499 [Ct Cl 1999], affd 279 AD2d 62, 65 [4th Dept 2000], [statements made by State employee acting within the scope of his employment may bind the State], see also Gilbert v State of New York, 174 Misc2d 142 [Ct Cl 1997]).
John VanValen is Mr. Hughes' immediate supervisor and the Park Manager at Taughannock Falls State Park. He testified at trial that he handles staffing, scheduling, and other issues at the park. He also performs some maintenance, but it is Mr. Hughes who identifies the areas that need repair. Mr. VanValen explained that the work order(5) goes to the Administration Office for approval and then to Regional Maintenance. This work order was approved by the Assistant Regional Director on June 18, 2012, and sent to the Regional Maintenance Director who approved it on the same day. Priority for the work was noted as "mid to low".(6) Mr. VanValen could not say who made this determination.
On the work order, it is the fourth item that relates to the area of Claimant's accident. It reads, "Overlook look out need Repair on Stones & Repointing".(7) Mr. VanValen said repointing is filling in cracks with mortar. This type of work is scheduled through Regional Maintenance and not performed by employees of the Park.
Mr. VanValen did not followup on the status of the work order, and he did not know if anyone else did. He testified that once a work order is completed, the date it was completed is noted and the form is returned to Mr. VanValen. On April 2, 2015, Mr. VanValen and a mason put sand down on the lower platform lookout area "where the stone was uneven".(8) A cone was also placed on the steps to warn of a broken stair. The mason was to return at a later date to complete the repairs. When Mr. VanValen was asked about the four-inch deep, partial step or protrusion,(9) he agreed that it appeared that concrete had extended the whole width of the stairs, and it originally had been flush with the dirt portion of the lookout landing. Mr. VanValen thought the landing dirt must have sunk revealing the concrete protrusion.
Mr. VanValen testified that between 400,000 to 500,000 people visit the Park annually and the lookout area is one of the most popular spots. There were no other reports of falls or accidents in the area prior to Claimant's fall, but Mr. VanValen agreed that he would only be made aware of falls that were reported.
To establish a prima facie cause of action for negligence, it is Claimant's burden to show, by a preponderance of the evidence, that Defendant owed a duty to the injured party, breached its duty, and that the breach proximately caused Claimant's injuries (Pulka v Edelman, 40 NY2d 781, 782 ).
The State of New York, like any other landowner, owes a duty to those entering upon its property to exercise reasonable care under the circumstances to maintain its property in a reasonably safe condition (Preston v State of New York, 59 NY2d 997 ; Basso v Miller, 40 NY2d 233 ; Tuttle v State of New York, 277 AD2d 1055 [4th Dept 2000]). However, the State is not an insurer, and it will not be held liable absent proof that it had actual or constructive notice of a potential for danger that reasonably could have been timely corrected (Frontz v State of New York, 147 AD2d 854 [3d Dept 1989]). Claimant must prove that (1) defendant owed a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) defendant either created the dangerous condition or had actual or constructive notice of it and failed to alleviate the condition within a reasonable period; and (4) the condition was a substantial factor in the events that caused Claimant's injury (Solomon v City of New York, 66 NY2d 1026, 1027 ; Keating v Town of Burke, 86 AD3d 660 [3d Dept 2011]; cf. Gordon v American Museum of Natural History, 67 NY2d 836 ).
Defendant argues that Claimant has failed to prove negligence and that she was either the sole proximate cause or comparatively negligent by failing to observe her surroundings.
According to Defendant, the defect was open and obvious and, if Claimant had employed the reasonable use of her senses she could have prevented her injuries (Tarricone v State of New York, 175 AD2d 308 [3d Dept 1991], lv denied 78 NY2d 862 ). If a hazard is open and obvious, the property owner has no duty to warn a visitor of the danger (Tagle v Jakob, 97 NY2d 165 ). Defendant also argues that given the foot traffic at this location, with no other reported accidents on the steps, the Court can infer that the stairs were reasonably safe for visitors using reasonable care.
Claimant points out that the protrusion and crevice are not visible from the upper stairs as they are obscured by the steps themselves. It was not until one is almost at the landing that it is visible. Even when visible, the four-inch protrusion appears almost flush with the landing in some of the photos making the depth of the crevice somewhat deceptive. Many of the photos that clearly depict the condition were, according to Claimants, taken from an exaggerated position or from the landing itself.
Even if a defect is open and obvious, it is not fatal to a negligence claim but is relevant to comparative fault (Westbrook v WR Activities - Cabrera Mkts., 5 AD3d 69 [1st Dept 2004]). "[E]ven visible hazards do not necessarily qualify as open and obvious" because the "nature or location of some hazards, while they are technically visible, make them likely to be overlooked" (Westbrook, 5 AD3d at 72, citing Thornhill v Toys "R" Us NYTEX, 183 AD2d 1071 [3d Dept 1992]; Saretsky v 85 Kenmare Realty Corp., 85 AD3d 89, 92 ). The Court in Saretsky considered plaintiff's contention that the walkway where she fell created "optical confusion" and reversed the lower court's granting of summary judgment. "[F]indings of liability have typically turned on factors such as inadequate warning of the drop, coupled with poor lighting, inadequate demarcation between raised and lowered areas, or some other distraction or similar dangerous condition" (Schreiber v Phillip & Morris Rest. Corp., 25 AD2d 262, 263 [1st Dept 1966], affd 19 NY2d 786 ).
Defendant points to the absence of prior accidents to argue that the Park is reasonably safe. Mr. VanValen testified that he would only know of any prior incidents if a report was made. Mr. Hughes, the employee in charge of determining those locations in the Park that needed repairs and arranging for the repair, opined that this location on the stairs presented a potential hazard to persons walking down the steps. "[T]here is certainly no rule saying that those maintaining a premises cannot be negligent until after their negligence causes injury" (Besserman v State of New York, UID No. 2015-028-001 [Ct Cl, Sise, P.J., Feb. 4, 2015]).
Mr. Hughes completed a work order for the repairs over two years before Claimant's accident and, despite opining that the shortened step/protrusion and crevice were a hazard, did not followup or pursue the completion of those repairs. The Court finds Claimant has proven the State's negligence.
Although, the Court finds from looking at some of the pictures in evidence that the shortened step/protrusion appeared, as Claimant testified, to be relatively even with the landing yet, some of the pictures in evidence also show that at least from four steps above, the condition can be seen. Given the nature of the area, with the stone steps and many uneven stones and crevices even on the landing, which are readily apparent from the pictures, Claimant clearly should have given more attention to where she was walking until she reached the lookout point.
Accordingly, the Court finds that the State is 40 percent liable for Claimant's injuries and Claimant bears 60 percent comparative negligence. A trial on the issue of damages will be scheduled by the Court as soon as practical.
Any motions not previously decided are hereby DENIED.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
January 2, 2020
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
1. Unless otherwise noted, Claimant shall refer to Penny Brennan as her husband's claim is derivative only.
2. See Exhibits 6, 7, and 9.
3. See Exhibit 10.
4. Exhibit 17.
5. Exhibit 17.
6. Exhibit 17.
7. Exhibit 17.
8. Exhibit 15.
9. See Exhibit 2.