Trial decision. Trip and fall at SUNY Farmingdale.
|Claimant short name:||POWERS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect the State of the New York as the proper defendant.|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Grey & Grey, LLP
By: Steven D. Rhoads, Esq.
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: John L. Belford, IV, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 14, 2020|
|See also (multicaptioned case)|
A bifurcated trial concerning the issue of liability only was held in this matter. The subject claim arose on July 1, 2014 at approximately 12:30 p.m. when claimant, Adriana Powers, tripped and fell on the sidewalk while walking in front of the Hale Hall building on the State University of New York at Farmingdale (SUNY) campus.
Claimant testified at trial that on July 1, 2014 she drove to the SUNY campus with her daughter, Danielle Powers, for the purpose of reviewing her daughter's transcript. Claimant described the weather conditions on that day as being sunny and nice. Claimant parked her vehicle in a parking lot near Hale Hall and walked with her daughter over to the business department where they learned that they needed to return later in the day. They planned to leave, get lunch and to return later in the afternoon. Claimant explained that she and her daughter were walking side by side, with her daughter walking to her left side. Claimant testified that her daughter told her to watch out for sticks which were lying on the ground. Claimant walked around the sticks and then felt something grab her leg. Claimant testified that when she took her next step, her foot remained in place and she fell to the left. She explained that when she fell her shoe came off and was located by the sidewalk expansion joint. She stated that the rubber caulking in the sidewalk expansion joint was not level with the concrete and protruded over it by approximately 1/10 of an inch. Claimant testified that she did not trip over a height differential but rather she fell because her foot either stopped or got stuck on the material in the sidewalk expansion joint.
Claimant explained that after her accident she drove to the first aid area where her daughter requested help and they waited in their vehicle until an ambulance arrived.
Two days after claimant's accident, claimant's husband and daughter returned to the area of claimant's fall and took photographs of the sidewalk expansion joint as well as the surrounding area. Two weeks after the accident, claimant also returned to the area of her fall and was present when another set of photographs were taken. She testified that when she returned to the SUNY campus, the material in the expansion joint was still protruding above the concrete. Claimant identified the general location of her fall in various photographs that were moved into evidence, however she was unable to narrow down the exact location except to set forth that she fell in the area depicted in claimant's Exhibit 6 which is an enlargement of an area shown in defendant's Exhibit H. Defendant's Exhibit H is a close up or zoomed in photograph of a portion of a sidewalk expansion joint with what claimant described as having rocks, as well as crumbly bits of concrete, in and around the sidewalk joint.
Thomas Cavataio, a SUNY police officer, testified on behalf of defendant at trial. He stated that he has been a SUNY police officer for 37 years and that he is responsible for patrols, service calls, accidents, aided cases as well as criminal reports. On July 1, 2014, Officer Cavataio responded to an aided call for claimant. He explained that he spoke to claimant, ascertained the nature of her injuries, determined that she needed medical attention and called an ambulance on claimant's behalf. Officer Cavataio testified that claimant was unsure of the location of her fall and that she informed him that she had tripped over a branch in response to his inquiry into how the accident occurred. After claimant was transported to the hospital, Officer Cavataio recorded all the information he received from claimant onto the incident report he was required to prepare. Officer Cavataio also stated that claimant informed him that the day of the accident was the first time claimant was on the SUNY campus. Officer Cavataio specifically recalled speaking only to claimant and not her daughter on the day of the accident. He remembered that claimant was sitting in the driver's seat of the vehicle when he interviewed her and claimant's daughter did not say anything to him.
On cross-examination, claimant testified that she did not recall informing Officer Cavataio that she tripped over a branch on the sidewalk. She guessed that she may have told him that her daughter told her to watch out for the sticks. Likewise, when confronted with the intake form from the hospital emergency room which indicated that claimant said she tripped on possibly a stick and fell forward on her left side, claimant testified that she did not recall telling anyone at the hospital she tripped on a stick.
Claimant later testified in that she has absolutely no recollection of speaking with Officer Cavataio. Additionally, she testified that parts of his testimony were inaccurate, for instance, this visit was not her first visit to the campus and his report indicates that she went in and reported the accident when in fact she stayed in the car and her daughter got out and reported the accident.
Danielle Powers testified that she was walking alongside her mother when she warned her mother to watch out for the sticks on the ground. At some point during their walk, Danielle felt something graze the back of her leg. When she turned around she saw her mother on the ground with only one shoe on. Danielle explained that she helped her mother get up off the ground and then went to get her mother's shoe which was on an expansion joint. She testified that this expansion joint appeared wider than most sidewalk expansion joints and had a rubber like substance in between it. She explained that along this section of sidewalk, only 2 or 3 sidewalk sections had this rubber material in between them.
Danielle Powers remembered speaking to Officer Cavataio after the accident. She stated that she provided some information to Officer Cavataio since claimant had bumped her head and was not fully answering his questions. Specifically, she informed Officer Cavataio that something caught claimant's shoe which caused claimant to fall. Danielle Powers testified that she provided Officer Cavataio with the location of claimant's fall and denied that she ever mentioned anything about sticks to him. She explained that the sticks were approximately a half block away from where her mother fell. She stated that, when Officer Cavataio asked claimant how she fell, claimant responded by saying that "...she just, just stumbled on some, like, her foot came out from under her, essentially.(2) " She also did not recall anyone in the hospital interviewing claimant about the accident.
William Gulya, an expert in concrete and concrete sidewalk installation testified on behalf of claimant in this matter. Mr. Gulya stated that he reviewed the deposition transcripts, photographs and plan details for the sidewalk design at the SUNY campus. He explained that the plans called for a half-inch expansion joint for the sidewalks which he stated is the industry standard. The half-inch joint allows for ample expansion and contraction of the concrete flags. He further explained that the plans called for placement of the expansion joints every 5 to 15 feet. In addition, the plans called for the material used for the expansion joints to be bituminous coated fiber a half-inch thick. The plans also necessitated the use of a joint compound when the sidewalk slab would meet a fixed object which does not include another sidewalk slab. Mr. Gulya testified that the joint compound in an expansion joint should only be used to fill very small gaps, gaps no more than an eighth of an inch. Mr. Gulya never went to the accident location or took measurements at the accident site.
Mr. Gulya testified that the expansion joint depicted in claimant's photograph marked as claimant's exhibit 6 is an inch and a quarter wide with concrete that was not poured against the pre-molded half-inch joint. In addition, he stated that the joint compound was not level and slightly above the top finished sidewalk elevation. He opined that this extra width of the expansion joint was due to either not having enough concrete or not pouring the concrete flush against the half-inch expansion joint. He contended that the photograph shows sloppily poured joint compound with some areas properly below the concrete sidewalk and other areas slightly above the top finished elevation of the sidewalk. Mr. Gulya estimated the height of the compound above the sidewalk to be between a sixteenth and an eighth of an inch. He explained that reasons for unevenness of the joint compound could include improper application or degradation of the material used. He based his estimate of height on relevant classes he attended as well as his 47 years of experience reading plans and laying concrete. He also believed the joint sealant was higher than the concrete because the self-leveling sealant appeared rounded in the photographs taken of the sidewalk.
Mr. Gulya also testified that, based on the photographs, there was additional concrete between the concrete flag and the expansion joint which appeared to be flaky as well as not professionally completed. He asserted that the two surfaces are not bonded correctly and the flaky section should be smooth. It appeared to him that there was not enough concrete to abut the expansion joint and that the additional concrete that is covered with silicone or joint sealant was added after the sidewalk flags were installed.
Mr. Gulya stated that the product used in the expansion joint is manufactured to withstand temperatures of up to 180 degrees. As a result, Mr. Gulya was unable to say that the material used in the expansion joint became sticky in the summer months. However, he testified that it would not surprise him that rubber soled shoes would stick because of the way the joint filler material was installed. Lastly, he opined that, when an expansion joint is overfilled with joint sealant, the sealant will raise above the finished concrete when the concrete expands thereby creating a tripping hazard.
Mr. Gulya explained that he does not know where claimant fell because she never identified an exact spot of her fall.
Jack Petrich, the Assistant Director of the Physical Plant at SUNY for the past 15 years, testified that his duties include supervising construction projects as well as managing design projects such as new roofing and baseball field renovations. He explained that he was aware of the plans and specifications for the sidewalk construction project in front of Hale Hall that took place in the 2013/2014 school year. He testified that there are approximately 4-5 miles of sidewalk at SUNY. He stated that the maintenance and grounds supervisors are responsible for maintaining as well as inspecting the SUNY sidewalks.
Mr. Petrich stated that he first became aware of claimant's accident when he was contacted by the New York State Attorney General's Office. As a result, he conducted an inspection of the sidewalk where the accident occurred and was present on October 5, 2018 when a series of photographs were taken. He explained that the sidewalk contract specifications and plans called for an expansion joint every 30 feet, as well as a control joint every 5 feet. He testified that the specifications required joint filler be put in the expansion joint at issue in this case. He set forth that the pre-molded joint material is a half-inch thick minimum as per the contract specifications with a radius tooling. Thus, a half-inch radius curve is required as per the specifications not a one-eighth of an inch radius curve, as stated by Mr. Gulya. He testified that the October 5, 2018 photographs depict the concrete curving down to meet the joint filler and not, as put forth by Mr. Gulya, the joint filler going over the concrete.
Mr. Petrich testified that polyurethane caulking goes on top of the joint material and although not in the specifications, the architect approved a polyurethane caulking that was good for filling joints up to an inch and a half. Mr. Petrich stated that based upon his inspections of the area and a review of the specifications, the expansion joint was within the specifications of the contract. Mr. Petrich testified that when he inspected the sidewalk area the expansion filler material was not raised. He also asserted that the sidewalk expansion joint would not be flagged to be repaired by the contractor because there was not a hazard or defect in the subject area to be repaired. He contended that the enlarged photographs distort the actual size of the expansion joint.
Mr. Petrich testified that caulking is a flexible material which he has never seen buckle. In addition, the pre-molded joint filler is compressible but not to the extent that it would force the polyurethane caulking up over the concrete. He asserted that if the material raised as much as an eighth of an inch it would be noticed.
Mr. Petrich testified that in his experience on campus, there have been no incidents where the caulking material became sticky. There have also been no complaints about trips and falls on caulking at this location or anywhere else encompassed by the sidewalk project.
Defendant has a duty to act as a reasonable person would in maintaining its premises in a reasonably safe condition (Basso v Miller, 40 NY2d 233 ; Preston v State of New York, 59 NY2d 997 ). In order to recover damages for a breach of this duty, claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take appropriate remedial action (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ).
"To constitute constructive notice, the defect must be visible and apparent and it must exist for a sufficient length of time before the accident to permit the defendant an opportunity to discover and remedy it" (Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798 [2d Dept 2003]). A property owner may not be held liable in damages for trivial defects that do not constitute a trap or nuisance, over which a pedestrian might merely stumble, stub his toes or trip (Zalkin v City of New York, 36 AD3d 801 [2d Dept 2007]). Whether or not a dangerous or defective condition exists on the property of another so as to create liability depends upon the facts and circumstances of each case (Trincere v County of Suffolk, 90 NY2d 976, 977 ). The width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury are all factors to be taken into consideration when analyzing whether the defect was a dangerous condition so as to create liability (id. at 978).
Claimant has failed to establish that the condition of the expansion joint was of sufficient size and character so as to constitute a dangerous condition on the sidewalk at the time of the accident. The credible evidence established that if there was raised joint filler, it was so slight as to be indiscernible in the photographs submitted into evidence which depict the general area where decedent fell (see Cl Exhs 6-7, 9-10 and Def Exhs B, G-J). In addition, the credible evidence failed to establish that either the installation of the joint filler or the material itself caused claimant to trip and fall. The evidence established that the sidewalk was reasonably safe for pedestrian traffic. The accident occurred while it was still light out and there was no impediment to claimant's view of the sidewalk. Under these circumstances, the Court finds that the condition of the walkway does not constitute a trap or a nuisance.
Claimant has also failed to establish that defendant had actual or constructive notice of a defective condition at the location where she fell. There were no previous complaints nor were there any accidents on the sidewalk in front of Hale Hall. There was also no evidence establishing how long the condition existed prior to the accident so as to establish constructive notice.
Therefore, based upon the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, her claim against defendant in this action. Accordingly the claim is hereby dismissed in its entirety.
Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly.
August 14, 2020
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims
2. All quotes are from the trial transcript unless otherwise noted.