Lugo v State of New York

[*1] Lugo v State of New York 2005 NY Slip Op 50792(U) Decided on March 28, 2005 Ct Cl Sise, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 28, 2005
Ct Cl

VELIZA LUGO, Claimant(s)

against

THE STATE OF NEW YORK, Defendant(s)



101169



Claimant's attorney:CITAK & CITAK, ESQS.

BY:Donald L. Citak, Esq.

Defendant's attorney:HON. ELIOT SPITZER, ATTORNEY GENERAL

BY:Denis J. McElligott, Esq.

Assistant Attorney General

Third-party defendant's attorney:

Richard E. Sise, J.

Synopsis:

Claimant failed to establish staircase was negligently designed and constituted a dangerous condition. Claim dismissed.

Recitation:



Text of the decision: [*2]

This is an action for personal injuries sustained by Claimant on March 31, 1999 in the library building on the campus of the State University of New York at Old Westbury (SUNY). The trial of this Claim was bifurcated and this decision pertains only to the issue of liability.

Claimant, Veliza Lugo, had enrolled as a full-time student at SUNY in the fall of 1998 and was enrolled as a full-time student on the date of her accident, March 31, 1999. On that date, Claimant's course in International Short Stories was scheduled to meet on the second floor of the library for a lesson in research techniques. Claimant testified that on that date she was wearing jeans, a tee-shirt and a pair of flat-soled "Sketchers" sneakers, which she stated she wore "practically every day."

Claimant testifed that on only one prior occasion had she been on the second floor of the library during her first semester at SUNY. She described the staircase that joins the first to the second floor as "winding or spiral" with stairs winding to the left, leading to a landing and then continuing to climb to the second floor. On this prior climb up the stairs she kept to the right. She described the condition of the staircase[FN1] as it existed at the time of that prior trip to the second floor as being "worn and the rubber was coming off the edge.[FN2]" On the date of the accident she described the condition of the staircase as "the same." On the accident date, following the classroom instruction, the class was to proceed downstairs to use the computers. Claimant testified she descended the stairs, staying to her right within six or seven inches of the handrail, with her friends Stephanie and Charlie to her left, following behind, respectively. Claimant carried her books in a shoulder book bag on her left shoulder. After descending the first flight and moving beyond the landing, Claimant testified she was "four or five" stairs down the winding flight when, as she stepped with her right foot, she started to fall and tried, unsuccessfully, to reach for the handrail (T-57). Claimant stated the first indication she had that something was wrong was when she started to fall (id.). She further testifed that her right foot did not come into contact with the stair below before she started to fall (T-59). She stated her left leg bent beneath her and she came to rest in a sitting position facing down the stairs, five or six steps up from the bottom. Within minutes her professor and a security guard arrived at the scene.[FN3] Thereafter, Claimant was transported from the scene by ambulance to North Shore Syosset Hospital.

On cross-examination, Claimant testified that as she approached the staircase she observed more than half the stairs had something wrong (T-89) and clarified that her description [*3]of the condition of the stairs, which she related on direct examination, related only to the day of the accident. Claimant was aware that the stairs were narrower on the left-hand side of the staircase as one ascended the staircase. In describing her fall, Claimant was unsure whether her right foot made any contact with the stair immediately below as she fell (T-105-106). Claimant added that she was "slipping" as she stepped with her right foot (T-105).

Joseph Farahnik, a licensed professional engineer in New York State since 1988, testified on behalf of Claimant[FN4]. Farahnik testified he inspected the at-issue staircase on August 25, 1999, at which time he took measurements, photographs and conversed with the Claimant. The staircase was described as winding to an intermediate landing and from the intermediate landing to the second floor was a set of straight stairs. Farahnik measured the width of each step on the winder, of which there were 16, to be 82 inches. The risers were 5¾ inches in height and the tread depth, descending, was 9 inches on the right-hand side and 17¾ inches on the left-hand side. Farahnik opined that the 9-inch tread depth was a dangerous condition that was inconsistent with good and safe engineering and building practices at the time the library was constructed. Relying upon Defendant's engineer's report, Farahnik testified the construction plans were dated June 1, 1978 and the library was completed in 1983. Farahnik testified that the New York State Building Code was not adopted until 1984; therefore, pursuant to the New York Codes Rules and Regulations, other standards were consulted. Farahnik testified the National Fire Protection Association (NFPA) standards would apply to interior staircases. He stated that winders were not permitted under the NFPA standards applicable at the time the library was designed. Farahnik further testified that pursuant to the 1973 version of NFPA standards section 5-3 "Interior Stairs and Smoke-Proof Towers", the tread depth must be a minimum of 10 inches in Class A buildings and nine inches in Class B buildings (T-160). The library, he testifed, was a Class A structure. In Farahnik's opinion, the library staircase did not meet the lone exception provided by NFPA for "monumental stairs"[FN5] due to, inter alia, a too narrow tread depth. Farahnik measured the handrail height [from step nose to top of handrail], descending, to be 30 inches on the right and 33½ inches on the left. Farahnik testified the NFPA requirements permitted handrails to be no less than 30 inches in height nor more than 34 inches in height (T-174 -175)[FN6].

At the conclusion of the Claimant's case, upon Claimant's stipulation (T-6) and Defendant's application, the Court dismissed so much of the Claim as was premised upon the Defendant's failure to properly maintain the premises and reserved decision on whether a prima facie case was presented on the issue of negligent design of the staircase (T-9-10), respectively.

Defendant's first witness was Robert Besch, a SUNY peace/police officer employed at the Old Westbury campus since 1984 whose principal duties were administrative, which included [*4]maintaining records of accidents on campus. On March 31, 1999, Besch was working the 8 a.m. to 4 p.m. shift when he received a radio dispatch to respond to the library to investigate the at-issue accident. When he arrived Besch observed the Claimant "sitting or laying" toward the bottom of the "central [curved ] stairs." Besch testified he did not recall Claimant's clothing, other than she was wearing "platform shoes" which he described as having a three inch height.

Librarian, Barbara A. Walsh, a 23-year employee at SUNY Old Westbury, testified she came out of her office - which was located behind the staircase - when she saw a commotion on the staircase. Walsh went to the staircase and saw Claimant seated on the steps crying and upset, attended by a public safety officer and another student. Walsh described the shoes worn by Claimant as three to four-inch platform shoes.

Harlan Fair, a civil engineer, testified as Defendant's expert. Fair inspected the at-issue site on April 24, 2002, at which time he took measurements of the "curved or circular" staircase. Fair testified that he measured the width of the step, the height of riser, the depth of the tread and the diameter and height of the handrail. Fair stated the measurements of each stair was the same from the bottom to the top of the staircase. The tread depth, descending, was 9 inches on the right hand side (inside) and 17½ inches on the left side (outside). Each step was 82½ inches in width from the narrow side (inside) to the wide side (outside). The depth of the tread, measured 12 inches from the inside, was 10½ inches in width. Fair testified the measurement was necessary as that is where an individual would walk and "the codes" indicate a requirement for that point on the stair.Fair measured the interior handrail to be 32 inches above the "nosing point"- the point where the horizontal tread and riser meet; and the second or higher interior handrail (see Exhibit 1) to be 41 inches above the nosing point and 3½ inches further out from the innermost aspect of the stair.

Fair testified there is a difference between a winder tread - which describes any tapered stair tread - and a winder system. Fair stated a winder system is a stairway that turns "sharply - 90 degrees" through three treads to make the circular pattern. Fair testified Claimant's expert erred in calling this a winder system instead of a curved stair case and created additional confusion by using winder stair and winder stairway system interchangeably and highlighted this point through a diagram from NFPA which illustrated three stairway systems (Exhibit G [NFPA]). Fair expressed the opinion that on the date of the accident, the subject stairs and stairway system conformed with the New York State Building Code.

On cross-examination Fair testified the subject stairs were "code compliant" as related to the 1984 State Building Code and that the NFPA 101 standard is an ancillary standard to the State Building Code. Fair testified that although the library staircase was a required stair, the 1984 Building Code exempted it from compliance as an "ornamental stair" pursuant to

9 NYCRR § 764.1(c) - a phrase not used in the NFPA standards which Fair equated to monumental stairs. Fair conceded that he omitted from his revised report the fact the handrails did not comply with the minimum height requirements in the 1984 Building Code. When questioned about the requirements set forth on Exhibit G for a curved staircase Fair testified the stairs also did not meet the two-to-one ratio for the stairs inner radius.

A landowner is not the insurer of the safety of those coming onto the premises, but rather "must act as a reasonable person in maintaining its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the [*5]injuries that might result, and the burden of avoiding the risk (Miller v State of New York, 62 NY2d 506, 513; Basso v Miller, 40 NY2d 233). The Claimant bears "a very fundamental and necessary burden" to show a dangerous or defective condition because of which defendant should have foreseen the reasonable possibility of injury to users (Allen v Carr, 28 AD2d 155, 157, affd 22 NY2d 924), yet failed to remedy or warn in a timely fashion (Basso v Miller, supra). Creation of a dangerous condition constitutes actual notice (Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249, affd 64 NY2d 670). The pertinent inquiry is not whether the property has been kept in perfect condition, eliminating all potential hazards, but whether the premises were reasonably safe in light of all the surrounding circumstances (McMullen v State of New York, 199 AD2d 603; Tripoli v State of New York, 72 AD2d 823). Conclusions based upon mere speculation or conjecture are without probative value (Mueller v Hannaford Bros. Co., 276 AD2d 819, quoting, Maiorano v Price Chopper Operating Co., 221 AD2d 698, 699).Finally, claimant has the burden of proving his case by a fair preponderance of the credible evidence (see PJI 1:23). The trial court, in its capacity as trier of the facts, must view the witnesses and consider their statement upon direct and cross-examination in determining whether each witness is credible and the weight, if any, to be given to the evidence (see PJI 1:8, 1:22, 1:41; see also Johnson v State of New York, 265 AD2d 652 ).

The issues before the Court are which standard applies to the construction of stairs in the SUNY library and what weight is to be given to a deviation, assuming one or more exist, from the applicable standard. In many ways, the experts in their testimony were attempting to fit the square peg into the round hole in their endeavor to apply the various standards to a staircase which in the Court's opinion defied being pigeonholed. Each expert testified regarding the requirements of the New York State Uniform Fire Prevention and Building Code (Building Code) as well as the standards contained in the Life Safety Code promulgated by the National Fire Protection Association (NFPA)[FN7] related to the construction of stairways in buildings such as the library at SUNY. However, the evidence established, and the Court finds, that the at-issue staircase of the SUNY library building, pursuant to the Building Code's preexisting uses, are not required to comply with the Building Code requirements unless the building undergoes a renovation which, during any six-month period has costs exceeding 50% of the replacement cost of the building (see 9 NYCRR 1231.3[c]; Vachon v. State of New York, 286 AD2d 528; Cole v Emunah Gen. Contr., 227 AD2d 877; Wilson v Proctors Theater & Arts Ctr. & Theater of Schenectady, 223 AD2d 826). As there was no evidence that the SUNY library underwent any renovations, the Court must necessarily hold that the Building Code is inapplicable to the case at bar (Meehan v David J. Hodder & Son, Inc., 13 AD3d 593).

Prior to the enactment of the Building Code in 1981 (L 1981 ch 707 ), the State Building Construction Code provided guidance to the building industry. The Construction Code did not contain standards for stairways but rather identified as a generally accepted standard the NFPA 101 - Life Safety Code as applied to Exits and Enclosures[FN8]. A "generally accepted standard" was [*6]defined as "[a] specification, code, rule, guide or procedure in the field of construction or related thereto, recognized and accepted as authoritative" (Building Construction Code § C108-3; 9 NYCRR §803.3). A violation of the NFPA Life Safety Code, which the Court finds applicable by reference in the Building Construction Code[FN9] - not incorporation - (see e.g. Town of Islip v Cuomo, 147 AD2d 56; People v Shore Realty Corp., 127 Misc 2d 419), would constitute some evidence of negligence (see Elliott v. City of New York, 95 NY2d 730, 734-735) and may establish a standard of care (see Guldy v Pyramid Corp., 222 AD2d 815). Here, however, the Court cannot conclude that the at-issue stairway was negligently designed. The stair system was not a winder system as such is depicted in Defendant's Exhibit G or as opined by Claimant's expert - who the Court finds did misconstrue a tapered stair tread with a winder system. Rather, and as opined by Defendant's expert, the Court finds the at-issue staircase to be a curved stairway - which, pursuant to the 1976 Life Safety Code was permitted as an exception. Moreover, the stairs had uniform riser heights and tread depths on the path Claimant followed, and the Court, crediting Defendant's expert, finds that measuring the tread depth at a point 12 inches in from the innermost edge is appropriate. As such, the tread, at 10½ inches, exceeded the minimum tread depth required by the 1976 Life Safety Code. Lastly, there is no record evidence of similar falls on the inside portion, or any portion, of the stairway in the 15 years the library had been open at the time of the accident (see Orlick v Granit Hotel & Country Club, 30 NY2d 246) from which the Court could otherwise infer the stairs as constructed constituted a dangerous condition.

The Court further finds Claimant did not testify that as she placed her right foot down she began to fall - a scenario which would have been consistent with a claim premised on the allegedly defective tread depth and missing a step. Claimant's testimony - the only testimony regarding the fall - revealed that Claimant was unsure at to what caused her to fall and the Court declines, on this record, to join in the speculation. However, it is of note that two witnesses who arrived on the scene close in time after the fall described Claimant as wearing platform shoes with at least a three-inch heel, contrary to Claimant's description as wearing flat-soled shoes.[FN10]

Addressing the subject handrail and cognizant that, "[e]ven if the fall was precipitated by a misstep ... the absence of the rail, if required by law, would seem to be a proximate cause of the accident. . ." (Viscusi v Fenner, 10 AD3d 361, 362 [ citations omitted]), the Court finds that Claimant's proof established that there was a handrail on each side of the staircase, and these were within the acceptable height range set forth in the NFPA guidelines. Defendant's proof as to the handrail height on the inside of the staircase (32 inches), although different from Claimant's proof, was nevertheless within the acceptable range. The Court declines to accept Claimant's expert opinion that the presence of additional handrails placed above the conforming handrails contributed to this accident (T-257). Accordingly, the Court finds the handrails were neither negligently designed nor constituted a dangerous condition.

Based upon the foregoing analysis, the Court finds that Claimant failed to establish by a preponderance of the credible evidence the existence of an unreasonably dangerous condition or [*7]lack of reasonable care. Accordingly, the Claim is hereby dismissed. All motions upon which the Court reserved judgment are denied.

The Clerk of the Court is directed to enter judgment accordingly.

Appendices: Footnotes

Footnote 1:Exhibits 1-4 were identified by Claimant as photographs of the staircase.

Footnote 2: When questioned by the Court, Claimant explained the carpet on the stairs was worn, the rubber was peeling back and the carpet was coming off.

Footnote 3: Claimant testified the security officer told her "other kids have fallen here" and the Court reserved decision on the Defendant's objection to that testimony and directed the parties to brief the issue in their post-trial submissions. Claimant did not brief the issue (Defendant made no submission whatsoever) and apparently abandoned this offer instead relying on the premise that defective construction in this instance would constitute actual notice (Claimant's post-trial memorandum p 18). The objection is now sustained.

Footnote 4: Upon stipulation Farhnik's curriculum vitae was received into evidence (Exhibit 8).

Footnote 5: In a candid moment, Farahnik acknowledged he was not able to figure out what they (NFPA) meant by monumental stairs (T-164).

Footnote 6: Farahnik's opinion as to causation was limited to the asserted tread depth and handrail height defects (T-203-204).

Footnote 7: The Life Safety Code has been adopted by jurisdictions other than New York.

Footnote 8: Individual industry standards promulgated by other professional organizations, such as ANSI, are identified as sources for guidance in particular areas of construction.

Footnote 9: The Court utilizes the 1976 Life Safety Code as there was testimony that the building plans for the SUNY library were dated in 1978.

Footnote 10:Defendant's witnesses Besch and Walsh.