Koepke v State of New York

[*1] Koepke v State of New York 2005 NY Slip Op 51789(U) [9 Misc 3d 1125(A)] Decided on August 24, 2005 Ct Cl Lebous, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 24, 2005
Ct Cl

KEVAN KOEPKE, Claimant,

against

THE STATE OF NEW YORK, Defendant.



107183



For Claimant:

JAMES M. HARTMANN, ESQ.

For Defendant:

HON. ELIOT SPITZER, ATTORNEY GENERAL

BY:Joseph F. Romani, Assistant Attorney General, of counsel

Ferris D. Lebous, J.

Claimant Kevan Koepke alleges he was injured when he slipped and fell off a concrete ramp in a room in the Homer Folks Facility located in Oneonta, New York on February 6, 2001. The trial of this claim was held in the Binghamton District on April 26, 2005. The parties requested and were granted additional time to submit post-trial memoranda. This Decision addresses the issue of liability only.

FACTS

On February 6, 2001, claimant, age 49, was working as an employee of Satellite Services, Inc. (hereinafter "Satellite") as a property clerk at the Homer Folks Facility in Oneonta, New York. The Homer Folks Facility (hereinafter "Facility") is owned by the State of New York (hereinafter "State") and was originally constructed in or about 1930 and operated as a tuberculosis sanitarium. In 1979, a State construction project at the main building of the Facility included the construction of the concrete ramp in the property room located in Wing "Y" in order to resolve a height differential between the floor of the old building and the new construction. In 1989, the State entered into a lease with the United States of America under which the federal government was going to operate the Oneonta Job Corps for vocational training out of the main building in the Homer Folks Facility. Satellite, was a sub-contractor, with the federal government regarding the operation of the job corps center.

The parties agree that the ramp at issue is 16 feet 4 inches in length and 6 feet 3 inches wide and slopes upwards 24 inches where it meets the upper floor level. As one enters the property room at the lowest level or at the bottom of the ramp through the only door, there is a wall along the right side and along the top of the ramp where it meets the upper floor and thus, the ramp is open only on [*2]the left side toward the upper floor. Along this left side of the ramp, there is a vertical wall, the height of which decreases as the ramp slopes upwards along its length of 16 feet 4 inches. Stated another way, the height discrepancy between the floor of the ramp and the upper floor is 24 inches at the point of the door, but then decreases as the ramp slopes upwards to the point where it meets and is level with the upper floor. Claimant described the point of his fall off the upper floor onto the ramp at about the halfway point of the ramp, marked by an "X" on claimant's Exhibit 14. Claimant conceded that during his deposition he had estimated the height differential at the point of his fall as "probably"[FN1] about 1 foot. It is undisputed that there was no guardrail along the edge of the upper floor, although claimant testified that there was yellow checkered tape on a portion of the edge.[FN2]

Claimant indicated that on the day of his accident he arrived at work at 8:00 a.m. as usual, unlocked the property room, and proceeded to engage in his normal duties. Claimant explained that throughout the morning students were entering the property room on a sporadic basis to obtain clothing at which point claimant would get up to help from his office located in the property room near the top of the ramp. Claimant testified that clothing and uniforms were usually stored on a three-tiered rolling cart located at the top of the ramp itself, but on this day the cart itself was located on the upper floor due to a lack of space. Claimant indicated that at about 11:00 a.m. a student came in looking for a uniform and he spent about 5 minutes looking on the rack for the same. Claimant explained that when he found the bag containing the uniform, his back was to the edge of the upper floor and ramp and the student was to his right. Claimant testified that he picked up a bag of clothes off the rack, took one step back and turned to hand the bag to the student, when he fell off the upper floor onto the ramp landing on his right elbow and right shoulder. Claimant conceded that immediately preceding his fall he was not thinking or paying attention to the drop-off to the ramp behind him and did not realize how close he was to the edge.

Finally, claimant testified that during his employment with Satellite he never encountered or received any instructions or supervision from any State employee, but rather was supervised by his supervisor Doreen Watson, also a Satellite employee.

Claimant next called Bernard J. O'Neill, a licensed engineer in New York for the past 30 years, as an expert in the field of engineering who examined the property room and ramp at issue here. Mr. O'Neill testified that at the time of this accident the 1984 State Uniform Fire Prevention and Building Code (hereinafter "1984 State Code") was in effect, although it was subsequently superceded.[FN3] Mr. O'Neill opined that the failure to erect a guardrail between the upper floor and the edge of this ramp was a violation of the 1984 State Code and, as such, constituted a dangerous condition. More specifically, Mr. O'Neill testified that 9 NYCRR 762.1 (f) requires a guardrail or [*3]parapet on a walking surface adjacent to a change in elevation in excess of 18 inches. Mr. O'Neill testified that the guardrail should have been erected along the entire 16 foot 4 inch length of this ramp, even though only a portion of the height differential exceeded the 18 inches mentioned in the 1984 State Code.

Mr. O'Neill also testified that the fact that the construction of the ramp in 1979 pre-dated the effective date of the 1984 State Code, as well as pre-dated the time the federal government started using said Facility (in 1989) is irrelevant since the classification of the use of the building changed in 1989, thereby triggering the applicability of the 1984 State Code. (9 NYCRR 1231.2). According to Mr. O'Neill, when the Facility was used as a tuberculosis sanitarium starting in 1930 it was classified as Group C6 (hospital), but then changed to Group C5 (school- training center) on January 1, 1989 when the Facility started to be used as a job corps center under the terms of the lease between the State and the federal government. (9 NYCRR 703.6 & 703.7). It was Mr. O'Neill's opinion that such a change in use constituted a "conversion" as that term is defined in 9 NYCRR 1231.2.

On cross-examination, the witness conceded that the 1984 State Code did not mandate that the guardrail would have to extend the entire 16 foot 4 inch length of the ramp covering the portions with less than an 18 inch differential, but opined that the failure to extend a guardrail the entire length would be "illogical and unsafe."

On its case, the State called Doreen Watson as a witness. Ms. Watson testified she had been the property manager for the Oneonta Job Corps for the past 17 years. Ms. Watson indicated she has been located at the Facility throughout this time, although her employer had changed during this time.[FN4] Ms. Watson stated that she was claimant's supervisor at the time of this accident and was working on the day of this accident. The witness indicated that the property employees had begun handing out uniforms to the students the week before but not all students had received them. Ms. Watson testified that she had stored the remaining uniforms waiting to be picked up on the rolling cart and, on this day, had positioned the rack on the upper floor level of the property room. Ms. Watson recalled claimant had begun helping a student look for a uniform. However, the witness stated that she did not see claimant fall because she had just left the property room, but did see claimant on the floor of the ramp on the lower level upon her return. Ms. Watson also testified that throughout her tenure, she has had no dealings with any State employee. The witness also testified that she was not aware of any prior accidents involving this ramp.

The State next called John P. Stump, Jr., the building superintendent at the Facility and employee of the State Office of General Services ("OGS") for the past 10 years. The witness indicated that the property room was not an area inspected or maintained by OGS, since the federal government contracted out such responsibilities to a series of management corporations, currently KRA Desi and formerly Satellite at the time of this accident. Mr. Stump indicated that he was [*4]unaware of any prior accidents involving this ramp.

The State called Scott MacPherson, a licensed architect in the State of New York, as an expert in the field of architecture. Mr. MacPherson has been employed by the State OGS for 19 years and is currently an associate architect team leader supervising the design, construction and safety features at correctional facilities. Mr. MacPherson's responsibilities include issues of compliance and application of various safety codes including the 1984 State Code. The witness conducted an examination of the subject ramp and property room on March 30, 2005. The witness confirmed the prior description of this ramp as 16 feet by 4 inches in length. Mr. MacPherson also measured the height differential at the estimated spot of claimant's fall, using the "X" marked by claimant on Exhibit 14, and found a 12 inch differential.

Mr. MacPherson opined that no building code was in effect at the time of construction of this ramp in 1979 because it was constructed prior to the adoption of the 1984 State Code. Further, Mr. MacPherson testified that 9 NYCRR 762.1 (f) regarding guardrails did not apply because there was no provision requiring the retroactive application of the 1984 State Code, unless renovation costs within six months exceed 50% of the replacement cost of the building. Mr. MacPherson also stated that even if 9 NYCRR 762.1 (f) were applicable, there is no provision that the guardrail must be extended beyond the point at which the height differential is less than 18 inches, namely where claimant actually fell.

This claim is stated in terms of common law negligence, as well as a violation of Labor Law 200 (1). More specifically in relation to the negligence claim, claimant alleges that the State violated the 1984 State Code by failing to have a guardrail along the edge of this ramp due to its height and slope. The State contends that the construction of this ramp pre-dated the 1984 State Code and thus is inapplicable.

DISCUSSION

A.Labor Law

Claimant alleges that Labor Law 200 (1) applies to the case at bar. Labor Law 200 is "[a] codification of the common-law duty of an owner or contractor to exercise reasonable care to provide workers with a safe place to work [citations omitted]." (Miller v Wilmorite, Inc., 231 AD2d 843). However, it is well-settled that "[g]eneral supervisory authority at the work site for the purpose of overseeing the progress of the work and inspecting the work product has been found insufficient to establish a cause of action under Labor Law § 200 [citations omitted]." (Riccio v Shaker Pine, 262 AD2d 746, 748, lv dismissed 93 NY2d 1042).

Here, it is undisputed that claimant testified that he never encountered or received any instructions or supervision from any State employee during his tenure with Satellite, but rather was always supervised by his Satellite supervisor, Doreen Watson. Consequently, the court finds that no showing has been made by claimant that the State supervised or controlled the manner in which he performed his work. Accordingly, this claim is dismissed to the extent that it relies on Labor Law 200. [*5]

B. Negligence

The court will initially examine the 1984 State Code effective from January 1, 1984 to January 1, 2003. It is undisputed that the ramp was constructed prior to the effective date of the 1984 State Code, but the parties disagree on whether the conversion of use pursuant to the 1989 State-USA lease triggered the applicability of the State Code, particularly 9 NYCRR 762.1 (f) requiring the placement of guardrails on areas with an 18 inch height differential. Claimant argues that the 1984 State Code applied to the change in use (from a hospital to the job corps center) that became effective as of the 1989 State-USA lease. It is well-settled that when a building pre-exists the 1984 State Code, it must conform therewith only if all alteration costs within a six-month period exceed 50% of the replacement cost of the building. (Cole v Emunah Gen. Contr., 227 AD2d 877, 878; 9 NYCRR 1231.3 [c]). Here, there was no evidence introduced regarding the actual cost of any alterations or renovations of this Facility. The court finds that claimant failed to present any evidence establishing that the Facility, constructed prior to the effective date of the 1984 State Code, and therefore not subject to its provisions, had such alterations or repairs so as to be brought within the coverage thereof. (Lester v Waterman, 242 AD2d 683, 684; Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982, 984).

That having been said, however, the absence of a State Code violation does not negate the possibility of negligence. (Wilson v Proctors Theater & Arts Ctr. & Theater of Schenectady, 223 AD2d 826, 828). It is well-settled that in order to establish liability in a slip and fall case, the burden is on claimant to establish by a preponderance of the credible evidence that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to correct or warn within a reasonable time; and that said dangerous condition was a proximate cause of the accident. (Gordon v American Museum of Natural History, 67 NY2d 836; Dapp v Larson, 240 AD2d 918).

In this court's view, the drop-off that existed from the upper floor level down to the ramp throughout the entire 16 feet 4 inch length of this ramp constituted a dangerous condition. Quite frankly, the court finds the unguarded height differential between this ramp and the upper floor to have been an accident waiting to happen. The State's arguments to the contrary are without merit.

The next question presented is whether the State created this dangerous condition which would constitute actual notice. (Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249, affd 64 NY2d 670). The undisputed evidence at trial established that the State constructed this ramp in 1979. Consequently, the court finds that the State had actual notice of this dangerous condition and, as such, need not reach the issue of constructive notice. (Stanton v Hexam Gardens Constr. Co., 144 AD2d 132, 133). Finally, based upon the credible evidence submitted at trial there can be no dispute but that this dangerous condition was a proximate cause of claimant's fall and alleged injuries.

Next, in the event of a liability finding in favor of claimant, the State argues that claimant bear some responsibility for his own injuries since a person is bound to see that by which the proper use of the senses should have been seen. (MacDonald v City of Schenectady, 308 AD2d 125; Avila v Mellen, 131 AD2d 408). Here, claimant conceded on cross-examination that he was familiar with [*6]the ramp and the layout of the property room. In fact, claimant testified that he had worked for Satellite at the Oneonta Job Corps on two separate occasions in the Facility. Claimant first worked at the Oneonta Job Corps between 1991 or 1992 for approximately seven years at this Facility as a property residential advisor for dormitories, working in the same main building but a separate location than the property room. Claimant left the Oneonta Job Corps and returned again sometime in 1999, again working as a residential advisor, during which time he indicated he would go to the property room about once a week to get supplies. Several months thereafter, however, claimant became a property clerk working in the property room. Between 1999 and the date of this accident, approximately one and a half years, claimant testified that 90% of his time was spent in the property room, the location of this accident.

In view of the foregoing, the court finds liability should be apportioned 70% to the State and 30% to claimant for the injuries, if any, claimant sustained as a result the accident of February 6, 2001.

All motions on which the court previously reserved or which not previously determined at trial, are hereby denied.

The court will set this matter down for trial on the issue of damages as soon as practicable.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY. Footnotes

Footnote 1:Unless otherwise indicated, all quotations are from the court's trial notes.

Footnote 2:Claimant testified that he recalled the tape was not in as good condition as shown on a photograph admitted into evidence as claimant's Exhibit 9.

Footnote 3:The 1984 State Code was in effect from January 1, 1984 to January 1, 2003.

Footnote 4:Ms. Watson stated her employer was ITT from 1988 until 1997/1998, Satellite from 1998 to early 2001, then KRA Desi from March 1, 2001 to the time of trial.