Feliciano v State of New York

[*1] Feliciano v State of New York 2006 NY Slip Op 51733(U) [13 Misc 3d 1208(A)] Decided on August 21, 2006 Ct Cl Scuccimarra, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2006
Ct Cl

Basilisa Feliciano, Claimant(s)

against

The State of New York, Defendant(s)



107735



Claimant's attorney: LONGO & D'APICE, ESQS.

MARK A. LONGO, ESQ.

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

BY: GWENDOLYN HATCHER, ASSISTANT ATTORNEY GENERAL

Thomas H. Scuccimarra, J.

Basilisa Feliciano alleges in her amended claim that she suffered serious injury on June 6, 2002 at the Bronx County Courthouse when she tripped and fell over a misaligned metal [*2]barrier placed by Defendant's agents inside the 161st Street entrance area to direct visitors to security checkpoints. A unified trial of the matter was held on February 7 and 8, 2006. This decision will first address liability.

Ms. Feliciano testified[FN1] that on the day of the accident she was taking papers to a clerk at the courthouse relative to a jury notice she received, and arrived at the courthouse at approximately 10:00 a.m. with her "companion"[FN2], Maria Martinez. Ms. Martinez' husband, had driven them to the courthouse in his van, and dropped them off. The weather was "nice," and Claimant was wearing flat "tie" shoes, and was carrying a pocketbook on her left shoulder. [T-18; 20-21]. She was not wearing her prescription glasses, however she said she did not have trouble seeing or walking. She had last been at the courthouse "about three years" earlier, and had always used the same entrance. [T-20].

After climbing the steps leading to the 161st Street entrance, she entered into the building through the revolving doorway access. Maria was behind her. There was a line of people immediately inside the building walking slowly as they were guided by metal barriers toward the security area.

Ms. Feliciano testified that she was ". . . on the first barrier . . . [and] was about to enter others. So, I was stopped there. When I stopped I was looking to where the people were grabbing their things and that's when - - since I was stopped I - - I did not - - I did not notice. I know that my foot like it enter when I was about to walk. I said when I tried to walk my leg was sort of stuck and that's when I know that when I move my left leg - - my left leg it was atop of something that looked like a rug. And that's when I fell sideways. I could not pull my body up. But there was something large that was sticking out and that's when I fell completely to the floor." [T-22-23]. She explained that it was her right foot that got stuck, causing her to lose her balance and fall. She landed first on her left leg, then her left knee, left arm and left ribs, and then ultimately her face.

After she had fallen, she could not say exactly what she fell on, but ". . . saw something like the gate, not - - I don't see the bottom, I saw the gate that - - moving toward me." [T-25].

Someone with a uniform came shortly thereafter to "look" at her, but no court officers or anyone else put ice on her knee or otherwise assisted her that she recalled. She could not say how long she was on the ground, or who called it, but at some point an ambulance came. She "was screaming" while she was on the ground, ambulance workers opened up her pant leg and ". . . did something . . ." on her knee. [T-29]. After placement on a stretcher she was taken to Lincoln Hospital, where x-rays were taken of her left leg, her back, her left side, her neck, her head and her face, and other treatment was administered. She was discharged the same evening, and was driven home by Maria Martinez' husband. Four days later she went to see her family doctor because she had continued to suffer pain. Thereafter, she has continued to suffer pain in her left knee, received injections, underwent surgery, and may require further surgery.

During further testimony, including additional direct testimony, cross-examination and a brief re-direct examination, Claimant indicated that she was injured in an accident 17 years [*3]earlier, and had lower back surgery as a result. After that surgery, she had used a cane for approximately one (1) year, but had been able to dance, go shopping, clean her house and dust prior to the present accident. Ms. Martinez had been her home attendant from 1992 on. Before and after the June 6, 2002 accident, Ms. Martinez' responsibilities included cleaning Claimant's house, accompanying her shopping, and on excursions into the street, making purchases, cooking, vacuuming and attending to Claimant's bed.

It was clarified that Claimant walked up the stairs to the building with Ms. Martinez' assistance, by holding on to her arm or shoulder, while Ms. Martinez held the handrail. It was also clarified that Ms. Feliciano was familiar with the metal barricades used to form a single line to access the security area. When she entered the building she used the metal barricade "tube" as a handrail, and claimed it did not move. She did not know whether the metal barrier was locked. After she stopped, and started to try to walk again, she found that she could not walk because her foot ". . . had entered this thing . . . the metal barricade." [T-58-59]. She did not see that her foot was hooked until after she fell, and did not feel her foot touch any metal prior to falling. It was only after she had fallen that she saw that the barricade was out of line, and had moved "a little bit" toward her. [T-66].

Maria Martinez, for the most part, described[FN3] the accident the same way Claimant did. She said that she observed that there was a carpet on the floor, and that she saw that as they walked through the metal barriers the foot of the barrier was not level, ". . . one was sort of coming out, but I never thought that she was going to trip in one - in there." [T-100]. Ms. Martinez said that ". . . that thing is where she tripped at."[T-100].

She described the barriers as metal tubes approximately six (6) feet long and approximately waist high. She thought they had walked and stopped about three (3) times by the time they reached the area where Claimant fell. She said that ". . . [i]t was the second foot from the right side" of the barrier that claimant fell over. [T-102]. The carpet on the floor ". . . was there to make the line. It's where people were making the line." [T-105]. When Claimant fell, the carpet had moved, and the foot of the barricade had moved about ". . . an inch and a half." [T-106]. She claimed not to have seen Ms. Feliciano touch any part of the barricade as she walked.

Although personnel responded after Claimant fell, Ms. Martinez said they did not give Claimant any medical attention, and the ambulance arrived approximately 20 to 25 minutes later. Ms. Martinez accompanied Ms. Feliciano in the ambulance to Lincoln Hospital. Mr. Lopez picked them up to go home between 7:00 p.m. and 7:30 p.m.

Portions of the deposition testimony of Court Officers Carlos Hernandez and Sergeant Robert Foster, taken on January 19, 2005, were read into the record on Claimant's direct case. Officer Hernandez was on duty of the day of Claimant's accident, and described how visitors to the building who are not attorneys or personnel are required to file through silver colored metal barricades set up at the entrance door at 161st Street to proceed through to the magnetometers in the security area. Court officers set up the barricades, which he described as perhaps four to five feet high, and about six feet long. The barricades have slats like a fence, and have feet. The feet are u-shaped, and ". . . half a foot at the most" high. [T-125]. He could not recall if there was any [*4]carpeted runner within the area of the barricades as of June 6, 2002. It was he who authored the "aided report" confirming the fact of the accident, having reported to the "C bank" area - the name used by personnel for the 161st Street side of the building - when the operations office received a call that there had been a trip and fall there. [Exhibit 1].

When he got there he saw Claimant lying between the entrance door and the elevator bank; in the area where the barricades were set up before the magnetometers. "She was face up on the floor and she was trying to grab at her knee . . . it was her left knee and her left arm." [T-128]. Officer Hernandez indicated that he applied a cold pack to her left knee, while other personnel notified the EMTs. He remained there ". . . until the EMTs from the fire department arrived." [T-129].

Officer Hernandez explained that the metal barricades are movable, are not affixed to the floor, but rather interlock.

Sergeant Foster indicated in his deposition that he was "the supervisor for the security post" on the day of the accident. He was responsible for the checkpoints at all three entrances to the building, and would check with the officers at the posts regarding any equipment or assignments needed for the day. Between the entrance and the elevator bank he confirmed that a "zigzag route to alleviate the congestion as the people went into the lobby" was created by the use of metal horses. [T-133]. He confirmed that there were legs at the bottom to "keep the thing from toppling over . . ." [T-134]. The barricades were not fixed but could be interlocked. He recalled that there would be rugs in certain areas, not affixed to the ground, that would be placed on the floor by building maintenance. He could not recall whether there were any rugs on the ground on June 6, 2002. Sergeant Foster said that "sometimes with a busy day . . . [the metal barricades] would get off alignment and we would realign them." [T-136].

He learned of the accident through a radio transmission. When he arrived at the scene, he saw "no people within the serpentine lines or chutes. There was a female unknown who she was at the time laying face down right by the first revolving door." [T-137]. Sergeant Foster saw that the configuration of the metal horses had changed to allow Claimant more room. He could not recall any rug under the woman or in the near vicinity. After assessing the situation and speaking with Office Hernandez he went outside to await the arrival of EMS to direct them to the correct entrance.

The testimony of Claimant's treating orthopedist, Dr. Sanjiv Bansal, was also offered on Claimant's direct case. He testified concerning his initial treatment of Ms. Feliciano on June 10, 2002, as well as providing details of the eventual August 20, 2002 surgery performed on her left knee. He had previously treated her for problems with her right knee in July 2001, when she complained of buckling. He said "obviously that could be a gait problem because of the right knee." [T-190-191].

Although the State has a duty as a landlord to prevent foreseeable risks of harm, it is not the insurer of public safety. Its duty is to exercise "reasonable care under the circumstances . . ." [Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. To establish a prima facie case of negligence generally the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant's injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence. [*5]

For premises liability, assuming that the State did not create the dangerous condition, a Claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual notice. Lewis v Metropolitan Transportation Auth., 99 AD2d 246, 249 (1st Dept 1984), affd 64 NY2d 670 (1984). With respect to constructive notice, any ". . . defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit . . . [a defendant] to discover and remedy it . . . (citation omitted)." Gordon v American Museum of Natural History, supra at 837 but cf. Weisenthal v Pickman, 153 AD2d 849 (2d Dept 1989).[FN4]

It is the Claimant's burden to prove her case by a preponderance of the credible evidence. As the trier of fact and law, charged with assessing the credibility [see Raynor v State of New York, 98 AD2d 865, 866 (3d Dept 1983)] of the various witnesses and evaluating the evidence, the Court finds that the State is not responsible for the Claimant's trip and fall and resultant injury.

As an initial matter, Claimant has failed to establish that a dangerous condition - and the operative word is dangerous - existed. The use of moveable metal barricades was a routine mechanism for moving visitors to the security area. The fact that one barricade in a series was not directly in line with another, or that the u-shaped foot of a barricade was not in proper position, hardly renders the lobby area dangerous or defective. As to any carpet, there was no credible showing that it was misplaced except after the accident, assuming that a carpet was on the ground at all. Other than catching the alleged misplacement and straightening the barricades out, what should the State have done to prevent Claimant from taking the misstep which caused her accident? Indeed, it remains unclear exactly what purportedly defective condition Claimant alleges caused her accident. Her deposition testimony and trial testimony was equivocal on the point, and it is clear that Ms. Feliciano remained unsure of exactly what occurred.

Any condition of misaligned metal barriers or barrier feet or rugs was "readily observable by those employing the reasonable use of their senses . . .' (citations omitted)." See Persing v City of New York, 300 AD2d 641, 642 (2d Dept 2002); Dominitz v Food Emporium, 271 AD2d 640 (2d Dept 2000); Costello v Grand Cent. Plaza, 268 AD2d 722 (3d Dept 2000). Claimant was familiar with the lobby and entrance area at the courthouse, was familiar with the metal barricades, and until she fell had not theorized as to what made her fall. She was speaking with Ms. Martinez, and looking toward the security area - not where she was walking - when her foot apparently hooked into the u-shaped foot of the barricade. Had she been employing the [*6]reasonable use of her senses, she would have seen where the barricade was located, or any rug, or any barricade foot, vis à vis her intended path. She stated she did not know what caused her to fall.

Additionally, the defect alleged herein is too trivial to be actionable, and "does not have the characteristics of a trap or nuisance." Arsenicos v Westland South Shore Mall, 294 AD2d 385 (2d Dept 2002), lv denied 98 NY2d 612 (2002); Nathan v City of New Rochelle, 282 AD2d 585 (2d Dept 2001). A property owner may not be held liable for damage resulting from a trivial defect, ". . . over which a pedestrian might merely stumble, stub his or her toes, or trip . . . (citations omitted)." Hargrove v Baltic Estates, 278 AD2d 278 (2d Dept 2000). Whether a particular defect is so dangerous ". . . as to create liability depends on the peculiar facts and circumstances of each case'. . . (citations omitted)." Trincere v County of Suffolk, 90 NY2d 976 (1997). The alleged dangerous condition was minor, open and obvious. Others had safely negotiated the line to the security area without incident.

Moreover, even if a readily observed misaligned metal barrier is viewed as a dangerous condition, there is no evidence that the alleged defect existed for such a period of time that defendant either knew or should have known of it, and then failed to take steps to remedy the condition. See Daniely v County of Westchester, 297 AD2d 654, 655-656 (2d Dept 2002), lv denied, 100 NY2d 501 (2003).

Even if the State's agents were aware that the barricades had become misaligned - something Sergeant Foster had agreed might happen on a busy day - Claimant has not established that such misalignment was present for an "unreasonable" amount of time. This trip and fall occurred at the beginning of the business day. No evidence of prior accidents at the scene has been submitted, nor was any evidence offered of prior complaints concerning misplacement of metal barricades intended to direct pedestrian traffic through the lobby, to establish notice. See Smith v State of New York, 260 AD2d 819, 820 (3d Dept 1999).

Accordingly, upon review of all the evidence including listening to the witnesses testify and observing their demeanor as they did so, there is a lack of credible evidence that the alleged defect was dangerous, and, if this was a dangerous condition, that it existed for such a period of time that the Defendant either knew or should have known of it, and taken steps to cure it. Claimant has failed to establish by a preponderance of the credible evidence that the State should be held liable for her trip, fall and resulting injury.

Defendant's motion to dismiss, upon which decision was reserved at trial, is hereby granted and Claim Number 107735 is in all respects dismissed. All trial motions not otherwise disposed of or withdrawn are hereby denied.

Let Judgment be entered accordingly.

Appendices: Footnotes

Footnote 1: Ms. Feliciano testified through a Spanish interpreter.

Footnote 2: Quotations refer to the trial transcript, here [T-18], unless otherwise indicated.

Footnote 3: Ms. Martinez testified using a Spanish interpreter.

Footnote 4: In Weisenthal v Pickman, supra, the Second Department drew a distinction between the outdoor setting of Gordon v American Museum of Natural History, supra, involving an alleged slip and fall on a piece of paper on an outside stairwell, and the garbage strewn on an indoor stairwell at issue in Weisenthal v Pickman, supra, at 851,saying the latter ". . . could have been swept clean effectively on a daily basis . . . [since] the evidence tends to show that the debris piled up in the defendants' stairwell over the course of days, rather than over the course of minutes or seconds, thus making it a matter of permissible inference, rather than a matter of pure speculation', to conclude that, if the defendants had taken reasonable precautions in maintaining their premises, the plaintiff's accident would have been prevented."