Barr v State of New York

[*1] Barr v State of New York 2013 NY Slip Op 50232(U) Decided on January 3, 2013 Ct Cl Marin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 3, 2013
Ct Cl

Juanita Barr, Claimant,

against

The State of New York, Defendant.



119382



APPEARANCES:

For Claimant:

The Law Offices of Salzman & Winer, LLP

By: Alan C. Salzman, Esq.

For Defendant:

Eric T. Schneiderman, Attorney General

By: Edward J. Curtis, Jr., AAG

Alan C. Marin, J.

This is the decision following the trial on liability of the claim of Juanita Barr arising from her fall on the outdoor plaza of the Adam Clayton Powell State Office Building on December 5, 2010.

Ms. Barr was coming from church and was on her way to a Christmas party at the State Office Building, located at 163 West 125th Street in upper Manhattan. Claimant was walking by herself from 126th Street; it was around 6 p.m.

Setting the scene was Eric Miller, assistant facilities manager of the state building, whose testimony, by agreement, was admitted via his November 15, 2011 deposition (def exh A). Mr. Miller testified that the building had a main and rear entrance, with the main entrance opening out onto a plaza, which had been undergoing a reconstruction since December of 2009, or about a year before claimant's accident.

Miller explained that the project involved waterproofing the entire plaza because water had leaked through the original surface into a parking garage, cellar and sub-cellar. He recalled that about six months into the work, a wall was built that divided the plaza into two with the eastern portion off limits to the public until the project's completion.

The testimony and the photographs in evidence show this truncated plaza bounded with [*2]the wall on one side and buildings on the other (cl exhs 1 and 2; def exh B).[FN1] In the remaining public space are three large, evenly-spaced planters each containing a small tree. The planters are aligned in a row closer to the temporary construction wall.

That night, Ms. Barr walked between the planters and the wall, past the third planter, and began to make a right turn toward a gate that she could see when "I tripped on some bricks . . ." After her fall, claimant braced herself against the planter, and "I saw there were missing bricks and I saw there were broken bricks . . . I went from here," indicating the broken and depressed area just past the last planter, and "I made it to the gate, then I went around [to] the building holding on [to] the gate."

Barr went into the State Office Building and reported her fall to a security guard who prepared an incident report which she was given, although it was not offered into evidence at trial.

Claimant's exhibits 1 and 2 show that the surface of the plaza was comprised of two, if not three different surfaces. To the left are large slate pavers, which Miller testified had covered the entire plaza prior to the waterproofing project. Almost all of the remainder of the open plaza, to the right in the photographs, was surfaced in normal sized bricks. To the right of the bricks and immediately next to the temporary wall was a concrete path a few feet wide.

Given Miller's testimony that the entire plaza had been surfaced with the large pavers, the small bricks to the right were no more than a year old, but in the relevant area, some were missing, broken, chipped or slightly sunken below the plane of the surface, yet the larger slate pavers or flagstones to the left, which had previously extended over the entire plaza appear relatively smooth in the photographs in evidence. Miller indicated that the construction crew was using heavy equipment, and the following exchange occurred:

"Q. Were there any vehicles, trucks, wheelbarrows or anything that was ever wheeled on the plaza side?

A. There may have been occasionally."

(Def exh A, p. 33).

* * *

The State has a duty to maintain its premises in a safe condition, but that does not make it an insurer; that an accident occurred does not, without more, implicate negligence. (Clairmont v State of New York, 277 AD2d 767 (3d Dept 2000), lv denied 96 NY2d 704 (2001)). Moreover, it cannot delegate this responsibility to a contractor in an area which the public is entitled to use; it was unchallenged that the waterproofing project was the State's contract. (Rothstein v State of New York, 284 AD2d 130 (1st Dept 2001)). To prevail in a negligence suit, claimant must prove by a fair preponderance of the evidence that what caused her to fall was a dangerous condition and that defendant either created the condition or had actual or constructive notice thereof. (Gordon v American Museum of Natural History, 67 NY2d 836 (1986)). [*3]

The Court of Appeals has explained that there are no minimum dimensions in order for a pavement defect to be actionable; instead it depends on the specific facts and circumstances of each case, "including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' of the injury [citation omitted]" (Trincere v County of Suffolk, 90 NY2d 976, 978 (1997)). Applying such standard to the facts here, this Court concludes that such condition was a dangerous one - - and, as noted, such is properly imputed to the defendant.[FN2]

Obviously, this was not a transient condition like ice and snow. The contractor, the building's maintenance personnel, security personnel employed by the State, and an outside security firm retained by the State all had ample opportunity to observe the condition. For example, Mr. Miller testified that the defendant's maintenance staff would attend to the trees in the planters.

Defendant points to testimony elicited from Miller that the private security company, ISS Action, patrols the property, including the plaza. He indicated that if they had seen a defective condition in the plaza, such as broken bricks or other defects in the surface, they would have reported it to Miller's unit, and in fact, had done that from time to time, but did not do so with respect to the place where Barr fell. To the extent that a report of the condition would have shown actual notice, in any event on the facts here, at least constructive notice obtains.[FN3]

In addition, defendant argues that Ms. Barr should have walked in the wider, more open part of the plaza. Nonetheless, all of the plaza not enclosed by the temporary wall remained open to the public, and there were no posted restrictions. There was also some back and forth that claimant at her deposition did not mention the reason she gave at trial for walking near the wall - - the presence of some youths that she thought it best to avoid. The issue of why she walked where she did is irrelevant - - she had the right to walk anywhere in the plaza that was open to the public.

Defendant also brought out that Barr had arthritis and that her medical records indicated the presence of blind spots in her field of vision. Barr's deposition of March 14, 2012 was not on all fours with her trial testimony as to the blind spots, but this Court found claimant to be generally credible in manner, if sometimes struggling a little to explain what happened. Claimant, who wears glasses (and was wearing them that night) testified that at times, she has to adjust them or move her head to see in front of her. But no evidence was introduced that a [*4]physician had advised her to limit what would otherwise be everyday activities.

* * *

In sum, the pavement defect was a dangerous condition; the State was both responsible for creating it and had notice thereof; and the defect proximately caused Ms. Barr's fall. With that concluded, Barr must share responsibility. It was fairly dark out, she had not been in the plaza for a while, and it had a different aspect than before construction and before the temporary wall was built. She should have been more alert to these surroundings and moved more cautiously, especially since she was turning and looking ahead towards the gate, and, the Court concludes, not directly in front of her.

The Court therefore finds defendant State of New York to be fifty percent (50%) liable for the trip and fall of Juanita Barr on December 5, 2010 and any resulting injuries therefrom. A trial on the matter of damages will be scheduled by the Court.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

New York, New York

January 3, 2013

Alan C. Marin

Judge of the Court of Claims Footnotes

Footnote 1: Cleveland Moore, a friend of claimant's, took the stand at trial, and testified that he was asked to take photographs of the site. The photographs in evidence were his, and each has the date of December 18, 2010 stamped on it.

Footnote 2: Granted, claimant's case for a dangerous condition was perhaps less clear cut than that in, for example, Locario v State of New York, 29 Misc 3d 1210 (A) (Ct Cl 2010), affd 90 AD3d 547 (1st Dept 2011), in which brickwork was elevated two and half inches above the adjacent concrete sidewalk, although the condition here, not on a sidewalk, may have been more deceptive or trap-like for the unsuspecting pedestrian.

Footnote 3: While not relieving defendant of its nondelegable responsibility, a more forgiving view of the pavement imperfections may be understandable given that this was in the middle of an ongoing construction project with the plaza presumably to be resurfaced at its completion.