Opinion
# 2016-018-750 Claim No. 122275
11-30-2016
NARINJAN S. KINGSLEY v. STATE OF NEW YORK
TABNER, RYAN & KENIRY, LLP By: Tracy L. Bullett, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joseph F. Romani, Esquire Assistant Attorney General
Synopsis
It is Claimant's burden to show that Defendant's negligence was a substantial cause of the events which produced the injury, and Claimant has failed to meet this burden. The claim is DISMISSED.
Case information
| UID: | 2016-018-750 |
| Claimant(s): | NARINJAN S. KINGSLEY |
| Claimant short name: | KINGSLEY |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122275 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | TABNER, RYAN & KENIRY, LLP By: Tracy L. Bullett, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joseph F. Romani, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 30, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed a claim seeking damages for injuries he suffered when he allegedly slipped and fell on water in the men's bathroom at Vroman Hall at the State University of New York at Cobleskill on December 5, 2011. The claim was bifurcated and a trial on liability was held on April 4 and 5, 2016, in the Binghamton District.
On December 5, 2011, Claimant was in his first semester at Cobleskill and a resident on the main floor of Vroman Hall. Claimant described the layout of the floor and made a sketch of the layout which was received into evidence. The building is rectangular with one side, the "A" side, having suites for women, and the other, "B" side, suites for men. In the center of the rectangle dividing the A and B sides were bathrooms for each gender. At the end of the hallway, near the men's bathroom was a lounge area. This area shared a wall with the men's showers.
Exhibit D.
For purposes of this Decision, the use of the term bathroom will refer to the men's bathroom if not otherwise indicated.
Numerous photographs of the bathroom were received in evidence and it was described by many witnesses. The door was at one end of the bathroom with two showers immediately to the left. Four sinks were on the opposite wall from the door and two toilet stalls were on the right end of the room on the wall dividing the men's and women's bathrooms. The two showers each had a changing area with curtains between them, and there were curtains providing privacy in the showers themselves. One shower, on the left, was handicapped accessible and tiled while the one on the right was fiberglass. Between the showers and the changing areas was a threshold or lip. There was a half-inch threshold between the changing rooms and the rest of the bathroom.
Exhibits 1, A, B, and C.
On December 5, 2011, Claimant testified he got up early to study and prepare for a presentation he was to give in class that day. He had breakfast and coffee in his room and then moved to the common area in his suite and continued his preparation. He had used the bathroom earlier that day but didn't shower. At approximately 10:30 a.m., Claimant said he went into the bathroom to rinse his coffee cup when he slipped on the wet floor and fell hitting his back and head. His mug fell and shattered on the floor. Christina Pastor testified her suite was near the men's bathroom door, and she recalled Claimant stopping at her door offering to make them coffee just before he fell. She heard the coffee cup break and then heard Claimant call her name. She went into the men's room to help. Claimant told her his head hurt so she brought him some ice wrapped in a towel.
Christina Pastor did not appear in person, but her deposition testimony was received into evidence as Exhibit E.
After the fall, Claimant said he was disoriented, dizzy and had vision problems, specifically, he could not see out of his left eye. He described being in a semi-fetal position with his arms wrapped around his legs. He was nauseous and vomited.
On one of the photographs Claimant marked where his head hit the floor when he fell. It shows his head next to the doorway and his feet toward the sinks. It was his recollection that he had only taken a couple of steps when the accident occurred. At the time, he was wearing Skecher-type shoes and khaki pants. He testified that after he had fallen, his pants were soaked from his back to his calves. The water made the pants look brown they were so wet.
Exhibit 1 contains 4 pictures: the top pictures are numbered 1 and 2, and the bottom sheet contains 2 pictures numbered 3 and 4. Claimant marked photograph number 1.
The witnesses who were with Claimant, in the bathroom, that morning have slightly different recollections of the arrivals and departures of the people involved, however, those discrepancies do not impact this Decision. The following witnesses entered the bathroom that morning: Ms. Pastor; Abbey Perkins, the Residence Hall Director; Anthony Marasciulo, the cleaner for Vroman Hall charged with cleaning the bathroom; and campus police officer, Norman Schubert.
Mr. Marasciulo testified that every day he checked the bathroom showers because the drains clogged occasionally. He testified he did so the morning of December 5. There was no standing water in the shower or changing areas and no water on the floor. When he cleaned the sinks, however, Mr. Marasciulo said some water splashed on the floor so he dry mopped to remove it. He explained he would hang his mop up when he finished work every day so it would dry. However, on cross-examination, he said the mop was very damp but not wet when he used it that day. When questioned further, he said the mop was between dry and damp and it could have made the floor wet, but the ventilation was very good so the floor would dry in seconds. Mr. Marasciulo testified that it is policy to leave the bathroom doors open, and he passed by the open door while he cleaned the stairways and hallways before he cleaned the women's bathroom. He did not witness anyone going into the men's room. Mr. Marasciulo was confident the floor was not wet when he left it that morning.
Mr. Marasciulo was cleaning the women's bathroom when he heard the coffee cup break, so he went to the men's bathroom with a broom and dustpan to clean up the broken glass. When he entered, he recalled two female dorm residents were with Claimant, one standing and one kneeling near him. Claimant was sitting with his knees up, rocking, and then squirmed across the floor to grab a garbage can in which to vomit. Mr. Marasciulo said there was no water on the floor, and the broom was not wet when he swept up the coffee mug.
The Residence Director, Ms. Perkins, testified she was in her office on the main floor when she learned of Claimant's fall. When she got to the bathroom, Claimant was on the floor, half-sitting and half-laying holding the back of his head and rocking. She recalled that he was facing her with his back to the sinks. Claimant said he was in pain and was having trouble with his vision. Ms. Pastor was present and Mr. Marasciulo came in to sweep up the coffee cup shards. The Campus Officer, Norman Schubert, was on duty and came to the scene arriving before the emergency medical technicians (EMT's). No one else slipped when entering the bathroom that morning. Ms. Perkins said Claimant seemed to be in a lot of pain as he was placed on the stretcher. At that point, she could see Claimant's thighs and back and didn't see that his pants were wet. Mr. Marasciulo saw Claimant at the same time and said his pants were dry. Ms. Perkins did not look for water on the floor but did look for bodily fluids which would need to be cleaned and removed but she saw none.
The Campus Officer, Norman Schubert, was called by Defendant. He learned of Claimant's fall and called for an ambulance because of the reported head injury before going to the scene. Ms. Perkins and Ms. Pastor were in the bathroom with Claimant, who was sitting against the wall to the right of the door facing the sinks when he arrived. Ms. Pastor was sitting or kneeling next to him. Officer Schubert saw a small amount of water by the sinks but not by the door where Claimant said he fell. He marked a photo with an "X" and his initials to show where he saw the water. When he arrived, there were pieces of the coffee cup on the floor.
Exhibit 1.
The EMT's arrived and Claimant was taken for medical treatment and admitted to Albany Medical Center where Claimant was diagnosed with a pituitary adenoma.
Prior to his fall, Claimant testified that he saw water on the bathroom floor six out of seven days each week because the showers overflowed every time someone used them. He also said the bottom of his pants would get wet when he used the toilet; he estimated the stalls were about 10 steps from the door and the showers. Claimant also testified that the water would run out the door so that the hallway carpet would be wet. When he or others used the fiberglass shower, he said the drain would clog and within 30 seconds, he would be standing in five-to-six inches of dirty water. The frequency of the flooding and the amount of water depended upon the number of showers that were taken. Claimant testified he had showered the night before he fell and had not used the shower that morning. He did not know if anyone else used the shower that morning.
According to Claimant, he complained about the water in the bathroom to Samantha LaRose, his Resident Assistant, at least three times during the floor meetings. At least once a week, there would be a soapy spot or ring on the carpet at the bathroom doorway. Claimant testified that he didn't make other complaints because it was Ms. LaRose's responsibility to inform the Resident Director, Ms. Perkins.
Samantha LaRose testified she was in class at the time Claimant fell. As the Resident Assistant for "Side B" on the main floor of Vroman Hall, she would call meetings with the residents as needed to discuss issues such as leaving the bathrooms dirty or excessive noise. She acknowledged that one of the showers would flood occasionally, and she received complaints once or twice a month. Ms. LaRose testified that Claimant complained to her once about it, but not during a floor meeting.
Ms. LaRose recalled that the main recurring problem was water seeping through the wall adjoining the showers and the lounge making the carpet wet outside a closet in the hallway. Only once did Ms. LaRose see water overflow from the men's shower onto the bathroom floor and out the door to the hallway. The water never reached the sinks or toilet stalls. She described it as a small trail of water ¼ - ½ inch deep. As a result, there was a ring on the carpet a few inches out from the wall. Ms. LaRose said she notified Ms. Perkins of the shower overflow and she submitted a request to maintenance. She said she never received a complaint about wet floors in the toilet stalls from anyone.
Claimant submitted portions of the deposition of Janice Herrick, the Environmental Health and Safety Officer at SUNY Cobleskill, and the Defendant called her as a witness at trial. Ms. Herrick's primary duties concern regulatory compliance and injury or illness investigations. Usually she is not made aware of clogged drains or leaking water unless it is a persistent safety or health issue. Ms. Herrick acknowledged that wet floors in a bathroom could result in falls and injury. Twice a school year, she and other employees such as janitors would walk through the dormitories to look for safety concerns.
Fourteen work orders were received into evidence. Some of the work orders were computer printouts and some were handwritten. The documents have a work order number assigned, then the date and time of the request, the date the matter was attended to, and a brief description of the problem. Further, along the page there is room to document the steps taken to correct or repair the problem and the person or persons who did so.
Exhibits 2 - 12, and 15.
Exhibits 13 and 14.
The relevant work order entries regarding the bathroom are as follows:
"September 6, 2010 - Vroman Main Boys Bathroom Shower that was repaired, shower base is full of water and won't drain.
Exhibit 5, work order #100039999.
February 15, 2011 - Vroman Hall B-side main floor bathroom, the handicap shower is always clogged - the outside wall of bathroom, the carpet is always wet.
Exhibit 7, work order #100042954.
February 17, 2011 - Vroman Hall B-Side main floor bathroom, the outside wall of bathroom, the carpet is always wet. The base is cracked.
Exhibit 7, work order #100043024.
April 19, 2011 - Vroman Hall B-Side main floor, boys bathroom, the shower on the right, drain keeps clogging.
Exhibit 9, work order #100044254.
September 1, 2011 - Vroman Hall Main floor B-Side boys shower on the right is draining slow.
Exhibit 11, work order #100046365.
September 2, 2011 - Vroman Main B Men's Bathroom both showers are not draining properly and are causing the bathroom to flood.
Exhibit 11, work order #100046406 (two identical entries).
November 28, 2011 - Vroman Hall Main floor b-side shower drain clogged unclogged drain and mopped up. Vroman Hall Main B Boy's shower flooded (same work order number).
Exhibit 12 and Exhibit 13, work order #100048301.
Exhibit 13, same work order # as Exhibit 12.
November 32 [sic], 2011 - Vroman Main 'B' Men's Bathroom water on floor outside showers.
Exhibit 14, work order #100048387.
December 1, 2011 - Vroman Main 'B' men's bathroom water on floor outside showers. Students overflowed shower basins. Water ran into hallway.
Exhibit 15, work order #100048387.
December 2, 2011 - Vroman Main B Men's Room: the non-handicapped shower is draining very slowly and overflowing into the rest of the bathroom when it is used."
Exhibit 15 (2 identical entries) work order #100048389.
Ms. Herrick was questioned about these work orders both in her deposition and at trial, she explained that an entry is made for each worker who attends to the problem. On September 2, 2011 and December 2, 2011, two plumbers were assigned to check the bathroom so there were duplicate entries for a single problem. Similarly, the November 32 [sic] 2011, entry and the December 1, 2011 entry are duplicative, as can be seen by the work order number. Ms. Perkins testified that after Ms. LaRose told her of the water problem, she, too, requested a work order which resulted in the second entry. Ms. Herrick acknowledged that prior to Claimant's fall, there was a problem with the showers in the men's room. Ms. Perkins said it was determined that the drainage pipe in the shower was too small and due to the extensive repairs needed, the work was to be done when students were not on campus.
Exhibits 2 - 15.
In reviewing the work order printouts for Vroman Hall men's bathroom, Ms. Herrick testified at trial that the occasional need to address a clogged drain over a 15-month period would not be considered a persistent safety issue. Since there were about 20 men living and showering on the floor, with only two showers, some overflow or clogging is not unusual. She would not have expected to be notified of these overflow events.
Exhibits 5 - 10.
Claimant submitted the depositions of Anthony Marasciulo and Thomas Webb into evidence. As noted earlier, Mr. Marasciulo also testified at trial. Mr. Webb was Mr. Marasciulo's supervisor at the time of the deposition but not at the time of the accident.
Exhibits 18 and 19.
Thomas Webb was a Grade 7 Janitor at SUNY Cobleskill in December 2011. Mr. Webb testified that some water gets on the floor when sinks and toilets are cleaned. He described the practice of using a dry mop to wipe it up. After mopping the floor, Mr. Webb explained that he always puts a cautionary sign up to warn that the floor might be wet. Mr. Marasciulo testified that he did not use a caution sign in the bathroom on December 5, 2011, but after Mr. Webb became his supervisor, he was instructed to do so.
Defendant called Claimant's Western Civilization professor to testify. Dr. Rene Descartes recalled a conversation he had with Claimant on December 1, 2011, four days before he fell. The Professor remembered Claimant because he always dressed well, often wearing a tie, he even recalled where Claimant sat during class. The Professor regularly used an overhead projector with transparencies in class at that time. Claimant testified that they were smeared and hard to read so he asked to borrow the transparencies so he could make notes. Dr. Descartes testified that Claimant asked if he could take the transparencies to copy. When Dr. Descartes denied Claimant's request, Claimant indicated he was blind in one eye. Professor Descartes suggested that he sit in the front row. Later that day, Professor Descartes changed his position and contacted Student Services to reach out to Claimant and let him know he could borrow the transparencies. Professor Descartes indicated that no other students complained about the transparencies being smeared or unreadable. Claimant denied telling Professor Descartes that he was blind in one eye.
Defendant also called James Terzian, a Board Certified Anatomical, Clinical and Forensic Pathologist. Dr. Terzian reviewed legal documents, Claimant's medical records from Albany Medical Center where he was treated after his fall, and pathology reports and slides relating to Claimant's pituitary adenoma.
Dr. Terzian explained that the pituitary gland is found in the center of the head. Pituitary adenomas are benign neoplasms that are usually slow growing but, if large enough, can impinge on the surrounding structures causing symptoms. Most pituitary adenomas are less than one centimeter usually only a few millimeters. Claimant's adenoma was 3.7 centimeters or 37 millimeters and, therefore, considered a macroadenoma. The pituitary gland is normally 15 millimeters in size. By virtue of its size alone, a 3.7 centimeter tumor was larger than the pituitary gland itself and would expand into the bony structure in which the gland is found. The tumor can grow upwards into the brain. Right next to the pituitary gland is the optic chiasm where the optic nerves cross. The tumor, if large enough, could press on the optic nerves resulting in vision loss, including blindness.
Often an adenoma will cause a loss in peripheral vision, or if off-center, it can affect the vision in one eye more than the other. The pituitary gland is vascular so the adenoma has capillaries, and larger adenomas can spontaneously hemorrhage. If that occurs, Dr. Terzian said there would be a sudden increase in the size of the mass because of the influx of blood. The mass would immediately impinge on the surrounding structures, in this case, the optic nerves. Such a hemorrhage could cause headaches, vision problems, and dizziness. It could also affect balance. No one knows what causes pituitary adenomas, and they are found in about one in five people as seen in autopsies but are usually very small and asymptomatic.
Dr. Terzian testified that given the size of Claimant's tumor he would expect Claimant to have had some symptoms for days or weeks before December 5, 2011. Dr. Terzian suspected the tumor was probably growing for months, if not years. Dr. Terzian could not say that the tumor symptoms or a hemorrhage caused Claimant to fall, but the larger the tumor becomes, the more symptoms are expected. Treatment is required because the tumor does not resolve on its own.
On cross-examination, Dr. Terzian agreed that some pituitary adenomas cause no symptoms. He also agreed that he could not state with certainty whether Claimant's fall caused acute bleeding of the tumor or if a spontaneous hemorrhage caused his fall. Either could have happened. He never examined Claimant and agreed from the medical records, Claimant had no notable past medical history. The only symptom was a loss of vision in his one eye based upon Professor Descartes' recollection. The medical records from Albany Medical Center do show a temporal visual field defect in his right eye, but it is unclear if that was pre-existing. Dr. Terzian also testified that a head trauma could cause a tumor hemorrhage, however, the slides he viewed showed no bleeding of the tumor.
LEGAL DISCUSSION
The State of New York has a duty to maintain its premises and facilities, including its dormitories in a reasonably safe condition under the circumstances (see Preston v State of New York, 59 NY2d 997 [1983]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). Yet, the State is not an insurer of student safety (Rosa v State of New York, 63 AD3d 1383 [3d Dept 2009]) and negligence cannot be inferred by the mere happening of an accident (Mochen v State of New York, 57 AD2d 719 [4th Dept 1977]). To establish liability, it is Claimant's burden to prove, by a preponderance of the credible evidence, that the State breached its duty of care when it either created or had actual or constructive notice of a dangerous condition which was a substantial factor in causing Claimant's injury (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]).
"To constitute constructive notice, [the allegedly dangerous condition] must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it." (Wesolek v Jumping Cow Enters., Inc., 51 AD3d 1376, 1378, quoting Gordon, 67 NY2d at 837). If the Defendant has actual notice of a recurrent dangerous condition in the location of the accident, constructive notice of each recurrent condition may be inferred (Wesolek, 51 AD3d at 1378). A general awareness that a dangerous condition may be present is not sufficient to impute constructive notice of the specific condition that caused Claimant's fall (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]).
It is Claimant's position that on the morning of December 5, 2011, there was water on the floor of the bathroom that caused him to fall. This water, Claimant indicated, was there daily after anyone took a shower because the drain regularly backed up. Claimant testified his pants were soaked wet from the bathroom floor where he fell.
The Court, acting as the trier of fact must review the evidence, listen carefully to the witnesses' testimony, observe their demeanor, and assess their credibility in order to determine whether a prima facie case has been presented (see Lewis v State of New York, 223 AD2d 800 [3d Dept 1996]; Schoonmaker v State of New York, 32 AD2d 1005 [1969]; LaCourt v State of New York, UID No. 2002-029-199 [Ct Cl, Mignano, J., July 25, 2002]).
In this case, the Court finds Claimant's testimony regarding the cause of his fall, the wetness of his pants after his fall, as well as the frequency and extent the bathroom floor flooded was overstated and persuasively contradicted by the testimony of Ms. Perkins, Ms. LaRose, Ms. Pastor, and Mr. Marasciulo, as well as the work orders. The Court credits Ms. Herrick's testimony that over the course of months the shower drain became clogged a handful of times but was not a consistent problem. After a plumber determined that the drain needed to be enlarged, Mr. Marasciulo checked it daily for clogs. There were only two work orders which included information of flooding in the bathroom itself, and not just in the shower basin.
The work orders reflect a repeated drainage issue with the showers in the men's bathroom which occasionally led to flooding around the showers or in the lounge area. Actual notice of the occasional problem which was addressed by maintenance each time, is not sufficient in the Court's view of the evidence to permit an inference that water had collected on that bathroom floor the morning of December 5, 2011, from a clogged drain in the showers (cf., Miller v Gimbel Bros., 262 NY 107 [1933] [some water and mud at entrance of store on a rainy day, not constructive notice of a dangerous condition]; Petri v Half Off Cards, 284 AD2d 444 [2d Dept 2001] [employees' regular practice of leaving debris and wrapping material on floor, question of fact if could be constructive notice and caused a fall]; Benn v Municipal Hous. Auth. for City of Yonkers, 275 AD2d 755 [2d Dept 2000] [constructive notice of garbage in stairwell established with evidence of actual notice daily piling of garbage in stairwell by tenants]).
In any event, Claimant must establish that the recurrent condition existed on the day he fell and caused his fall which Claimant has not done. Since none of the witnesses who attended to Claimant immediately after his fall noticed any significant accumulation of water, the Court is not persuaded that water caused Claimant's fall.
The Court also does not find that the limited water Officer Schubert noticed by the sinks could have caused Claimant's fall, since Claimant testified he fell after one or two steps into the bathroom and before reaching the sinks. Moreover, there was no proof that the State would have had any actual or constructive notice of this water.
See Claimant and Officer Schubert's markings on Exhibit 1, picture 1. --------
It is Claimant's burden to show that Defendant's negligence was a substantial cause of the events which produced the injury (Derdiarian v Felix Constr. Corp., 51 NY2d 308 [1980]). Claimant has failed to meet this burden.
The claim is hereby DISMISSED. All motions not previously decided are hereby denied. LET JUDGMENT BE ENTERED ACCORDINGLY.
November 30, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims