| McKee v State of New York |
| 2010 NY Slip Op 06136 [75 AD3d 893] |
| July 15, 2010 |
| Appellate Division, Third Department |
| Lindsay McKee, Respondent, v State of New York,Appellant. |
—[*1] The Rothschild Law Firm, P.C., East Syracuse (Martin J. Rothschild of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the Court of Claims (Midey Jr., J.), entered May 7,2009, upon a decision of the court in favor of claimant.
Claimant was injured when she fell after tripping on an elevated doorway sill located at themain entrance to a building on the campus of the State University of New York at Cortland. Shecommenced this negligence action alleging that her fall was caused by the dangerous anddefective condition of the door sill. Following a bifurcated trial on the issue of liability, theCourt of Claims determined that defendant was responsible for an unsafe condition on itsproperty, but found that claimant was 40% responsible for her injuries. The court then conducteda damages trial and entered judgment in claimant's favor. Defendant appeals, contesting only thefinding of liability.
Claimant did not establish that the layout of the door sill constituted a design defect. Thedoorway was built some time between 1958 and 1961, without any design alterations to the sillitself since that time. The door sill was almost 10 feet long, 18 inches wide and 5� inches high.People exiting the building had to step down the 5� inches from the gray granite sill to amulticolored slate patio. The Court of Claims ruled that no building code violations were atissue, so the design would have to be measured solely against industry standards. Althoughclaimant's architectural expert opined, based on his education and experience, that the design of[*2]the door sill deviated from accepted standards of constructionat the time that the building was constructed, he did not provide foundational evidence of anyspecific industry standards that were violated (see Alger v CVS Mack Drug of N.Y., LLC, 39 AD3d 928, 929[2007]; see also Gernat v State of NewYork, 23 AD3d 1015, 1015 [2005]). According to the basis brought forth through histestimony, the expert's opinion—that public facilities should be kept smooth and straightand obstacles should be avoided—appears to be his personal design preference, rather thanan industry standard (see Alger v CVS Mack Drug of N.Y., LLC, 39 AD3d at 929-930;Phillips v McClellan St. Assoc., 262 AD2d 748, 749 [1999]). Without proof of codeviolations or deviation from standards accepted by the industry, claimant failed to establish thatthe door sill was defectively designed.
Even without proof of a design defect, defendant could be liable for common-law negligencedue to a failure to remedy or warn of a dangerous or defective condition (see Wilson vProctors Theater & Arts Ctr. & Theater of Schenectady, 223 AD2d 826, 829 [1996]). Inreviewing a nonjury verdict, this Court may independently consider the probative weight of theevidence and render the judgment warranted by the facts, while giving deference to the trialcourt's credibility determinations (seeGonzalez v State of New York, 60 AD3d 1193, 1194 [2009], lv denied 13NY3d 712 [2009]; Vachon v State of New York, 286 AD2d 528, 530 [2001]).Photographs show that the height differential from the patio to the sill is apparent when enteringthe building, but that the step down directly from the door sill is hidden or at least difficult to seewhen exiting. Defendant is obligated to keep its premises safe, which includes a duty to warn ofa condition that is dangerous and not obvious. There was no warning of the step down from thedoor sill when exiting the building, and claimant testified that part of the reason she fell wasbecause she did not notice that the patio was lower than the doorway. Defendant's expert testifiedthat the contrast in color and texture between the granite sill and slate patio provided sufficientvisual cues to make pedestrians aware of the transition, but claimant's expert disagreed (cf.Alger v CVS Mack Drug of N.Y., LLC, 39 AD3d at 930; Guldy v Pyramid Corp.,222 AD2d 815, 816 [1995]). A photograph taken from the perspective of someone exiting thebuilding supported the position of claimant's expert on that issue. Although the sill had beenpainted bright yellow at some point, testimony and photographs established that the paint hadworn away over the years and only light patches of it remained at the time of claimant's fall.
Defendant cannot be held liable for failing to warn of a condition if it was not on notice thatthe condition was dangerous. Defendant's employee testified that no accidents had been reportedconcerning the subject doorway in at least eight years prior to claimant's fall. While notice is notrequired where a defendant created the dangerous or defective condition (see Knapp v Golub Corp., 72 AD3d1260, 1261 [2010]; Hagin v Sears,Roebuck & Co., 61 AD3d 1264, 1264-1266 [2009]), our finding that claimant failed toestablish a design defect requires notice to support a determination of negligence againstdefendant. Because the record does not contain proof of any notice to defendant regarding thedangerousness of the height differential, that condition cannot form the basis of a negligencefinding.
Aside from that condition, however, the Court of Claims apparently credited claimant'stestimony that the sill was crumbly or uneven in the spot where she stepped, causing her to teeterforward and fall (compare Diehr v Association for Retarded Citizens of ChemungCounty, 233 AD2d 818, 820 [1996]). Photographs of the sill show visible deterioration orspalling of the granite (compare Gonzalez v State of New York, 60 AD3d at 1194). Theexperts testified that the spalling occurred due to the surface being worn down over time. Thegranite sill had been in place since the building was constructed more than 40 years prior toclaimant's fall. While [*3]defendant's expert testified that spallingwould actually improve traction, the court did not seem to credit that testimony. The evidencesupports a determination that defendant's failure to maintain the sill created a dangerouscondition that contributed to claimant's injuries. Defendant's maintenance and administrativeemployees worked in the building, traveling through the subject doorway daily, providing themwith constructive notice of the deteriorated condition of the sill. Based on defendant's failure tomaintain the sill from crumbling and deteriorating into an uneven surface, defendant was liableto claimant in negligence for allowing a dangerous condition to exist, which resulted inclaimant's injuries.
Peters, J.P., Rose, Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment is affirmed,without costs.