Gramm v. State, 43014

• Court: New York Supreme Court Appellate Division
• Citation: 281 N.Y.S.2d 235,28 A.D.2d 787
• Docket Number: No. 43014,43014
• Parties: Dorothy GRAMM, Respondent, v. STATE of New York, Appellant. Claim
• Decision Date: 28 June 1967

Page 235

281 N.Y.S.2d 235

28 A.D.2d 787

Dorothy GRAMM, Respondent, v. STATE of New York, Appellant.

Claim No. 43014.

Supreme Court, Appellate Division, Third Department.

June 28, 1967.

Louis J. Lefkowitz, Atty. Gen., for appellant (Jeremiah Jochnowitz, Albany, of counsel).

Benjamin Liebov, New York City, for respondent (Michael R. Silberstein, New York City, of counsel).

Before GIBSON, P.J., and AULISI, STALEY, HERLIHY and REYNOLDS, JJ.

GIBSON, Presiding Justice.

Appeal by the State from a judgment of the Court of Claims which awarded damages for personal injuries sustained by claimant when she slipped and fell upon a stairway in a building maintained by the State at Flushing to house unemployment insurance offices of the Department of Labor.

It is not disputed that claimant was a business visitor or invitee to whom the State owed the duty of maintaining the terrazzo stairs in reasonably safe condition. On mounting the stairs claimant observed that they were worn, wet, dirty and littered with cigarette butts and paper wrappings. Other witnesses testified that the steps were wet and littered. After completing her business and while descending the stairs, claimant slipped and fell.

Claimant established a dangerous or potentially dangerous condition of the steps, as well as the State's notice thereof, by an interoffice memorandum written 10 months before the accident, with reference to a proposed renewal of the lease, in which memorandum were enumerated 'the items that Management would want in the new lease', including the following: '3. Repair or replacement of the front stairway. A number of the present terrazzo steps have worn, leading to potential accidents, especially when wet.' The condition was not corrected. We give no effect to the evidence, received without adequate foundation proof, of accident reports showing five other falls on the same stairway during the previous year. There was competent proof that the State's agreement with a cleaning contractor required that the steps be cleaned but once a day, regardless of weather, although eight to twelve thousand people entered the building weekly. The court was asked to take judicial notice of regulations of the State Labor Department requiring that floors be 'maintained, so far as possible, in a dry condition' and that the 'finished surfaces of stair treads shall be of such material and so maintained as to prevent persons from slipping or tripping thereon.' (12 NYCRR 16.2(d)(1) and 16.4(b)). The Court of Claims found the State negligent in 'failing to keep the stairway * * * in a safe condition for use and permitting wet and slushy substance to be and remain upon said stairway which was wet, slippery, unswept, and worn and uneven, causing plaintiff-claimant (sic) to slip and fall when she stepped upon same.'

In the light of the proof hereinbefore outlined, we find unfounded and unpersuasive the argument in the State's Point II that 'The condition of the stairway was not the result of the State's negligence.'

The State's principal contention, however, seems to be the asserted absence of proof of proximate cause. Assuming, says the State, an unsafe condition due to the State's negligence, claimant cannot succeed except upon proving the precise condition of the particular step upon which she fell, as respected one or more of the negligent conditions found applicable to the stairway generally. The law does not apply so unreasonable a requirement of certitude, usually impossible of achievement. 'The fact of causation is incapable of mathematical proof * * * If as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists. Circumstantial evidence or common knowledge may provide a basis from which the causal sequence may be inferred.' (Prosser, Law of Torts, (3d Ed.) § 41, p. 246.) In this case, the dangerous condition of the stairway and the fact of claimant's fall thereon establish the 'natural and reasonable inference' of the proximate cause that appellant denies. (Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 8, 14 N.E.2d 828, 830.) We find no reason to disturb the purely factual determination of the Court of Claims.

Judgment affirmed, with costs.

GIBSON, P.J., and AULISI and STALEY, JJ., concur.

HERLIHY and REYNOLDS, JJ., dissent and vote to reverse and dismiss in the following memorandum by REYNOLDS, J.

REYNOLDS, Justice (dissenting).

The plaintiff has failed to sustain her burden of proof as to the negligence of the State, and has not established a Prima facie case. No dangerous condition has been shown. No actionable negligence has been established. There is no proof as to the cause of the plaintiff's fall. The State is not an insurer of the safety of those persons using the stairway of the leased premises, but its duty is limited to the keeping of the stairway in a reasonably safe condition for persons lawfully using it. Further, reversible and prejudicial error was committed by the Court of Claims in admitting proof of non-similar accidents and using them as proof of a dangerous condition and notice.

The trouble with the case stems from the fact that respondent's counsel, unable to show any one act which constituted negligence on the part of the State, resorted to and levelled a 'shotgun' indictment combining several accusations of a non-negligent nature in the hopes that they would persuade the trier of the facts, considering them together, to find that in the aggregate they constituted negligence. Respondent was successful, despite the fact that some of the allegations were not even proven, in convincing the Court of Claims, and the majority of this Court has placed their stamp of approval thereon. The scatter-gun indictment is that the steps were worn, wet and littered.

Taking them up in order: (1) The Court of Claims has found that the 'worn portion of the steps was described as a slight slope as caused by the many people using the steps' (State's finding of fact $26), and that the fact that a step may be worn is not enough upon which to find negligence (Nazaroff v. Belam Realty Corp., 19 Misc.2d 65, 164 N.Y.S.2d 272, affd. 4 A.D.2d 886, 167 N.Y.S.2d 1003; Laun v. Karl, 278 N.Y. 506, 15 N.E.2d 668) (State's conclusions of law $IX). A mere resort to the photographic exhibits will show that only certain steps were slightly worn, and that the stairway itself guarded by railings on the side and in the center was constructed in a very careful and proper manner. (2) It is quite clear that the evidence that a stairway is wet will not be sufficient to establish a dangerous condition, even with a slight depression (Miller v. Gimbel Bros., 262 N.Y. 107, 186 N.E. 410; Antenen v. New York Telephone Co., 271 N.Y. 558, 2 N.E.2d 693; Feigenbaum v. City of New York, 271 App.Div. 787; Spaulding v. Christakos, 269 App.Div. 909, 56 N.Y.S.2d 372, affd. 295 N.Y. 973, 68 N.E.2d 55; Dolan v. Hotel Campbell, Inc., 260 App.Div. 872, 22 N.Y.S.2d 915; Freedman v. Clinton Court Corp., 279 N.Y. 736, 18 N.E.2d 685, reversing 254 App.Div. 643, 3 N.Y.S.2d 1023, and 167 Misc. 801, 3 N.Y.S.2d 956; Donohoe v. Great Atlantic & Pacific Tea Co., 277 App.Div. 739, 103 N.Y.S.2d 406). The owner or occupier of premises open to large numbers of people cannot be expected to prevent the presence of some water on the floor or stairways during the course of a rainy or snowy day. (3) The question of litter on the stairs at the time of the accident has been grossly...