Schanberg v. State

• Decision Date: 09 January 1969
• Docket Number: No. 44000,44000
• Citation: 58 Misc.2d 605,296 N.Y.S.2d 646
• Parties: Sydney H. SCHANBERG, Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 646

296 N.Y.S.2d 646

58 Misc.2d 605

Sydney H. SCHANBERG, Claimant, v. The STATE of New York, Defendant.

Claim No. 44000.

Court of Claims of New York.

Jan. 9, 1969.

Wallace Tannenbaum, with Samuel Weinbaum, Brooklyn, and Joseph Kossar, New York City, for the claimant.

Louis J. Lefkowitz, Atty. Gen., for the State, by Robert G. Farrell, Asst. Atty. Gen., of counsel.

DECISION

MILTON ALPERT, Judge.

The State of New York maintains and occupies a building at 80 Centre Street in the City of New York wherein various agencies of the State government are located. On the fourth floor of the building are offices occupied by the Attorney General and members of his staff.

Claimant is a news reporter for the NEW YORK TIMES and, in 1964, was assigned to gather news from State agencies in the City of New York and from some City agencies. He had the so-called 'State Beat.' In the course of his duties, he regularly visited the New York City offices of the Attorney General at 80 Centre Street. To assist representatives of news media, the Attorney General provided a 'press room' in Room No. 408 of 80 Centre Street. This area was equipped with desks, typewriters and telephones. However, it was customary for reporters to receive and discuss press-releases in the adjoining rooms, No. 410 and No. 412, where various members of the Attorney General's public relations staff maintained their offices.

Claimant very often was invited into these offices to receive press-releases and other news information concerning the Attorney General's office. He was also expected to come to these offices to discuss matters and to obtain answers to questions which might lead to his preparation of news stories concerning the subjects under consideration.

Room No. 412 was occupied by the Executive Assistant to the Attorney General and the assistant to such Executive Assistant.

The room contained two desks on one side thereof. On the opposite wall, approximately eight to ten feet from the assistant's desk, and affixed to a concrete pillar, was a washbasin or sink. It was a single pedestal basin, oval in shape, with a white porcelain surface. There were two porcelain faucet handles above and parallel to a shelf-like flat area above and behind the basin portion. There was a handle on each side of the center combined water spout and drain control--that for hot water was on the user's left and that for cold on the user's right. The handles of the faucets were made of porcelain, and were of a bar or lever type in shape, rather than of spoke or wheel design. The handles were attached by means of a cement-type adhesive substance to a screw-type stud which extended out from the base of the faucet structure. The stud had a brass exterior surface, the interior being of compressed metallic granular construction.

On June 12, 1964 at about two o'clock in the afternoon, claimant visited room No. 412 in his usual and normal routine in seeking news releases. At that time, the room was occupied only by the Executive's assistant.

Claimant testified that he sat down in a chair near this assistant's desk and engaged in conversation with the assistant. During the conversation, claimant testified that there was a steady audible drip of water in the washbasin, that it was a kind of splashing sound, and that it was audible to the point of disrupting the conversation. Claimant further testified that he had heard a dripping sound in that washbasin before on practically every visit to the room, that on occasion he had used the washbasin to wash his hands, that he had thus previously identified the drip as coming from the cold water faucet, that he had been unsuccessful in stopping the drip on those occasions but had been successful in diminishing it, and that he had asked the room occupants in a joking manner when was it going to be fixed.

On this particular day, claimant testified that the drip was so audible that it was disturbing the conversation and that he got up from his chair and walked over to the washbasin and, with his right hand clasped around the handle and thumb extended, turned the cold water knob in a counter-clockwise motion so as to diminish the flow of water--he did not expect to stop it altogether. He testified that he stopped when he arrived in front of the washbasin, that he exerted energy to turn the handle from his right shoulder through his right arm, that he dipped his right shoulder in doing so, and that his right foot was forward a bit. He described his effort as exerting pressure by dipping his shoulder, exerting energy through his arm, turning his right wrist out and dropping the level of his right wrist below that of the level where his fingers and upper palm grasped the handle. The handle broke--this included the screw-type stud and the porcelain sleeve which covered the stud, or core. The porcelain sleeve split into pieces. One piece remained attached to the core and base and it probably was the one which cut into claimant's right wrist below the center of the palm, causing the injuries for which claimant here seeks to recover damages in the sum of $250,000.

The claim was timely filed in the Court of Claims on July 1, 1964. The claim was tried in January of 1967 and resulted in an award to claimant. On appeal to the Appellate Division, Third Department, the judgment was reversed and a new trial directed (Schanberg v. State, 30 A.D.2d 712, 291 N.Y.S.2d 35, rev'g 53 Misc.2d 116, 277 N.Y.S.2d 794).

The instant decision is on such new trial which was had in December 1968.

Claimant was legitimately upon the premises in connection with his duties that were useful to his employer, as well as to the State of New York. The distinction between a visitor who is a mere licensee, who assumes all the risks of the premises except those resulting from intentional, wanton or malicious acts, and one who is on the premises by invitation turns largely on the nature of the business which brings him there (Hall v. State, 173 Misc. 903, 19 N.Y.S.2d 20, aff'd 265 App.Div. 1037, 41 N.Y.S.2d 183). Claimant clearly was there as an invitee in a business relationship. (See Cesario v. Chiapparine, 21 A.D.2d 272, 250 N.Y.S.2d 584). As such an invitee, the State was not an insurer of claimant, but the State owed him the duty of using reasonable care to prevent injury (Warren's Negligence, Vol. 3, § 4.01, pp. 231--233). The State had to use reasonable care to keep the premises in a safe and suitable condition so that those coming upon it would not be unusually and unreasonably exposed to danger. The State owed him the duty of guarding him from dangers known to it, but not to him, as invitee (Hall v. State, supra.) This rule applies only to the portions of the property as the claimant was invited to enter, or which it might reasonably be expected that claimant would go in answer to the invitation, expressed or implied (Brister v. Flatbush Leasing Corp., 202 App.Div. 294, 195 N.Y.S. 424).

Claimant was invited to use the premises of Room No. 412 and, accordingly, the State was under a duty to use reasonable care to prevent injury to him.

The building maintenance supervisor's testimony taken at an examination before trial was read into the record. He stated therein that the building was constructed in 1927 or 1928; and that he had been employed by the State at 80 Centre Street for a period of 30 years, was in charge of maintenance and supervised 10 employees. He stated that repairs to the plumbing were made by the plumber, although at times, he made plumbing repairs and was familiar with plumbing and the repair thereof. No evidence, however, was elicited as to repairs to the faucet in question.

'Where the instrumentality which produced an injury is within the exclusive possession and control of the person charged with negligence, and such person has exclusive knowledge of the care exercised in the control and management of that instrumentality, evidence of circumstances which show that the accident would not ordinarily have occurred without neglect of some duty owed to the plaintiff is sufficient to justify an inference of negligence.' (George Foltis, Inc. v. City of New York, 287 N.Y. 108, 114--115, 38 N.E.2d 455, 459, 153 A.L.R. 1122). In such circumstances, the doctrine of Res ipsa loquitur relieves the claimant from the burden of producing direct evidence of negligence; but it does not relieve a claimant from the burden of proof that the person charged with negligence was at fault, or that claimant was free from contributory negligence (George Foltis, Inc. v. City of New York, supra; Parsons v. State, 31 A.D.2d 596, 295 N.Y.S.2d 383 decided November 26, 1968).

Here, the faucet was exclusively under the control and maintenance of the State, and the State had exclusive knowledge of the care exercised in the control and maintenance of that instrumentality. Claimant under the operation of the doctrine of Res ipsa loquitur is relieved of the burden of producing direct evidence of negligence, but must prove that the State was at fault and be free from fault himself (George Foltis, Inc. v. City of New York, supra.)

There are two classical Res ipsa loquitur cases in New York State relating to the breaking of porcelain water handles by hotel patrons using reasonable force in attempting to shut down a flow of water (Kane v. Ten Eyck Co., 10 Misc.2d 398, 175 N.Y.S.2d 88, aff'd in memo opinion 267 App.Div. 789, 46 N.Y.S.2d 251, aff'd 292 N.Y. 701, 56 N.E.2d 115; Jungjohann v. Hotel Buffalo, 5 A.D.2d 496, 173 N.Y.S.2d 340). In both of these cases it was held that the occurrence of the breaking of porcelain water handles while being turned by hotel guests gave rise to the application of the Res ipsa loquitur rule and thus the inference of negligence on the part of the hotel operators who had exclusive control over installation and maintenance of the water handles. It is noted that in both of these cases the hotel operators were held not to have overcome such...