Schanberg v. State
| Decision Date | 02 March 1967 |
| Docket Number | No. 44000,44000 |
| Citation | 277 N.Y.S.2d 794,53 Misc.2d 116 |
| Parties | Sydney SCHANBERG, Claimant, v. The STATE of New York, Defendant. Claim |
| Court | New York Court of Claims |
Samuel Weinbaum and Wallace Tannenbaum, Brooklyn, for claimant.
Louis J. Lefkowitz, Atty. Gen., James Brenner, Asst. Atty. Gen., of counsel, for the State.
The government of the State of New York, in the exercise of some of its executive functions, occupies, maintains and controls a building located at 80 Centre Street in Manhattan, wherein branches of the Departments of Labor, Taxation and Finance, Motor Vehicles, Law, and other agencies function. The fourth floor of this building is occupied by offices of the Attorney General, and houses members of his staff who work in various bureaus of the Law Department.
Room 408 contains facilities for the use of reporters assigned by the metropolitan newspapers to cover news emanating from the Attorney General's offices. These facilities include desks, chairs, typewriters, telephones, coat racks, paper, etc.
Room 412 is the office of the Executive Assistant to the Attorney General, whose desk, together with the desk of his assistant, are placed in two corners of one side of the room. On the opposite wall, approximately eight feet from the assistant's desk, and affixed to a concrete pillar, is a washbasin above which towel and soap dispensers are installed. The single pedestal basin is oval, and made of white porcelain, as are the hot and cold water spigot handles, placed to the left and right, respectively, of the white porcelain drain control knob centered at the back edge of the basin. No partition or screen separated the washbasin from the room.
On June 12, 1964, at about two o'clock in the afternoon, Mr. Sydney Schanberg, a news reporter for the New York Times then assigned to City and State agencies, including the Department of Law, as part of his reportorial duties visited Room 412 to check on possible news releases. He testified that, seated in a chair while engaged in conversation with the assistant at her desk, he heard a steady audible drip of water from the faucet on the washbasin, which drip was loud enough to become annoying and disruptive of conversation. He further testified that the drip had been audible during his presence in that office over a period of many months, and frequently had been discussed in conversations he had with staff members of the Attorney General's office who used the room. No rebuttal of this testimony was adduced.
He interrupted his talk, got up from the chair, went over to the basin and, with his right hand, in a counter-clockwise motion, turned the cold water knob, which broke in his hand. The white porcelain sleeve, which covered the shaft of the single prong lever-type handle, split into pieces, one of which cut into his wrist, causing damage for which he seeks to recover $250,000.
The claim has been timely filed in the Court of Claims on July 1, 1964, and has neither been tried nor brought before any other court or tribunal.
Mr. Schanberg testified that his wrist was bleeding profusely. He was given immediate first aid by the building's nurse. The police were notified, an ambulance arrived, and he was taken to Beekman-Downtown Hospital. There the injury was diagnosed as a two-inch laceration of the wrist, a severance of the median nerve and the palmaris longus tendon of the hand and of the flexor sublimis of the index and middle fingers, and a partial severance of the flexor pollicis longus and flexor carpi radialis longus tendon; all injuries being on the right hand. Claimant had not before injured his right hand.
A traumatic surgeon was summoned, claimant was X-rayed and prepared for major surgery, and under general anesthesia the median nerve was repaired, the palmeris longus tendon was excised, and the flexor carpi sublimis tendon to index and middle finger was repaired. Claimant's right arm was elevated, immobilized and splinted in plaster, antibiotics were prescribed, and he remained in the hospital until June 30th.
On June 16th, at the operating surgeon's request, he was examined by a specialist in physical rehabilitation, who instructed him in shoulder and elbow motion exercises to prevent further contractures. After his discharge from the hospital, Mr. Schanberg was again examined by the rehabilitation specialist, in September of 1964 and in June of 1966. Loss of sensation at the distal ends of the right thumb, index and middle fingers was noted (see Exhibit 7), as well as a swelling of the volar aspect of the right wrist, which claimant's expert ascribed to the damage to the nerve, and which he regarded as permanent in character. This ganglion, 1 3/4 , disturbs claimant mentally and physically.
It has long been the rule in New York, in conformity with ancient English common law, that those who enter premises upon business which concerns the occupier, and upon his invitation, express or implied, are owed an affirmative duty to protect them, not only against dangers of which he knows, but also against those which with reasonable care he might discover. (See Prosser on Torts, 2nd Edition, at page 453).
The American Law Institute makes a somewhat different classification, omitting all references to invitees, but first distinguishing between trespassers and licensees, and then separating the latter category into 'gratuitous licensees' and 'business visitors'. (See Warren's Negligence, Vol. 3 at pages 204--205). The business visitor is defined as
'a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.' Restatement of the Law of Torts Vol. 2, Section 332
It is clear to the Court that Mr. Schanberg was legitimately on the premises in connection with duties that were useful to both his employer and to the State of New York. Accordingly, the latter was under a duty to use reasonable care to prevent injury to him, consistent with its ability to apprehend danger to him from his presence there or from his use of its facilities.
As regards the particular instrumentality causing claimant's injury, Warren's Negligence (Vol. 5, page 338) has this to say:
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