Claimants seek to recover for injuries allegedly sustained by Claimant Troy S. Kientz ^[FN1] in a fall at the Amherst Campus of the State University of New York at Buffalo. The matter proceeded to trial on November 16, 17 and 19, 2015. By agreement of the parties on the record [*2]at the start of the trial, questions of negligence became bifurcated from damages and causation, with the latter to be scheduled for trial, as needed, at a future date.

In the course of the trial Mr. Kientz testified in support of recovery, and called six present or retired employees of the State University of New York at Buffalo (University) as fact witnesses. Claimant also produced David Quesnel, a professor of materials science at the University of Rochester, as an expert witness. The State, in turn, rested without calling witnesses, but did read excerpts from Mr. Kientz's deposition of December 19, 2006, into the record. ^[FN2] A total of 25 exhibits were also introduced into evidence. Having reserved decision at the conclusion of proof to review the testimony and exhibits, I now find in favor of Claimants, in limited part.

I find that Claimant was born in the spring of 1973, and is now 42 years old. He is married, and the father of six children. In addressing his educational background Mr. Kientz reported dropping out of high school due to a seizure disorder, although he later obtained a GED ^[FN3] degree. He noted that he is no longer seizure prone.

I find that Claimant sustained injuries to his right knee, lower leg and foot at approximately 3:15 p.m. on September 21, 2005,^[FN4] while working at the University's North Campus in Amherst. At that time Mr. Kientz was employed as a landscaper for Scott Lawn Care, and also acted as the foreman of two other landscapers assigned to work with him. Their duties that day consisted of lawn mowing, edge trimming and flower bed weeding at a dormitory complex known as Hadley Village. They performed those services pursuant to a contract between their employer and the University for landscaping work at several dormitory areas on the campus. Claimant added that over the entire time he had worked for Scott Lawn Care — some seven years — his employer had maintained the Hadley Village area on behalf of the State. Mr. Kientz further recalled that when he was first hired his duties at that location were limited to the weeding of flower beds, but he later performed other functions, including lawn mowing, and the trimming of lawn edges with a gas-powered edger.^[FN5]

I find that Hadley Village consists of a number of student residential buildings and parking lots set within a perimeter fixed by several major campus roadways. At its south and west border John James Audubon Parkway (Audubon Parkway) arcs to the west, and then north. To its immediate east Hadley Road runs in a north-south direction. Its north edge adjoins Rensch Road, a four-lane roadway with a center median that runs in an east-west direction. Without question all those roadways are owned and maintained by the University.

I find that September 21, 2005, was a cool, sunny day. Claimant and his two crew [*3]members drove together to Hadley Village in a truck and trailer owned by their employer. They parked along the curb of the northbound section of Audubon Parkway adjoining their work site at approximately 8:30 a.m., and commenced their landscaping duties. They continued their routine over the hours that followed, without incident.

Claimant initially mowed lawn areas at the site. At some point as the day progressed he instead began to trim grass along vertical posts and curb edges, using a powered edger. As he performed those functions, Mr. Kientz eventually moved north along the west curb line of Hadley Road to the intersection of Rensch Road. He then worked his way west along the south curb of Rensch Road, toward Audubon Parkway, again trimming grass from the curb edge, as well as the sign posts in the area of the highway. As he proceeded along Rensch Road Mr. Kientz walked in the roadway, adjacent to the curb, facing west, and held the edger with the trimming mechanism to his left. His focus over that time was on trimming grass, while also watching for oncoming cars or pedestrians. Mr. Kientz did not specifically look down onto the road surface as he moved, in the belief that the roadway represented "the one constant" in his work. His safety equipment was limited to protective eyewear,^[FN6] although he also wore work boots and long denim slacks.

As he drew closer to Audubon Parkway Claimant's right leg suddenly dropped, and he fell down to the roadway surface. At that point Mr. Kientz first observed that he had stepped onto a storm sewer receptacle cover (hereafter "sewer cover" or "grate"), and that his lower leg had fallen through a gap in that cover. He tried to extricate himself, but found that his leg was stuck in the cover opening at knee level. He then sat and waited as help was summoned.^[FN7] A short time later Mr. Kientz received assistance in removing his leg from the sewer receptacle. An ambulance crew subsequently arrived at the scene to take Claimant's vital signs and examine his leg. He refused to be taken to the hospital, but did follow the recommendation of the emergency medical responders to seek treatment at a hospital.

As Claimant first tried to remove his leg from the storm sewer, and then waited for help, he observed that a slat was missing from the sewer cover. The grate appeared to him as if it had not been disturbed for a while, with dirt trapped along its recessed edges. Mr. Kientz acknowledged that he had not seen the sewer opening before the fall, and that nothing along the roadway would have obstructed his ability to do so. He also acknowledged that he had not observed any defects in the sewer cover in any prior trips to the site. Claimant added that before he left the scene after the accident he observed University employees use a pry bar ^[FN8] to remove the grate from the sewer receptacle.

Claimant further testified that approximately one month after the accident a coworker informed him that he had observed another sewer cover on the University's Amherst campus that had a missing slat. Mr. Kientz drove to that location and took a photograph of the grate (exhibit 6).

At trial Claimants also called Ronald J. Schmitz, who worked for the University as a police officer, and who responded to the accident scene shortly after the incident. When he arrived he observed Mr. Kientz seated on the curb with a knee injury, and called for an ambulance. As they waited for the ambulance to arrive Claimant advised him that he had been cutting grass, and had stepped through the receptacle cover. The officer then looked at the grate, and observed that a piece was missing. Officer Schmitz could not determine the length of time that the sewer cover had been broken. However, it appeared to him as if it had not been recently touched. In some 15 years of service before the incident he had never seen another broken sewer cover, and was unaware of any prior incident where someone became injured in such a manner. The officer also testified that when he first saw the grate after the incident he was surprised that such a "steel" device could break in that manner.

Scott Ludtka, the University's Associate Director of Facility Operations, also testified to traveling to the accident site following the incident. He observed the broken condition of the sewer grate, and agreed a missing slat had the potential to be a dangerous condition.

The witness noted that approximately 20,000 students attend the University's Amherst campus.^[FN9] Notwithstanding the common use of a sidewalk along the north side of Rensch Road, Mr. Ludtka confirmed that it was not unusual to see joggers, bikers and pedestrians along the south edge of the roadway.

Mr. Ludtka further testified that some 150 facility workers were employed by the University, including plumbers, electricians, carpenters and masons. He added that union contract workers, including masons, were also hired at times to perform project work. Responsibility for the maintenance of storm sewers fell generally within the University's plumbing department. However, the repair or rebuilding of sewer receptacles was performed by the University's masons, or by outside contractors.

Mr. Ludtka had no knowledge of any prior need to replace broken grates, or of any prior incidents involving those items. He estimated that the sewer cover on Rensch Road weighed more than 100 pounds. He believed that those covers would commonly be lifted from the receptacles by means of a pry bar, and that a sledgehammer would at times be used to loosen the sewer grate from the dirt and debris that would accumulate around their recessed outer edges. He suggested that a sewer cover would best be lifted by placing the pry bar along its outer edge, but agreed that the pry bar could also be positioned under a slat, then raised through the use of a piece of wood as a fulcrum.

The witness was unaware of any prior repair work being performed on the sewer receptacle in question, or of any circumstance where the sewer needed to be unplugged. Mr. Ludtka acknowledged that there were no protocols in place to periodically examine the storm sewers. He noted, however, that if an employee broke a grate a work order would have been issued to replace it. More generally, the University had a call system in place where students, faculty and others could report repair needs.

John G. Betker, Sr., a retired Assistant Supervisor for plumbing at the University, confirmed that the maintenance of storm sewers was one of his department's responsibilities. Mr. [*4]Betker also agreed that, unlike the University's sanitary sewers, there were no schedules for the inspection of the storm sewer system, and offered the belief that there was no reason to engage in periodic inspections. In that regard the witness noted the lack of large trees on the Amherst campus, such that leaves did not plug the University's storm sewer lines.^[FN10]

Mr. Betker also traveled to the accident site after the incident, and observed the hole in the sewer grate. He had no prior knowledge of that condition, and could not estimate the length of time in which the slat had been missing. The witness denied knowledge of any other incidents where sewer grates had broken.

John Hayes, the University's Assistant Director for Buildings and Grounds, also offered testimony relevant to the matter. The witness reported that he had started work with the University in 1979, and that Rensch Road had been constructed before that time. He could not state whether the sewer cover where Claimant fell was the original grate installed when the road was built. He acknowledged that over the course of his career the University had contracted with outside masons to rebuild sewer receivers that had deteriorated. However, none of those sewer vault repairs occurred along Rensch Road. He confirmed that there were no protocols in place for the inspection of sewer grates, and noted that he has never seen a grate being lifted from a sewer receptacle. Mr. Hayes was unaware of any other accidents involving a sewer cover, and reported that in a review of repair requests he conducted in conjunction with this litigation, he found no record of similar problems in the year prior to Claimant's accident.^[FN11] He also noted that facilities employees are trained to look for and report conditions requiring repair as they perform their duties.

Mr. Hayes also observed that his department serviced both the Buffalo and Amherst campuses, as well as another location in downtown Buffalo. He noted that the university had 28 lane miles of roadway, and approximately 400 to 500 storm sewer receivers and manholes.^[FN12]

Russell Devans, the former Supervising Plumber and Steam Fitter for the University confirmed that the storm sewer system fell primarily within his department's control. Now retired, Mr. Devans reported an employment history that started in approximately 1985. He recalled visiting the accident site on Rensch Road, but only after the broken sewer cover had been removed and replaced by another sewer grate taken from a loading dock area near his plumbing shop.^[FN13] At some point Mr. Devans also visited the site to measure the sewer receptacle, since there were no replacement grates in storage, and his department had to custom-[*5]order a replacement to be manufactured.

Mr. Devans confirmed that his department did not engage in routine inspections of storm sewers, and estimated that there could be 1,000 or more sewer receptacles on the two campuses. He observed that over his career the only area of campus that would experience storm sewer plugging problems was near the loading platform on the Amherst Campus, where delivery trucks would at times leave debris that would accumulate in the sewers. He was unaware of the condition of the sewer grate where Claimant fell until after the accident. He agreed, however, that a sewer cover with a missing slat is a potentially hazardous condition, but added his belief that grates are not normally positioned along areas where people walk.

Mr. Devans further noted that a capital project to repair sewer receptacles did occur at some point. That work was performed by outside contract workers, and not his department. However, he also acknowledged that over his 25 years at the University he observed workers repairing sewers on other occasions, evidently in the area of the Amherst Campus loading docks. He could not state whether the sewer receiver where Claimant fell had been repaired in the past. In that regard he observed that Rensch Road had been fully constructed before he began working for the University in approximately 1985.

The retired plumbing supervisor further testified that over his term sewer covers were rarely removed from their receptacles. He recalled that when workers did lift those grates they generally would use their hands, to prevent the covers from falling into the vaults. He also stated that surrounding debris would be removed through the use of screwdrivers, and that he had never observed employees using hammers to help loosen or lift a grate.

Michael Gehring, formerly a Maintenance Supervisor I at the University testified regarding his knowledge of storm sewer work over the term of his employment between approximately 2000 and 2013. The witness had no direct experience in storm sewers, but did oversee the replacement or repair of sewer receivers under contracts with union masons. Mr. Gehring did acknowledge his supervision of an outside capital project to replace concrete around the sewer receivers, but noted that the project took place only after the September 2005 incident. He denied any knowledge of repair work in the area of the storm receiver where Claimant was injured before the accident.

Mr. Gehring also acknowledged having observed the University employees removing sewer grates over his 13 years of employment. Those workers would use either a "J"- or "L"-shaped hook or their hands to lift the sewer grates, rather than a pry bar/pinch bar. He also recalled that dirt around the edges of the sewer covers would be loosened and removed through the use of a screwdriver or trowel. The witness denied any prior knowledge of the broken condition of the sewer grate where Claimant fell, and confirmed that no established plan existed for the inspection of the storm sewer receptacles.

From the testimony of six University employees/retirees I find that the storm sewer receptacle where Claimant fell was one of hundreds of storm sewer receivers and manholes ^[FN14] located along the 28 lane miles of roadway on the University's two campuses. The receptacles [*6]are constructed of either concrete or brick, and are fairly deep, to allow for water runoff from the University's roadways into the storm sewers to which they connect. Each sewer receptacle commonly has a concrete frame at its top that sits level with the adjoining roadway surface. Toward the inside of the concrete frame is a recessed lip that supports a grated cover. That sewer cover rests flat across the receptacle opening, at or slightly below the top of the concrete frame.

I find that the sewer grates commonly feature a series of slats and adjoining openings, to facilitate the drainage of water from the campus roads down into the receivers, while allowing vehicles and pedestrians to safely move across their surfaces. In Claimant's instance, however, a slat at the northeast edge of the sewer grate was missing. That slat would have run parallel to but furthest away from the curb.

Following the incident the sewer grate was removed from the sewer receptacle and placed in storage by Defendant.^[FN15] Claimants later retained a materials scientist, David Quesnel, Ph.D., who traveled to the University to inspect and photograph the sewer grate. Based upon Dr. Quesnel's testimony and photographs I find that the grate was fabricated from cast iron. It had been in place for at least 20 years, and had a 40- to 50-year estimated life span.^[FN16] The sewer cover lacked any signs of pitting, irregular corrosion or any construction-related defects.

Although the expert testified to taking measurements of the grate, little testimony was elicited on the point. However, two photographs of the grate taken by Dr. Quesnel respectively depict a tape measure and yardstick (see exhibits 18, 20), which support a length of approximately 27 inches.^[FN17] One of those photographs (exhibit 18) also supports that the missing slat would have been approximately 12 inches long. I so find.

More generally, from Dr. Quesnel's testimony and a review of various photographs I find that the sewer cover was rectangular in shape. Its exterior frame was of uniform thickness, with square iron pads extending slightly down from each bottom corner, to prevent wobbling. A crosspiece was positioned across the mid-width of the grate. The top of that crosspiece laid flat with the grate's overall surface, while the bottom bowed downward as a strengthening device. A series of six interior slats crossed the length of the grate at uniform widths. Those slats all extended across the center crosspiece. The tops of those slats were level with the top of the exterior frame and crosspiece, to allow for the free passage of traffic and pedestrians after it was positioned along the lip of the sewer receptacle's concrete top. Along its underside the second and fifth slats were bowed in shape, corresponding in width to the bowed shape of the centerpiece. The remaining slats, including one slat in question, were square or slightly rectangular in shape, and corresponded in depth to the exterior frame. Dr. Quesnel made clear that as a cast iron device, the grate was manufactured as a single unit molded — or "cast" — from [*7]molten iron.

Claimants' expert noted that the sewer grate had cracked in three places. Based upon his inspection and experience Dr. Quesnel was able to opine as to the order in which the breaks occurred, and the general nature of the force(s) that led to each break. The first crack occurred where the missing slat joined the center support. The metals expert testified to being able to make that determination based upon the significant abrasion of the area of the center crosspiece where the missing slat had previously connected. Dr. Quesnel offered that the abrasion occurred after the initial cracking at that site, by reason of the repeated up and down cantilevering of the unsecured edge of the slat, which gradually wore down the sharp cracked edges and further opened the gap between those two sections. In the expert's opinion the abrading process would have required hundreds of weight loadings along the cracked slat.

Dr. Quesnel observed that while the abrading process could have resulted from vehicular traffic, he rejected the idea that the original crack would have occurred in that manner. So also, while he acknowledged that cast iron would become more brittle at colder temperatures, he affirmatively rejected Defendant's suggestion that the original crack could have resulted from a snowplow blade over the winter months. In that regard Dr. Quesnel observed that the sewer cover would have been slightly recessed from the road surface, and that plow blades are designed with skids to prevent surface contact. Instead, the metals expert opined that the first crack resulted from a mechanical overload, and involved some direct application of force that caused a dent into the surface of the center crosspiece. The dent corresponded in size to the head of a sledgehammer, although the expert could not assert with any certainty that a hammer caused the crack. Dr. Quesnel further offered that the force of a pry bar or similar elevating device could also have caused the initial crack, although again without actually concluding that the first break occurred in that manner. He was certain, however, that the initial crack resulted from an outside application of force of such a degree as to cause an imprint into the center crosspiece.

Claimants' expert discovered a second crack in the exterior frame of the grate, adjacent to the outer end of a slat ^[FN18] immediately to the inside of the slat that ultimately broke off. In the expert's opinion the crack within the exterior frame resulted from the application of two forces. One of those, which he described as axial pressure, resulted from the outward pressure on the outside frame as the cracked slat moved downward against the center crosspiece. The second force consisted of an up and down twisting motion, or torsion, exerted upon the end piece as the cracked slat moved up and down.

The third crack occurred after the broken slat abraded at the center crosspiece, and the cantilever force of repeated up and down motions eventually caused it to break at its junction with the outside frame. The expert noted that the resulting crack line was sharp in its appearance, due to the sudden nature of the fracture. In Dr. Quesnel's opinion that complete fracture of the slat occurred only after thousands of up and down movements.

The expert offered several additional comments relevant to the claim. First, from his review of a photograph of water accumulation along Rensch Road (exhibit 3) he believed that traffic would tend to pass to the left of the sewer receptacle, such that tire movement across the [*8]grate would be less frequent than in the center of the lane. He also added that once the first crack became abraded it would be visible. In contrast, the second crack was positioned to the underside of the outside frame, and could only be seen if the grate were removed. The third crack appeared in conjunction with the complete break of the missing slat, and became visible at that point. Dr. Quesnel could offer no opinion as to how long the slat had been missing from the sewer grate prior to Claimant's accident.

I found Dr. Quesnel to be authoritative on the topic of metals, and quite measured in his presentation, and I credit his testimony in full.

Without question the State owes the public a nondelegable duty of care to maintain its roadways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271, 283 [1986]). Nevertheless, governmental entities do not serve as insurers of the safety of their roadways, and so long as a highway may be said to be reasonably safe for people who obey the rules of the road, that duty is satisfied (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978] [addressing liability of municipality for construction of highway with drainage ditches on each side]). Moreover, a separate consideration arises where the State contracts for the performance of work at its facilities. In such circumstances the State possesses a duty at common law ^[FN19] to provide those workers a safe work site, and would be liable for dangerous conditions that it created, or for which it possessed actual or constructive notice, and failed to remedy within a reasonable time (see Hess v Bernheimer & Schwartz Pilsener Brewing Co., 219 NY 415, 418 [1916] [employer's duty at common law to furnish a safe place to work extends to employee of contractor it retained]; see also Aragona v State of New York, 74 AD3d 1260, 1260-1261 [2d Dept 2010] ["Liability for a violation of Labor Law § 200 and common-law negligence may be imposed upon a property owner where, as here, the claimant's injuries arose not from the manner in which the work was performed, but rather from an allegedly dangerous condition at the work site, when the owner had actual or constructive notice of the dangerous condition"]). In either circumstance, however, the State's negligence cannot be presumed from the mere happening of an accident, and instead must be affirmatively established by competent evidence of a breach of a duty of care (Mochen v State of New York, 57 AD2d 719, 720 [4th Dept 1977]). Claimants bear the burden of proving their entitlement to relief, by a fair preponderance of the credible evidence (Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 [1976]). Conversely, to the extent it seeks to urge Mr. Kientz's comparative fault, the State would possess the burden of proof for that affirmative defense, again by a preponderance of the credible evidence (see 1A NY PJI3d 2:36 [2015]; CPLR 1411, 1412).^[FN20]

Initially, I find that the missing slat constituted a dangerous condition. In so doing I am [*9]mindful that "whether a dangerous or defective condition exists on the property of another so as to create liability 'depends on the peculiar facts and circumstances of each case' and is generally a question of fact for the [trier of fact]" (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997], quoting Guerrieri v Summa, 193 AD2d 647 [2d Dept 1993]). Factors for consideration include the width, depth, elevation irregularity and appearance of the defect, along with the time, place and circumstances of the injury (see Trincere, 90 NY2d at 978 [addressing a claimed sidewalk defect]). Even defects that otherwise might not be physically insignificant will be actionable if their intrinsic characteristics or the surrounding circumstances magnify the dangers they otherwise pose, so as to unreasonably imperil the safety of a pedestrian (see Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 78 [2015] [addressing sidewalk and stairway defects]).

Mindful that liability does not necessitate a finding that a defect created a trap (see Hutchinson, 26 AD3d at 78-79), in this instance the missing slat gave rise to a trap-like condition, in that pedestrians or joggers would only be endangered if they stepped onto the grate with a foot positioned in an east-west direction, parallel to the direction of the roadway. In that circumstance a significant safety hazard was presented, with the obvious potential for serious injury from falling through the hole in the grate. For that same reason the significance of the danger is not fully apparent unless someone is moving in that east-west direction.

Next, I find that pedestrian and other similar uses of the south edge of Rensch Road was foreseeable, and reject the State's position that because a pedestrian sidewalk had been constructed along the north side of that highway foreseeable users would have been limited to automobiles and other motor vehicles. In so finding I initially have considered that Defendant had contracted with Claimant's employer to perform lawn maintenance duties at Hadley Village, including edging work along the curb that adjoined Rensch Road, such that landscapers would have been expected to work along the south edge of the roadway. On that basis alone it was foreseeable that Mr. Kientz and his coworkers would step along the road edges that adjoined the dormitory complex. As to pedestrian use more generally, Rensch Road is a divided four-lane highway, with no sidewalk along its south edge. That side of the roadway immediately adjoins an area of student housing, on a campus of 20,000 to 25,000 people. Mr. Ludtka confirmed that while students would generally use the sidewalk on the north side of Rensch Road, it was not uncommon to see joggers, bicyclists and walkers along the roadway's south edge. Moreover, I note that under Vehicle and Traffic Law § 1234 (a) bicyclists and in-line skaters are authorized to travel along Rensch Road, with the proviso that they stay near the right-hand curb. Mindful that Vehicle and Traffic Law § 1156 (a) prohibits pedestrians from walking along the edge of a roadway where sidewalks are provided, I must question whether pedestrian use of the south edge of the roadway would be barred under that statute, in view of the absence of a corresponding sidewalk. It was thus also foreseeable that students and others on the campus would make use of that edge of the road for bicycling, skating, jogging and walking, since such uses were statutorily authorized and/or had been periodically observed by at least one long-term employee responsible for facility operations, Mr. Ludtka.

Liability on the part of the State would also require proof that the University either created the dangerous condition, or otherwise possessed actual or constructive notice of that condition (see Viele v Vyverberg, 83 AD3d 1428, 1429 [4th Dept 2011]). Based upon the testimony of Dr. Quesnel I find that the State affirmatively created the condition. The materials [*10]scientist credibly testified that the initial crack resulted from the direct application of force that caused a dent into the iron surface of the center crosspiece. That denting was consistent with the use of a sledgehammer or pry bar. Although there was a divergence of testimony on the means by which grates were removed from the sewer receptacles, there is proof that in some instances a sledgehammer was used to loosen the cover from the surrounding dirt, with a pry bar then used to lift the grate from the recessed receptacle lip. Mindful that there was some testimony that grates were usually lifted from the sewer receptacles by hand, after a screwdriver or trowel was used to clean out accumulated dirt, other University representatives described the use of tools in that process. Mr. Ludtka in particular confirmed the use of pry bars in grate removals, while adding that sledgehammers were used to loosen accumulated dirt. Indeed, Mr. Kientz himself observed workers use a pry bar to remove the broken grate following his injury. To the extent that Defendant suggested that snowplowing operations could have caused the initial cracking, Dr. Quesnel credibly refuted that idea by noting the designed placement of the grate slightly below the grade of the road and the top of the sewer receptacle, and the presence of skids on the snowplow blades to prevent damage to road surfaces.

I appreciate that there is no direct proof of the exact circumstance in which the slat initially cracked. Still, the opinion evidence offered by Dr. Quesnel, and the other proof regarding the ownership, location, maintenance and weight of the grate afford circumstantial support sufficient to establish that the crack occurred through an active effort at removal by the University's employees, or its contractors. In that regard I have considered that the grate weighed more than 100 pounds, and sat within a recessed cover that generally required dirt removal or loosening as a prelude to removal. The sewer receptacle on which it sat was owned and maintained by the University, and served a function that exclusively benefitted the University. Any inspections, maintenance, repair or rebuilding of any of the sewer receptacles on the two campuses similarly fell within the exclusive responsibility and control of the University, or workers with whom it contracted. Rensch Road itself was owned and maintained by the University. As a four-lane highway in an active university setting, that roadway and its sewer receptacles are unlikely settings for casual vandalism. Moreover, the circumstances of the initial cracking, in which an application of a lateral force caused a dent in the iron itself, likely involved a use of a tool associated with the loosening or lifting process. That factor similarly weighs against some casual misconduct by a third party, and instead supports deliberate action by the sole entity that would have reason to act. Thus viewed, I believe that the circumstantial evidence supports to a fair preponderance that Defendant cracked the grate in the course of its maintenance activities.

Even assuming, however, that the grate had been cracked by some entity or means beyond the University's control, liability would still attach by reason of the failure to remedy the defect. In that regard I am mindful that liability would require proof that the State possessed actual or constructive notice of that condition (see Viele, 83 AD3d at 1429). Clearly, the proof at trial does not support that University employees learned of the cracked condition and/or missing slat before the incident. Nevertheless, on the proof I find that the University possessed constructive notice of that dangerous condition. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural [*11]History, 67 NY2d 836, 837 [1986]).

Once again, the unchallenged testimony of Dr. Quesnel supports a finding of notice, notwithstanding the lack of proof as to when the sewer cover cracked. Claimants' expert provided unchallenged opinion testimony that the initial crack at the juncture of the first slat and the center crosspiece would have been visible upon close inspection, and would gradually have become more visible as hundreds of applications of force caused the sharp edges of the crack to wear down. Even then, however, it took repeated applications of force over additional time to cause the second crack to the bottom exterior frame, and then additional time — and thousands of applications of force — for the third crack to occur, causing the slat to break off. Accepting that the second crack was not readily visible, the first crack would have been increasingly visible as the deterioration of its edge progressed.

There is no proof as to when the slat itself broke off. Still, the testimony of Mr. Kientz supports that the break would have occurred before his incident. Claimant described his leg as dropping down to his knee as he stepped. He did not report any momentary support for his foot as he first stepped onto the grate, or feel or hear the slat break off under his foot. For that reason I find that the slat had broken away at some prior, but unknown time.

In weighing the time required to cause the initial crack to abrade to a point of facilitating the second and third cracks I also have credited Dr. Quesnel's observation that the pattern of water accumulation depicted in a photograph of Rensch Road after a rainstorm demonstrated that vehicular traffic did not routinely pass over the sewer cover, which adjoined the right curb. Irrespective of whether car tires or pedestrians contributed to the up and down motion that eventually led to the slat failure, those thousands of applications of force upon a grate positioned away from the common area of travel took time.

On the proof I accept that Defendant did not implement any plan for the routine inspection of sewer receptacles, and instead relied upon observations by University employees in the general course of their duties, as well as reports from students or the public. Still, that lack of an established inspection protocol would not exempt Defendant from constructive notice, where, as here, an inspection would disclose the cracked condition of the sewer grate. I reject the assertion that the University had no need to inspect the sewer receptacles and their covers. From the testimony that other sewer receptacles on the Amherst Campus had deteriorated, and needed rebuilding, I find that periodic inspections would have been appropriate — and indeed had in some manner been performed — to discover those repair needs. Further, since the projected useful life of a grate was generally between 20 and 40 years, and Rensch Road had been constructed at some point more than 26 years before the accident date, some periodic inspection of the grates in that area would have been prudent.

Based upon the above, I find that the State was negligent, and that its negligence was a cause of Mr. Kientz's fall.

I similarly find that Claimant was negligent. While Mr. Kientz may well have believed that a smooth road surface represented a constant that he could rely upon as he performed his work, he possessed the duty to observe those conditions that could readily be seen through the proper use of his senses (see Weigand v United Traction Co., 221 NY 39, 42 [1917] [pedestrian possessed duty to observe approaching street car when her view was unobstructed]; Lolik v Big V Supermarkets, 210 AD2d 703, 704 [3d Dept 1994], revd on other grounds 86 NY2d 744 [1995] [*12][store patron had duty to observe conditions on floor]; Johnston v State of New York, 127 AD2d 980, 981 [4th Dept 1987], lv denied 69 NY2d 611 [1987] [hiker in park possessed duty to observe warning sign]). He must share culpability by reason of his failure to look where he was stepping as he walked along the edge of the roadway while trimming grass along the curb edge. Mr. Kientz acknowledged that nothing impaired his ability to view the roadway as he advanced along Rensch Road, and the evidence otherwise makes clear that the sewer cover was not covered by leaves or other debris as might shield the dangerous condition. In my view Claimant could have avoided the accident by looking toward the road surface as he walked along Rensch Road, since the danger presented by the gap in the sewer cover corresponded to his direction of travel.

Based upon all the above, I believe the State should bear some greater responsibility for the accident than Mr. Kientz, and I hereby apportion liability at 60% against Defendant, and 40% against Claimants.

Lastly, I direct that the parties appear for a status conference on Wednesday, May 4, 2016, at 9:30 a.m., to schedule a date for the trial of damage issues.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.