Court finds that Claimant failed to establish by a preponderance of the evidence that Defendant was negligent in connection with his fall on a snowy walkway at a correctional facility.
|Claimant short name:||RAMOS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||FRANZBLAU DRATCH, P.C.
By: Brian M. Dratch, Esq.
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Michael C. Rizzo, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||July 14, 2017|
|See also (multicaptioned case)|
Claimant, Raymond Ramos, failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries he sustained on December 13, 2007, when he slipped and fell on a paved walkway/roadway at Franklin Correctional Facility (hereinafter, "Franklin").
A bifurcated trial, addressing liability issues only, was held on November 15, 2016 at the Court of Claims in Albany, New York. There were three witnesses: Claimant; Ronald Jarvis, a civilian employee of the Department of Corrections and Community Supervision (hereinafter, "DOCCS"), who has worked as a plumber/steam fitter as part of the maintenance group at Franklin since 1999; and Frank Clark, another DOCCS' civilian employee, who has worked at Franklin for over 27 years and was a plant utilities engineer in 2007. Thereafter, the parties were granted additional time to order a transcript and submit post-trial memoranda.
On December 13, 2007, between 7:30 -7:45 p.m., Claimant left his dormitory to go to his job as a recreation porter. It is a short distance from the doorway to a paved walkway/roadway in front of the building that is used for combined pedestrian and vehicular traffic. There are no steps in front of the dorm, so the short distance from the door to the walkway/roadway is flat. Mr. Ramos said that he was perhaps two or three feet from his doorway, after turning right along the walkway/roadway, when a vehicle approached, came quite close to him, and beeped its horn. He jumped, or moved quickly, to get out of its way, because he feared being hit, and slipped and fell (Tr., pp. 20, 24- 25, 50-51). At his examination before trial, conducted on May 21, 2014 (hereinafter, "Claimant's EBT"), Mr. Ramos said that he moved out of the way of the vehicle because drivers habitually tried to hit inmates as they walked (Ex. C, p. 40). He also said that the vehicle did not have a plow attached to it and was not involved in plowing operations at the time he fell. At trial, Claimant testified that the driver of the vehicle did not stop to see if he was alright (Tr., p. 25). At his EBT, however, Mr. Ramos said that the driver did stop (Ex. C, pp. 26-27). He further said that a housing officer came to his assistance, called for a van, and had Mr. Ramos taken to Franklin's infirmary.
Mr. Jarvis and Mr. Clark said that the walkway/roadway is about 20 feet wide, six or seven feet of which is demarcated by a yellow line as the pedestrian walkway. The yellow stripe could be obscured, however, if there was snow on the walkway/roadway.
Claimant's signed Inmate Injury Report recites that he "slipped on ice" and that his "feet slipped out from underneath" him (Ex. 1). The Claim also alleges that Mr. Ramos slipped and fell on ice that was hidden under snow (Claim, ¶ 9). At both his EBT, and at trial, however, Claimant was more equivocal, stating that he slipped and fell on "[w]hatever was there … Whatever I fell on, it was covered with snow, so I couldn't say what I fell on" (Tr., pp. 45, 47; see Ex. C, pp. 39, 57-58). In fact, at one point during his EBT, Mr. Ramos stated that he "probably" tripped over a rock, or perhaps the lip of the walkway itself (Ex. C, p. 39). In any event, he agreed that he does not know what caused him to fall because he could not feel any obstruction with his feet, and, if there was any ice, it was covered by snow (Tr., p. 54; Ex. C, p. 58).
Claimant testified that it was cold and had snowed nearly all day on December 12, 2007, the day before he fell. He further stated that it continued to snow, on and off, on December 13, 2007, the day of his accident. It still was snowing when he left the dorm between 7:30-7:45 p.m. (Tr., pp. 17- 19, 37). In fact, at his EBT, Mr. Ramos said that it had been snowing for three days, was snowing heavily the entirety of the day before his accident, and that he stayed indoors all the next day until the trip when he fell because there was too much snow and it was still snowing, with the rate of snowfall becoming heavier after 3:00 or 4:00 that afternoon (Ex. C, pp. 22-23, 38). He said that he had not seen snowy conditions like that while he was at Franklin (Ex. C, p. 38). During those several days leading to his accident, Mr. Ramos said that the walkway/roadway had neither been plowed, nor had salt or dirt been applied to the path (Tr., pp. 17- 19, 37).
At trial, Claimant stated that the depth of the snow on the walkway/roadway reached "a little bit past my ankle" (Tr., p. 20; see p. 42). At his EBT, however, he said several times that the depth of the snow reached to about to his knees on the day before his accident and that, by the next day, when he fell, it was a bit higher still (Ex. C, pp. 23-24, 29, 57). At trial, he agreed that he "might have" said that the snow reached past his knee, but further agreed that was not the case, adding that the snow extended from three to five inches past his ankle (Tr., p. 42).
Mr. Ramos had been at Franklin for two years prior to the accident. He said that, during that time, the facility's staff typically removed snow using trucks with snowplows. He never previously had encountered any difficulty walking in snowy conditions at Franklin, and, accordingly, never had occasion to make complaints about such winter conditions prior to his fall.
Mr. Jarvis regularly worked the 7:00 a.m.- 3:00 p.m. weekday shift and has been involved in snowplowing/salting operations since he began working at Franklin in 1999. He said that snow removal operations are performed during regular shifts and workers stay after hours for as long as necessary in order to complete those tasks. He also said that workers might be called in for overtime plowing work, if needed. Mr. Clark typically worked the day shift as well, and also has been on the plow list for such overtime work for more than 25 years.
Both men said that the first priority, regardless of when the work was done, was to plow walkways/roadways where there is inmate traffic including, specifically, the area in front of Claimant's dormitory. Mr. Clark estimated that it took about 30 minutes to plow the walkways/roadways that form a square in front of the dormitory quadrangle. Typically, a minimum of four trips around the square was required, with the first pass being the pavement closest to the dormitories, which is the portion used as the pedestrian walkway. In fact, at 5:00 p.m. on December 13, 2007, the day of Claimant's accident, Mr. Clark was called in to work off of the plow list and his time card confirms that he worked overtime that day (Ex. A, p. 87; Tr., pp. 101-102, 115, 120). Although he did not have any personal recollection of plowing on December 13, 2007, accounting for the time it would have taken him to travel from his home to Franklin, and based upon his usual custom and practice, he believed that he would have plowed the area in front of Claimant's dormitory by 7:45 p.m. (Tr., pp. 102-103).
Franklin's staff use pickup trucks with plows attached, a front-end loader, and a sanding/salting machine to clear the walkways/roadways at the facility. Each of the State witnesses also explained that staff waits to put down salt/sand until after a storm is over because, until then, plows simply would be pushing the salt/sand off the walkway/roadway along with the snow.
Mr. Jarvis also said that staff, both on foot and in vehicles, monitor snow and ice conditions on the walkways/roadways 24 hours a day, seven days a week, and any issues are flagged and addressed. Mr. Jarvis noted that the area in front of Claimant's dorm is not a problem area, is "nice and flat," and slopes away from the dorm and the walkway/roadway (Tr., p. 69). Mr. Clark agreed, and also said that the area was not prone to the formation of ice (Tr., p. 93). Mr. Jarvis said that he has never seen snow allowed to accumulate at Franklin above knee height (Tr., p. 69). LAW
"[W]hen the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506, 511 ). Accordingly, while the State is not an insurer of those who enter upon its premises, and negligence cannot be inferred solely from the occurrence of an accident (see McMullen v State of New York, 199 AD2d 603, 604 [3d Dept 1993]; Tripoli v State of New York, 72 AD2d 823, 823 [3d Dept 1979]), it does have a common-law duty to maintain its facilities "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk," with foreseeability constituting the measure of liability (Basso v Miller, 40 NY2d 233, 241 , quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir. 1972], cert denied 412 US 939 ; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 ). That duty extends to the State's institutions, including its correctional facilities (see Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]).
To establish a prima facie case of negligence in a slip and fall case, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Solomon v City of New York, 66 NY2d 1026, 1027 ; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ; Keating v Town of Burke, 86 AD3d 660 [3d Dept 2011]). The existence of a dangerous condition is generally a question of fact that may hinge upon the facts and circumstances peculiar to each case (Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).
"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 [D]efendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1315 [3d Dept 2007]). A claimant "can establish constructive notice through evidence that the defendant 'was aware of an ongoing and recurring unsafe condition which regularly went unaddressed' " (Mazerbo v Murphy, 52 AD3d 1064, 1066 [3d Dept 2008], appeal dismissed 11 NY3d 770 , quoting Kivlan v Dake Bros., 255 AD2d 782, 783 [3d Dept 1998]). "When a property owner has 'actual knowledge of the tendency of a particular dangerous condition to reoccur, he [or she] is charged with constructive notice of each specific recurrence of that condition' " (Kivlan v Dake Bros., supra, quoting Columbo v James River, II, Inc., 197 AD2d 760, 761 [3d Dept 1993]; accord Bush v Mechanicville Warehouse Corp., 69 AD3d 1207, 1208 [3d Dept 2010]; Weisenthal v Pickman, 153 AD2d 849, 851 [2d Dept 1989]).
"The critical issue to be resolved is whether, under the prevailing conditions, the State fulfilled its duty to take appropriate measures to keep the [walkway/roadway] safe" (Goldman v State of New York, 158 AD2d 845, 845 [3d Dept 1990], appeal dismissed 76 NY2d 764 ; see McGowan v State of New York, 41 AD3d 670, 671 [2d Dept 2007], quoting Pappo v State of New York, 233 AD2d 379, 379 [2d Dept 1996]).
The standard of reasonableness in slip and fall cases involving snow and ice also must be assessed "with an awareness of the realities of the problems caused by winter weather," meaning that "there must be evidence that the presence of the snow or ice created a dangerous condition which defendant knew or in the exercise of reasonable care should have known existed" in order to establish a breach of duty in such cases (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681 [3d Dept 1988]; see Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]; Fusco v Stewart's Ice Cream Co., 203 AD2d 667, 668 [3d Dept 1994]). "[A] landowner's obligation to take reasonable measures to correct storm-created snow and ice conditions does not commence until after the storm has ceased" (Hilsman v Sarwil Assoc., L.P., 13 AD3d 692, 693 [3d Dept 2004]) and for a reasonable time thereafter (Wood v Schenectady Mun. Hous. Auth., 77 AD3d 1273 [3d Dept 2010]; Boynton v Eaves, 66 AD3d 1281 [3d Dept 2009]). Claimant bears the burden of showing that the State failed to exercise due care to correct a dangerous condition within a reasonable time after the cessation of the weather (Marcellus v Littauer Hosp. Assn., supra at 681).
In Correa v State of New York, UID No. 2009-013-506 (Ct Cl, Patti, J., Oct. 23, 2009), the Court quoted from Crabtree v State of New York (Ct Cl, Claim No. 85882, Bell, J., March 11, 1994) as follows:
… it is virtually impossible to clear all snow and ice from areas … in northern portions of New York in the wintertime. The fact that an inmate falls on correctional facility premises does not render the State liable if the conditions existing at the time of the accident were not so unusual, dangerous or different from the conditions ordinarily prevailing during the winter months in the locality (citations omitted).
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant failed to establish his Claim by a preponderance of the credible evidence because he did not establish that a dangerous condition existed, or, assuming that one did exist, that Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time. Moreover, the Court concludes that a storm was in progress at the time of this accident so that Defendant's failure to alleviate any dangerous condition is excused. The Court found the testimony of Mr. Jarvis and Mr. Clark to be more persuasive than that of Claimant, whose testimony the Court found to be marked by imprecision, inconsistency and, in a few instances, embellishment.
Mr. Ramos failed to establish by a preponderance of the credible evidence that a dangerous condition existed where he fell. He initially alleged that he slipped on ice. In fact, he does not know what, if anything, caused him to fall. He did not see ice. He did not feel ice, or any other dangerous condition, under his feet. The Court concludes that his fall may be attributable, as much as anything, to his decision to jump or move quickly out of the way of the oncoming vehicle, a rash action in the snowy conditions described. The Court rejects as implausible the reason Mr. Ramos proffered for his decision to jump or move quickly, that Franklin staff habitually tried to hit inmate pedestrians as they drove. Certainly, the record is devoid of evidence of prior similar accidents.
The Court also finds Claimant's narrative that the walkways/roadways were left unplowed for several days, with ankle or knee-deep snow covering the paths, to be incredible. Again, to the Court's mind it is highly unlikely that Franklin's staff completely disregarded such conditions and failed to address them at all so that pedestrians, who would include both staff and inmates, and vehicles without plows, like the one Claimant moved to avoid, and which would be driven exclusively by Franklin staff, essentially were left to fend for themselves. To the contrary, the testimony of the Franklin employees, was much more persuasive, describing a thoughtful snow removal process that prioritized areas where pedestrians would need to travel. Moreover, the record establishes that Mr. Clark did come in off the plow list earlier on the afternoon when Claimant fell and, according to his usual custom and practices, may well have plowed the very area where Mr. Ramos fell at or before the time of the accident. Moreover, to the extent the snow removal efforts by Franklin's staff were unable to keep pace with the falling snow - a proposition that Claimant failed to establish to the Court's satisfaction - the Court concludes that any failure to remove all of the snow is excused because the storm in progress defense applies.
Assuming, arguendo, that there was a dangerous condition, the Court further finds that Claimant failed to establish by a preponderance of the credible evidence that Defendant either created the dangerous condition or had notice thereof and failed to alleviate the condition within a reasonable time. There is no evidence that the State created the unknown condition. Claimant, likewise, failed to show that the State had constructive notice of a dangerous condition. There is nothing in the record to suggest that there was any ice under the snow at any time, including the time of the accident. According to Mr. Ramos, it had been snowing, at variable rates of intensity, for several days. There is no suggestion that any freeze/thaw cycle occurred so that ice might have formed during that period. Moreover, the State employees testified that the area was flat, drained well, and was not prone to ice formation. Thus, the Court further determines that Claimant failed to establish that the State even had a "general awareness" that a dangerous condition might be present in that place which, in any event, is legally insufficient to constitute notice of the particular circumstances that caused a person's injury (Piacquadio v Recine Realty Corp., 84 NY2d 967, 968-969 ; Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 ; Richer v State of New York, 31 AD3d 943, 944 [3d Dept 2006]).
Additionally, by merely plowing the snow, Defendant cannot be said to have created or exacerbated a dangerous condition (see Espinal v Melville Snow Contrs., 98 NY2d 136, 142-143 ; Cardinale v Watervliet Hous. Auth., 302 AD2d 666, 667 [3d Dept 2003]). The failure, during snow removal, to remove all the snow or ice from a pathway or parking lot does not constitute negligence and does not constitute the creation of a hazardous condition (Wheeler v Grande'Vie Senior Living Community, 31 AD3d 992, 992-993 [3d Dept 2006]; Gentile v Rotterdam Sq., 226 AD2d 973, 974 [3d Dept 1996]). Here, it was established that it had snowed for a considerable portion of several days preceding the accident, and there was an accumulation of snow on the ground. It was further established that Defendant had maintenance workers out plowing the facility's walkways/roadways on the date of Claimant's fall. Claimant's proof did not establish that Defendant failed to exercise due care in maintaining the roads and paths at Franklin. The Court concludes that Defendant responded to the weather conditions by plowing the walkways/roadways within the facility, and did so even though a storm was in progress at the time of Claimant's fall. Therefore, the Court finds that Defendant acted reasonably under the circumstances. CONCLUSION
Accordingly, the Court determines that Claimant failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with his Claim and the Claim is dismissed. All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial are now overruled.
The Chief Clerk is directed to enter judgment accordingly.
July 14, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims