Pro se Claimant failed to establish by a preponderance of the credible evidence that the State was responsible for his slip and fall on ice in the yard at a correctional facility.
|Claimant short name:||SAUNDERS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Samuel Saunders, 14-A-1658, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Christina M. Calabrese, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||December 14, 2017|
|See also (multicaptioned case)|
Pro se Claimant, Samuel Saunders, failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries he sustained on December 26, 2009, when he slipped and fell on ice in the large yard at Bare Hill Correctional Facility (hereinafter, "Bare Hill"). The trial of this Claim was held by video conference on August 2, 2017, with the parties at Clinton Correctional Facility, and the Judge at the Court of Claims in Albany, New York.
At trial, the Court had marked as Court Exhibits 1 and 2, respectively, Claimant's filed Claim and the State's Answer. Claimant did not offer any documents into evidence. The State offered one document (Ex. B), a portion of Claimant's certified medical record. Claimant objected on the basis that it was not his entire medical record. The Court reserved decision on the objection. Upon due consideration, the Court now sustains the objection and Exhibit B is not admitted into evidence. Claimant was the only person to testify at trial.
Claimant testified that, on December 26, 2009, he left his dormitory to proceed to the mess hall for the morning kosher meal. He left the dorm, and was walking on the walkway. He came to a corner, where he had to turn to get to the mess hall, when he slipped and fell on a sheet of ice. He testified that another inmate notified the correction officers that he had fallen, the officers came to his aid, and he was transported to the medical unit.
"[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]).
"The critical issue to be resolved is whether, under the prevailing conditions, the State fulfilled its duty to take appropriate measures to keep the [roadway/pathway] 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).
Moreover, landowners are not obligated to warn against conditions on the land that could be readily observed by the use of one's senses. Where the condition is open and obvious, "the condition is a warning in itself" (Tarricone v State of New York, 175 AD2d 308, 309 [3d Dept 1991], lv denied 78 NY2d 862 ; see also Ruiz v Hart Elm Corp., 44 AD3d 842, 843 [2d Dept 2007]; Cupo v Karfunkel, 1 AD3d 48, 51 [2d Dept 2003]; Herman v State of New York, 94 AD2d 161 [2d Dept 1983], affd 63 NY2d 822 ).
Finally, a claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen, and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 ; Lolik v Big V Supermarkets, 210 AD2d 703, 704 [3d Dept 1994], revd on other grounds 86 NY2d 744 ; Sharrow v New York State Olympic Regional Dev. Auth., 193 Misc 2d 20, 43 [Ct Cl 2002], affd 307 AD2d 605 [3d Dept 2003]).
Upon consideration of Claimant's testimony and observing his demeanor as he did so, as well as the two Court exhibits, 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. Claimant offered no proof as to how large the patch of ice was that he slipped on or the length of time it existed. He did not establish that the State created the condition or had notice thereof and failed to alleviate the condition within a reasonable time. Claimant did not submit any evidence that the State failed to address any dangerous condition within a reasonable time period after the cessation of inclement weather.
Based upon all the foregoing, the Court concludes that Claimant failed to establish his Claim by a preponderance of the credible evidence 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 sustained.
The Chief Clerk is directed to enter judgment accordingly.
December 14, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims