Pro se Claimant failed to establish Defendant was negligent in maintaining Correctional Facility building roof.
|Claimant short name:||JOHNSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Harold Johnson, 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:||March 30, 2018|
|See also (multicaptioned case)|
Pro se Claimant, Harold Johnson, failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries he sustained on March 10, 2015, when he was injured at Franklin Correctional Facility (hereinafter, "Franklin"). The trial of this Claim was held on November 15, 2017, 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 submitted into evidence eight documents (Exs. 3, 4, 5,13, 14, 15, 17, and 18). The Court also admitted into evidence page 1 of Exhibit 1 and reserved its decision on the State's objections to the introduction into evidence of the remainder of Exhibit 1, as well as the State's objections to Claimant's Exs. 6, 7, 8, 9, and 12. Upon due consideration, the Court now overrules the objections to those exhibits, and they are admitted into evidence and will be considered by the Court. The State submitted two exhibits into evidence (Exs. D and I). Claimant testified on his own behalf and Defendant called one witness to testify, Jeffrey Brown, who, in March 2015, was a maintenance supervisor at Franklin.
Claimant testified that, on March 10, 2015, he was performing his prison job delivering soap and tissues to various departments within the facility. He was accompanied by another inmate and the items were on a cart. At approximately 1:45 p.m., he exited the building where all the facility laundry is done (also known as the "State Shop"). The other inmate held the door open for him. Claimant pulled the full cart out of the door behind him, stood outside, and lit a cigarette. Claimant referred to Exhibit D, a color photograph depicting the entrance to the State Shop, and stated that he was standing at the edge of the building's overhang, by where the date stamp numbers on the photograph are located. He further testified that the inmate holding the door was engaged in a conversation with another inmate as he held the door open, and, when the conversation concluded, the inmate let the door close. The door was on a spring hinge and the door slammed shut. Claimant stated that, when this occurred, all the snow and ice fell off the roof of the building and struck him on the head and neck, causing him to fall to his knees (see Court Exhibit 1). Claimant alleges the Defendant was negligent in failing to properly maintain the building's roof by failing to remove the snow and ice.
Claimant submitted into evidence a memorandum from Correction Officer Ferriero to Sergeant Dumas as Exhibit 12. The memo states that the officer was sitting in his shack outside of the Commissary when he heard a loud noise behind him. He came out of the shack and observed snow and ice had fallen from the roof in front of the doors to the Commissary, and Claimant bent over with snow and ice on his head and neck. Claimant told the officer he needed to go to emergency sick call, and he called to have another officer come to escort Claimant to the medical unit.
Mr. Brown testified that he is currently the Plant Superintendent at Washington Correctional Facility and has been employed there for almost one year. Prior to that, he was a Maintenance Supervisor at Franklin, and he has been employed by the Department of Corrections and Community Supervision since 1999. The witness stated that, while at Franklin in 2015, he supervised snow removal. He said that the Fire and Safety officer brought any hazards he observed at the facility to the witness' attention, so the witness could assign the appropriate employee (and inmate[s]) to correct the issue. Mr. Brown stated that, generally, he worked the 7:00 a.m. to 3:00 p.m. shift and, on March 10, 2015, he started his shift at 6:45 a.m. He said that the Fire and Safety officer spoke to him that morning, at the beginning of his shift as he picked up his keys, about the accumulation of snow on walkways, seeing that snow had accumulated on the walkways and over the entrances to several buildings within the facility, including the State Shop/Commissary area.
Mr. Brown stated that there are priorities for snow removal. The highest priority (priority 1) is the perimeter of the facility; priority 2 are the walkways and roadways within the facility; and priority 3 are other areas, such as parking lots.
After speaking with the Fire and Safety Officer on March 10, 2015, Mr. Brown proceeded to his office and filled out a Maintenance Work Order Request (No. 15-1027) to "Roof Rake all Entrances in Main & Annex" (Ex. 14). The work was performed by Craftsman K. Smith and two inmates and was completed in one hour. According to Mr. Brown, this means that the work was completed within one hour of when he assigned the work by issuing the work order request. The Work Order Summary shows that Work Order No. 15-1027 was completed on March 10, 2015 and involved snow raking the roofs of all dorms (Ex. 18). The witness stated that the State Store is not a dorm building, however, he knows that the State Store roof was the first roof raked that morning.
"[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 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 [entranceway] 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 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).
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 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. The testimony of Mr. Brown established that Defendant was aware of a dangerous condition of an accumulation of snow on the roofs of the buildings at Franklin on the morning of March 10, 2015. The Court finds that, based on the testimony of Mr. Brown and the information contained in Exhibits 14 and 18, the dangerous condition over the entrance to the State Shop was alleviated within one hour of when Mr. Brown completed the work order request form (Ex. 14) at approximately 7:00 a.m. that morning. Claimant failed to establish that the roof of the State Shop was not raked or was raked improperly. Further, there was no evidence as to the weather conditions on March 10, 2015. It is unknown if the temperature was warm and if any snow melted and fell from higher up on the roof than a roof rake could reach.
The Court finds and concludes that Defendant had notice of the dangerous condition and alleviated it in a reasonable time by raking the snow from the roof.
To the extent Claimant is maintaining an action for medical malpractice or medical negligence, those causes of action are dismissed for want of proof.
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, and not otherwise addressed herein, are now overruled.
The Chief Clerk is directed to enter judgment accordingly.
March 30, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims