New York State Court of Claims

New York State Court of Claims
LOWE v. THE STATE OF NEW YORK, # 2018-040-066, Claim No. 124126


Following Trial, Court finds Claimant failed to establish State was responsible for his slip and fall on snow/ice at Correctional Facility.

Case information

UID: 2018-040-066
Claimant(s): THOMAS M. LOWE
Claimant short name: LOWE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124126
Motion number(s):
Cross-motion number(s):
Claimant's attorney: FRANZBLAU DRATCH, P.C.
By: Brian Dratch, Esq.
Defendant's attorney: BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Michael T. Krenrich, Esq., AAG
Third-party defendant's attorney:
Signature date: August 1, 2018
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, Thomas M. Lowe, failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries he sustained on December 20, 2012, when he was injured at Bare Hill Correctional Facility (hereinafter, "Bare Hill").

A bifurcated trial, addressing liability issues only, was held on February 27, 2018, at the Court of Claims in Albany, New York. There were three witnesses: Claimant; Christopher A. Vanderwiel, a maintenance supervisor for the Department of Corrections and Community Supervision (hereinafter, "DOCCS"); and Correction Officer (hereinafter, "CO") Jeffrey Day. Thereafter, the parties were granted additional time to order a transcript and then submit post-trial memoranda. At trial, Claimant submitted into evidence two documents (Exs. 1 and 2) and the State also submitted two exhibits into evidence (Exs. A and B), each of which was admitted without objection.

Claimant testified that, beginning on December 13, 2012, the weather at Bare Hill had been "[r]eally snowing and icy. That's how it was every day" (Tr., p. 21). He knew that there was ice on the ground for a day or two before his accident, or from about December 18, 2012, because he walked every day (id., p. 24). On the morning of December 20, 2012, he left his housing unit sometime after 6:00 a.m. to go to his prison job. At that time, Mr. Lowe related, "[i]t was snowing [r]eally hard, really hard," so that there already were three inches of snow on the ground, on top of the ice from the previous days (id., pp. 23-24). He reckoned that the ice was to of an inch thick when he left for work (id., pp. 57-58). His journey required him to walk, uphill, on Bare Hill's main sidewalk to the center gate (id., pp. 20, 24). Mr. Lowe said that it continued to snow all day (Tr., pp. 26, 50). He returned to his housing unit from work at about 4:00 p.m., and then left again at about 4:45 p.m. to walk to dinner in the mess hall, about half a mile away (id., p. 27). He walked, without difficulty or incident, as part of a large group of 250 inmates, and did not see anyone fall on the way to dinner (Tr., pp. 47-48). It still was snowing (Tr., p. 50).

Claimant said that he went back to his dorm after dinner, sometime between 5:00 and 5:30 p.m., again as part of a group of 250 inmates (Tr., pp. 25, 52-53). This time, they walked downhill along the facility's main walkway. It still was snowing (Tr., p. 50). Mr. Lowe could not see ice on the walkway because it was covered with a fresh coating of snow (Tr., p. 51). The path had not been salted (Tr., p. 29). After he traveled about a quarter mile, Claimant slipped and fell near a security booth (Tr., p. 30).

A CO, who saw the fall, told Mr. Lowe to report his injury to his housing officer when he got back to his dorm. Claimant said that he did report the fall to CO Day, who logged the event into the logbook (Tr., pp. 30, 32, 56). CO Day, however, was shown the dormitory logbook for December 19-20, 2012, and testified that no injuries are recorded in his entries for the periods from 3:00 p.m., December 19, 2012-7:00 a.m., December 20, 2012, and again from 3:00-9:00 p.m. on December 20, 2012 (Tr., pp. 84-87; see Ex. B).(1) CO Day did not know how Claimant came to be seen by Bare Hill's medical staff insofar as he recorded no injury in the dormitory logbook (Tr., p. 95).

The Inmate Injury Report contains Claimant's statement that he fell on his right knee and thigh on a walkway. Bare Hill medical staff also included Mr. Lowe's description that he felt a "ripping" sensation from his right thigh down to the foot, "which gets numb" (Ex. 1).(2)

Claimant said that inmate work crews typically shoveled the walks, including the one he traversed that day, but that they did not apply salt to the paths. He said that, in the past, he had seen them out early in the morning when he left for work (Tr., p. 19). However, on the day of his accident, Mr. Lowe said that he did not see anybody out shoveling (Tr., p. 29). It is Mr. Lowe's belief that his fall was caused by the ice he saw in the days preceding his accident, and which then was covered with snow (Tr., p. 31). Mr. Lowe said that he never previously had fallen on that walkway, nor had he ever made formal complaints about the condition of the walkway, although he said that he did make verbal complaints to COs (Tr., pp. 54-55).

Mr. Vanderwiel is Bare Hill's maintenance supervisor, however, he did not arrive at the correctional facility until shortly after Mr. Lowe's accident (Tr., pp. 62-63). He discussed Bare Hill's written plowing procedures policy, which was revised and reissued on November 21, 2011 (before Claimant's accident), and which the witness believed was in effect when he arrived at Bare Hill (Tr., p. 76; see Ex. A). He also noted, consistent with that policy, that the walkway where Claimant fell is plowed and scraped by his maintenance staff, and not by inmate work crews (Tr., pp. 68-69). Mr. Vanderwiel said that salt and sand are not put down while it is snowing because, to do so earlier, would be ineffective inasmuch as the salt/sand would be scraped away during subsequent plowing operations (Tr., pp. 70-71).

"[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 [1984]). 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 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir. 1972], cert denied 412 US 939 [1973]; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]). 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 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; 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 [1986]; 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 [1990]; 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).

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.

By Claimant's own account, it had been snowy during the several days leading up to Claimant's accident and that it snowed, at times heavily, throughout the entirety of December 20, 2012. He believed that there was ice underneath the snow cover, but 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. Mr. Lowe testified that he traveled to and from his evening meal as part of large groups of inmates, yet observed no other falls.

To the Court's mind, Mr. Lowe's description was not so unusual, dangerous, or different, from the conditions ordinarily prevailing during the winter months in northern locations like Bare Hill and, to the extent it was, his accident occurred during a storm which continued during the entire day so that the State did not have a reasonable time to alleviate the conditions after the storm ceased.

Finally, the Court notes that Mr. Lowe's credibility as a witness was undermined by his evasive, dissembling testimony on cross-examination, during which, on several occasions, he parried with Defense counsel in an attempt to make obscure and muddy, answers that were concrete and clear during his prior testimony on direct examination and/or at his examination before trial.

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.

August 1, 2018

Albany, New York


Judge of the Court of Claims

1. The Court notes that the logbook entry for the 3:00-11:00 p.m shift on December 20, 2012 is incomplete in the exhibit.

2. The dates on the Inmate Injury Report differ by one day from Mr. Lowe's account, with the document indicating that he was seen at 8:30 a.m. on December 20, 2012 with respect to an accident that occurred on the previous day, December 19, 2012 (id.). Claimant testified, however, that the dates on the Inmate Injury Report were incorrect (Tr., p. 39).