Following a trial, the claim is dismissed for claimant's failure to prove the claim by a preponderance of the credible evidence. Claimant failed to show that defendant had actual or constructive notice of the snowy and icy condition of a walkway at Greene Correctional Facility, or that defendant failed to alleviate the condition within a reasonable period of time.
|Claimant short name:||PATRICK|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Franzblau Dratch, P.C.
By: Brian M. Dratch, Esq.
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Michael T. Krenrich, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 10, 2019|
|See also (multicaptioned case)|
Claimant commenced this action seeking damages for injuries sustained as the result of defendant's negligence that caused claimant to slip and fall on ice at Greene Correctional Facility (Greene C.F.) on January 3, 2015. The claim alleges that defendant was negligent in failing to properly maintain the area where claimant fell, including failing to observe the existence of a dangerous snowy and icy condition; failing to clean and plow the area; failing to salt the area; failing to post any signs warning of the dangerous condition; failing to barricade the area; and allowing claimant and other pedestrians to traverse the area where the dangerous condition existed. Claimant has been released from prison, finished parole, and now lives in Virginia.
Claimant was the only witness to testify in support of his claim. While at Greene C.F., claimant attended the GED program and worked as a porter. At about 4:20 p.m. on January 3, 2015, while on his way to the mess hall from the H-1 dormitory, he testified that he slipped and fell on snow and ice. He testified that it did not snow on January 3, 2015 but it had snowed on either January 1 or January 2 of that year. When it snowed at Greene C.F., claimant observed crews of 10 or 15 shoveling sidewalks, clearing paths, and throwing salt and sand on the paths. He did not see any maintenance crews plowing or shoveling that day.
Exhibit 1 is a hand-drawn map showing claimant's route as he exited H-1dormitory and headed to the mess hall.(1) The map depicts the area where he fell. Exhibit 1-A depicts the H-1 dormitory, and the Correction Officer booth across the road where the inmates line up. After lining up and beginning to walk toward the mess hall, the inmates encountered a snow bank which they all jumped over. After jumping over the snow bank, the inmates proceeded to a compound gate, through which vehicles passed on a road, and inmates and correction officers passed on a walkway. Claimant walked through the compound gate in order to go to meals, programs, or the infirmary, approximately three times per day. Within the compound gate area there was a blacktop walkway through a pedestrian gate. Exhibit 1-B was marked by claimant to indicate where the pedestrian gate was located at the end of the walkway. Claimant was walking through the pedestrian gate when he allegedly slipped and fell on snow and ice that covered the blacktop. Two other inmates helped him get up and he proceeded to sick call, claiming that the fall caused pain in his left shoulder. Claimant testifies that he had never complained about the condition of the walkway prior to that day, nor had he observed other inmates falling on the walkway.
Claimant testified that his only medical issues as of January 2015 were diabetes and high blood pressure. Although claimant denied having a prior rotator cuff injury to his left shoulder in November of 2014, Exhibit E shows that he had a prior injury to his left rotator cuff, with x-rays ordered in December 2014, and follow-up appointments scheduled with orthopedics in January 2015. The December 2014 x-ray showed old post-traumatic changes with osteoarthritis, impingement and bursitis (Exhibit E).
The defendant called Sergeant Sabrina Vinson as a witness at trial. She was the compound gate officer in January 2015 and had been working in that position at Greene C.F. for three years before the alleged accident occurred. She testified that at the compound gate, there is a main gate for vehicles, and two gates for pedestrian traffic that inmates use to travel to their meals and programs. The pedestrian gates are kept open all day, and Sergeant Vinson described the area as "[a] very highly trafficked area" (T: 69). For that reason, snow removal in the compound gate area is considered a priority.
As the compound gate officer, it was within Sergeant Vinson's discretion to call inmate maintenance crews to shovel or salt the area in the event of snow. If the snow was heavy, Sergeant Vinson would notify her supervisor and civilian maintenance workers would be called to plow and clear the roadway and walkways. She did not recall the condition of the ground on the day of the accident, nor did she remember claimant's fall. She did not recall another fall in that area for the three years prior to the alleged incident.
Exhibit C, a certified meteorological record for January 2015, shows that there was no snowfall on January 1, 2015 and only a trace amount of snowfall on January 2, 2015 at Albany International Airport. The recorded snowfall on January 3, 2015 was 1.6 inches, and the snow depth was 0 inches, with freezing rain, snow, ice pellets, mist and rain. The temperature was 33 degrees maximum with a minimum of 20 degrees. The Watch Commander's Log for Greene C.F. recorded snow at 2:00 p.m. on January 3, 2015 (Exhibit B). Sergeant Vinson wrote claimant's statement to her on the Inmate Injury Report as : "Walking on walkway to chow slipped" (Exhibit A). Exhibit D, claimant's Ambulatory Health Record for January 3, 2015 notes: "No overt deformity . . . [no] swelling or redness."
LAW AND DISCUSSION
"When 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 ). It is well established under the common law that the State has the duty to maintain its facilities in a reasonably safe condition, including its correctional facilities (Preston v State of New York, 59 NY2d 997 ; see Heliodore v State of New York, 305 AD2d 708 [3d Dept. 2003]; Bowers v State of New York, 241 AD2d 760 [3d Dept. 1997]). "Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as people at liberty can, the State owes a duty of care to safeguard inmates" (Sanchez v State of New York, 99 NY2d 247 ). However, the State is not an insurer to those who enter upon its premises and negligence cannot be inferred from the happening of an accident (see McMullen v State of New York, 199 AD2d 603 [3d Dept. 1993]; Tripoli v State of New York, 72 AD2d 823 [3d Dept. 1979]). The State's duty to protect inmates is limited to the risks of harm that are reasonably foreseeable (Sanchez v State of New York, 99 NY2d 247 ).
To establish a prima facie case of negligence, claimant's proof must show, 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 and failed to alleviate the condition within a reasonable time; and (4) the condition was a proximate cause of the events resulting in claimant's injuries (Solomon v City of New York, 66 NY2d 1026, 1027 ; Keating v Town of Burke, 86 AD3d 660, 660-661 [3d Dept. 2011]). "In a slip and fall case such as this, claimant has the burden of establishing a dangerous or defective condition that defendant created or had knowledge (actual or constructive) of, and that such condition was a cause of the accident" (Gonzalez v State of New York, 60 AD3d 1193, 1194 [3d Dept. 2009], lv denied 13 NY3d 712 , citing Seaman v State of New York, 45 AD3d 1126, 1127 [3d Dept. 2007]; Heliodore v State of New York, 305 AD2d at 709; Malossi v State of New York, 255 AD2d 807, 807 [3d Dept. 1998]; see also Rios v State of New York, UID No. 2016-041-510 [Ct Cl, Milano, J., Nov. 1, 2016). "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 a defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837  [citations omitted]; see Heliodore v State of New York, 305 AD2d at 709). "[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 Sarwill Assoc., L.P., 13 AD3d 692 [3d Dept. 2004] [citations omitted]), and for a reasonable time thereafter (Wood v Schenectady Mun. Hous. Auth., 77 AD3d 1273 [3d Dept. 2010], citing Boynton v Eaves, 66 AD3d 1281, 1282 [3d Dept. 2009]; Martin v Wagner, 30 AD3d 733, 734 [3d Dept. 2006]). Claimant bears the burden of proving that defendant failed to use due care to correct a dangerous condition within a reasonable time after the cessation of the storm (Marcellus v Nathan Littauer Hosp. Assn., 145 AD2d 680, 681 [3d Dept. 1988]).
Claimant's argument in support of establishing a prima facie case is that it had not snowed for 24 to 48 hours prior to claimant's fall, and that defendant should have been aware of the dangerous condition given that it was January in upstate New York. However, claimant offered no credible proof that defendant had actual or constructive notice of the dangerous condition, or that defendant failed to alleviate the condition within a reasonable time. Claimant's allegation that he did not see anyone salting or sanding the walkway where he fell is insufficient to demonstrate that any correction officer or other DOCCS employee had actual notice that the snow and ice existed where he fell (see Seaman v State of New York, 45 AD3d at 1127; Heliodore v State of New York, 305 AD2d at 709). Further, claimant offered no proof to indicate that, if present, the ice "had remained for any 'appreciable length of time' " (Heliodore v State of New York, 305 AD2d at 709, quoting Hamilton v Rite Aid Pharms., 234 AD2d 778, 779 [3d Dept. 1996]). Claimant's testimony at trial that it had not snowed for 24 to 48 hours prior to his fall was contradicted by the Watch Commander's Log which showed that it was snowing at 2:00 p.m. on January 3, 2015, only two hours and twenty minutes prior to claimant's fall (Exhibit B), and meteorological data which showed that it snowed 1.6 inches on January 3, 2015, and that it snowed only a trace amount on the day before (Exhibit C). Thus, even if the Court credited claimant's testimony that a dangerous condition existed, the Court would still find that claimant failed to show that the dangerous condition existed for an appreciable amount of time, as the exhibits indicate that it was snowing at the time that claimant fell (see Heliodore v State of New York, 305 AD2d at 709). Claimant did not produce any maintenance records nor did he call a maintenance supervisor to testify at trial as to any maintenance calls that may have occurred on January 3, 2015. Moreover, claimant's credibility was undermined by his feigned surprise at the questions regarding the prior injury to his left shoulder when confronted with his medical records at trial.
Based upon the Court's observation of the demeanor of the witnesses and its review of the credible evidence, the Court determines that claimant has failed to prove his claim by a preponderance of the credible evidence. Therefore, claim number 127561 is hereby DISMISSED.
Let judgment be entered accordingly.
April 10, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. All exhibits were stipulated to at trial and received into evidence by the Court.