New York State Court of Claims

New York State Court of Claims
EMOND v. STATE OF NEW YORK, # 2019-040-064, Claim No. 123353


Court finds that Claimant failed to establish, by a preponderance of the credible evidence, that Defendant is liable for her trip and fall in the parking lot of a correctional facility.

Case information

UID: 2019-040-064
Claimant(s): JEANNE EMOND
Claimant short name: EMOND
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123353
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Jeanne Emond, Pro Se
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Michael T. Krenrich, Esq., AAG
Third-party defendant's attorney:
Signature date: August 12, 2019
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Pro se Claimant, Jeanne Emond, failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with her Claim. The trial of this Claim was held on June 11, 2019 at the Court of Claims in Albany, New York. At trial, the Court had marked as Court's Exhibits 1 and 2, respectively, Claimant's filed Claim and the State's filed Answer. Claimant submitted into evidence 15 items; 12 photographs and 3 documents (Exs. 1-15). The State submitted into evidence five photographs (Exs. A-E). There were two witnesses: Claimant; and former Correction Officer (hereinafter, "CO") Richard Straub, the Fire and Safety Officer at Mount McGregor Correctional Facility (hereinafter, "Mt. McGregor"), who investigated Claimant's incident that is the subject of this Claim.

Claimant testified that she went to Mt. McGregor to visit an inmate on February 2, 2013. She stated that, after her visit, as she was walking back to her car in the parking lot, she crossed over a bridge (see Exs. 4, 5, 8, 11 [photo on right side of page], A, B, and E). Claimant testified that she fell because she tripped in a hole where a piece of blacktop was missing at a spot where a concrete walkway intersected with a blacktop walkway (see Exs. 9, 10, 11, and 12). She stated that she did not see the hole, because she was looking ahead. She said that three women were walking in front of her, heard her fall, and came back to assist her to her car. She was able to drive because the foot she injured was her left. She stopped at the officer shack at the gate and reported that she fell and injured her foot. She stated that the officers took photographs and completed an incident report. Claimant declined medical assistance, as she decided to return home to Massachusetts to obtain medical treatment at the Holyoke Medical Center Emergency Room (see Ex. 14). It was determined that Claimant suffered a non-displaced fracture of a bone in her left foot, and she was seen for follow-up treatment by medical professionals at New England Orthopedic Surgeons, Inc. (see Ex. 13). Claimant stated that she was "laid up" for 10 weeks because of the fractured foot and that her foot still goes numb at times, still, six years later. Claimant further testified that she went back to Mt. McGregor about three weeks after her fall, to take photographs of the area where she fell (see Exs. 9-12).

Defendant called retired CO Richard Straub to testify at trial. CO Straub testified that he worked at Mt. McGregor in February 2013, and was working the 7:00 a.m. to 3:00 p.m. shift on February 2, 2013, the date of Claimant's accident, and was serving as the Fire and Safety Officer at that time. He testified that he recalled Claimant's incident. He was called to the officer's station at the gate where Claimant reported her accident. He was called to fill out the incident report (Ex. 15, unnumbered p. 2, 17). The witness stated that Claimant reported that she slipped and fell on ice as she was crossing the bridge. CO Straub testified that he investigated the incident. He walked from the administration building to the parking lot and did not observe any snow or ice or any other hazardous condition (see id.; Exs. 4-8, A-B).

"[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 Killeen v State of New York, 66 NY2d 850, 851 [1985]; Muhammad v State of New York, 15 AD3d 807, 808 [3d Dept 2005]; 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 action, 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, 660-661 [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]). 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 [2008], 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]).

Finally, a claimant has the duty to use reasonable care to observe his or her surroundings and to see what is there to be seen, and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]; Martinez v State of New York, 225 AD2d 877, 878 [3d Dept 1996]).

The Court has considered all the evidence, including a review of the exhibits and listening to the witnesses testify, and observing their demeanor as they did so. Claimant provided earnest and straightforward testimony. The Court concludes that Defendant owed a duty to Claimant to maintain the walkway from the parking area to the visiting area in a reasonably safe condition. In order to prove that Defendant breached its duty to Ms. Emond, however, it is Claimant's burden also to prove that a dangerous condition existed and that the State had notice that the dangerous condition existed. Here, after her accident, Claimant reported that, while walking across the bridge, she slipped (see Ex. 15, unnumbered p. 2). In addition, CO Batty reported, in an interoffice memorandum to Sergeant Schmid, dated February 2, 2013, that Claimant stopped at the Access Point to Mt. McGregor and told him she "fell on the stairs" (Ex. 15, unnumbered p. 3). Based upon the photographs in evidence, Claimant must have been referring to the step down from the bridge to the walkway (see Exs. 4, 11, and A). Exhibit 13, medical notes from Claimant's February 5, 2013 appointment at New England Orthopedic Surgeons, Inc., state that Ms. Emond "fell awkwardly off a step on ice on [February 2, 2013]." However, at trial Claimant testified that she fell because a piece of the pavement was missing. Claimant testified that she was looking ahead as she walked and did not observe that the pavement was missing. No testimony was presented from any eyewitness to Claimant's accident to confirm what caused Claimant to fall, ice, broken pavement, or something else. Assuming, arguendo, that a dangerous condition existed, Claimant failed to establish that the State had notice that a dangerous condition existed. There is no evidence that Defendant created the condition that caused Claimant to fall. Likewise, there is no evidence that the State had actual or constructive notice of whatever condition caused Claimant to fall.

Accordingly, the Court determines that Claimant failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with her Claim and the Claim is dismissed. All 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.

August 12, 2019

Albany, New York


Judge of the Court of Claims