Trial decision. Claimant alleges that she tripped and fell on snow and ice on the boardwalk at Jones Beach State Park.
|Claimant(s):||MARIA D. GONCALVES|
|Claimant short name:||GONCALVES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Siler and Ingber, LLP
By: Christopher Longman, Esq.
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Antonella Papaleo and Robert Morelli, Assistant Attorneys General
|Third-party defendant's attorney:|
|Signature date:||May 29, 2019|
|See also (multicaptioned case)|
A bifurcated trial concerning the issue of liability only was held in this matter. The subject claim arose on January 15, 2017 at approximately 11:00 a.m. when claimant, Maria Goncalves, slipped and fell on ice located on the boardwalk at Jones Beach State Park.
Cesario Goncalves, claimant's husband, testified that on Sunday, January 15, 2017, he and his wife visited Jones Beach State Park to walk on the boardwalk. He described the weather as beautiful and sunny. He explained that it had snowed the prior evening, however, the parking lot and walkway to the boardwalk at Jones Beach were cleared of snow. He testified that the center of the boardwalk was also cleared of snow. There was enough cleared space for he and his wife to walk side by side, with his wife walking to his right. He testified that they walked for a little over an hour without incident. He stated that while they were walking in a westerly direction near the east baseball fields, his wife heard a noise behind them. She turned to look back and saw a small vehicle coming in their direction on the boardwalk. She stepped to the side to let the vehicle pass. She then she slipped and fell on the boardwalk. Mr. Goncalves testified that if they did not move out of the way of the vehicle it would have hit them. He explained that he tried to prevent his wife's fall but could not. He observed ice on the boardwalk and what appeared to be tire tracks in the ice in the area where his wife fell. This area was identified within the shadowed area adjacent to a shelter roof in photographs presented during the trial (Def. Ex. D). Mr. Goncalves testified that the vehicle did not stop when claimant fell and continued to drive along the boardwalk. After claimant's fall, a woman stopped and called 911 for them. A male passerby also came to their assistance and moved claimant. The police and an ambulance arrived shortly thereafter.
Claimant testified that she and her husband frequently walked on the Jones Beach boardwalk. She described the conditions on January 15, 2017 as sunny and cold with some snow on the shoulders of the roadways. She explained that the boardwalk had a clear path in its center with snow and ice on the sides on the date of her accident. She stated that the cleared area of the boardwalk was wide enough to accommodate her and her husband walking side by side. She also testified that they walked for over an hour without incident and then at approximately 11:00 am she heard a noise behind her. She looked back and saw a vehicle she described as a small jeep coming up behind them. She further testified that she and her husband were forced to move to their right from the clear area into the icy area to get out of the path of the moving vehicle. She explained that when she first saw the vehicle it was 5-7 feet behind them. She stated that there was insufficient space to permit her to wait in the cleared path area of the boardwalk for the vehicle to safely pass them. She testified that once she moved to the right, she slipped and fell on the icy portion of the boardwalk which had tire marks in the ice. She stated that the location where she was sitting in the photographs in evidence was not the exact location where she fell. She explained that her husband moved her to that location after she fell with the help of a Good Samaritan. She testified that the police officer and the emergency medical technician arrived after she was moved.
Jocelyn Smith, an Assistant Supervisor for New York State Office of Parks, Recreation and Historic Preservation testified that she was the emergency medical technician that responded to claimant's accident. She explained that she was notified of a patron accident by New York State Park Police and responded to the scene. When she arrived, she observed claimant seated in the snow with her left leg extended. After assessing and attending to claimant, Ms. Smith stayed with claimant until an ambulance arrived. Ms. Smith testified that claimant informed her that she had fallen on snow and ice. Ms. Smith filled out an incident report and noted that the location of the incident was icy. Ms. Smith noted in her report that the apparent cause of claimant's fall was an icy boardwalk. She reported that the temperature at the time was 35 degrees. There was no mention of a vehicle in her report. She testified that had claimant mentioned a vehicle to her she would have included it in her report.
Bridgette Fiorillo, a patron on the Jones Beach boardwalk on the day of the accident testified at the trial She stated that on January 15, 2017 she was running on the boardwalk at the time of claimant's accident. She described the boardwalk that day as being mostly cleared in the center with a "little bit" of snow patches and some ice patches throughout the boardwalk. She explained that the center of the boardwalk was the clearest part, although while running she did have to avoid some snow patches. She also explained that there was snow and ice piled to the sides of the boardwalk. She was running on the boardwalk for approximately one and a half hours prior to seeing claimant on the ground. She explained that when she reached the area of the boardwalk near the baseball fields, she noticed a claimant on the ground and a gentleman unsuccessfully trying to help claimant stand. She observed claimant in a lot of pain and unable to stand up. She testified that claimant and her husband were by the light pole and the railing as depicted in the photograph marked as Defendant's Exhibit B when she came upon them. She asked them if she could help and she contacted the Parks Department for assistance which came within a few minutes. She testified that she waited with claimant and her husband until help arrived. She stated that a small golf cart like vehicle came from the west while the EMS person came in a truck. Ms. Fiorillo also testified that she ran the entire length of the boardwalk prior to claimant's accident and did not see any vehicles on the boardwalk during that time. She also did not recall seeing claimant and her husband during her run.
Eric Hall, a New York State Park Police Officer at the time of claimant's accident testified that he responded to the accident location after receiving a call about a patron who fell. When he arrived, he assessed no immediate danger and observed claimant on the ground. He explained that he observed claimant to be in pain and that her husband was standing behind her. He testified that he asked claimant to describe what had occurred and that she told him that she had fallen on the ice. Officer Hall recorded claimant's description of the accident in his report.
Forrest Shaw, a New York State Parks Supervisor working at Jones Beach State Park, testified that on January 15, 2017 he was assigned to drive a Kubota with a brush attachment to clear the boardwalk of snow and ice. He explained that the Kubota is approximately 4 feet wide and has lights that go on automatically when it is turned on. It has an orange dome light that is turned on manually. He stated that the Kubota's top speed is 25 miles per hour but when the brush is in use the Kubota's speed is reduced to 10 miles per hour. Mr. Shaw explained that the Kubota makes a loud sound like a car motor.
Mr. Shaw testified that on the day of the accident he arrived to work at 7:40 a.m. and that there was some snow on the boardwalk at that time. He began clearing the snow and cleared a path approximately 6 feet wide in the center of the boardwalk. He cleared the path by driving up and down the boardwalk in the Kubota and brushing away the snow. Mr. Shaw stated that he continued to clear the boardwalk until he took his break at the East Bathhouse sometime between 10:30 a.m. and 11:00 a.m. At that time, he believed that there was enough space for 2 to 3 people to walk side by side on the boardwalk. Mr. Shaw estimated that he made 3 to 4 complete loops on the boardwalk before he took his break. He described a loop as traveling the full boardwalk from the eastern most portion to the western most portion and then back east again to the beginning. He explained that salt, sand and ice melt are never used on the boardwalk because those materials negatively affect the boardwalk. He stated that he was trained to clear the middle of the boardwalk first and then once the middle of the boardwalk is clear he was instructed to move to the sides of the boardwalk to widen the path. He could not recall whether he moved to the left of the boardwalk or the right of the boardwalk first on the date of the accident. Mr. Shaw testified that if came upon a patron while driving the Kubota, he would pull over to the side of the boardwalk, stop and permit the patron to pass. He stated that if he was coming up behind a patron he would take his time and wait for the patron to acknowledge him. He also testified that he did not come close to any pedestrians while he was clearing the boardwalk on the day of the accident.
Mr. Shaw further testified that after his break, a patron stopped him in front of the West Bathhouse and informed him that a woman had fallen down near the baseball field. Mr. Shaw then drove westbound to the area where claimant had fallen down, parked and asked her if she needed help. Mr. Shaw testified that this was the first time he saw claimant and her husband. Mr. Shaw explained that when he approached claimant the boardwalk was not slippery. He testified that claimant told him that she walked on the side with snow because it looked slippery on the other side of the boardwalk. Mr. Shaw testified that there were small sections of snow on the boardwalk and there was no ice on that portion of the boardwalk.
Vincent Medina, a Park Manager at Jones Beach State Park, testified that he was the Officer of the Day on January 15, 2017 and worked the 7:30 a.m. to 3:30 p.m. shift on that day. He stated that it had snowed the evening prior to claimant's accident but that the day of the accident was sunny. Mr. Medina explained that when he arrived at Jones Beach that morning, the parking lots and the paths to the boardwalk had been cleared by the overnight crew. He assigned Forrest Shaw to the Kubota with the brush to clear the boardwalk that morning. He stated that this was the only operational Kubota on January 15, 2017 as all the other Kubotas had been winterized and stored. Mr. Medina explained that they only use a Kubota to clear snow on the boardwalk because snowblower blades would damage the wood of the boardwalk. They also do not use salt on the boardwalk since salt would oxidize and destroy the screws as well as the ties used on the boardwalk. Mr. Medina further explained that sand is not used on the boardwalk because the sand used is not clean sand and would leave nicks on the boardwalk after the snow melted. He stated that the Kubota is approximately 10 feet long and 5 feet wide with a speed of approximately 5 mph. He testified that the noise from the Kubota is above a 85 decibel so it very loud.
Mr. Medina testified that on the date of claimant's accident he received a call about a patron who fell and arrived at the scene after the police, medics and Mr. Shaw. Mr. Medina stated that he did not speak with claimant. Mr. Medina testified at trial that he did not speak to the EMT on the scene but at his deposition Mr. Medina testified that he did speak to the EMT who informed him that claimant slipped on the icy surface from the shadow of the overhang. Mr. Medina observed claimant on the ground sitting in a slushy type of snow. He described the boardwalk as dry with slush in the shadowed areas. He saw no hazards or icy surfaces at the location of claimant's accident and stated that if he had seen any he would have taken corrective measures.
Mr. Medina also testified that he observed at least a dozen patrons on the boardwalk and received no complaints about the condition of the boardwalk that day.
Defendant has a duty to act as a reasonable person would in maintaining its premises in a reasonably safe condition (Basso v Miller, 40 NY2d 233 ; Preston v State of New York, 59 NY2d 997 ). However, the State "is not an insurer against every injury that might occur on its property" (Covington v State of New York, 54 AD3d 1137, 1137-1138 [3d Dept 2008]). Claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take appropriate remedial action (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ).
"To constitute constructive notice, the defect must be visible and apparent and it must exist for a sufficient length of time before the accident to permit the defendant an opportunity to discover and remedy it" (Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798 [2d Dept 2003]).
General awareness that snow and or ice may be present is legally insufficient to constitute notice of the particular condition that caused a person's injury (see Piacquadio v Recine Realty Corp., 84 NY2d 967 ; Atkins v State of New York, 123 AD3d 644 [2d Dept 2014]; Solazzo v New York City Tr. Auth., 6 NY3d 734 ; Kaplan v DePetro, 51 AD3d 730 [2d Dept 2008]). Claimant failed to establish that defendant had notice of the specific icy condition upon which claimant fell (Chavez v State of New York, 139 AD3d 994 [2d Dept 2016]; Atkins v State of New York, 123 AD3d 644 [2d Dept 2014]). Additionally, claimant failed to establish that defendant created the icy condition by merely brushing the snow aside to create a clear path in the middle of the boardwalk (id.; Quintanilla v State of New York, 94 AD3d 846 [2d Dept 2012]; Wohlars v Town of Islip, 71 AD3d 1007 [2d Dept 2010]; see also Espinal v Melville Snow Contrs., 98 NY2d 136 ). The failure, during snow removal, to remove all the snow or ice from a pathway or parking lot does not, without more, constitute negligence and does not constitute a creation of a hazardous condition (id.).
The evidence established that it had snowed the evening prior to claimant's accident and defendant responded to the weather conditions by having its overnight staff plow and clear the parking lots and pathways to the boardwalk. Defendant began clearing the boardwalk the following morning using a Kubota with a brush attachment and cleared the center of the boardwalk. The evidence established that there were some patches of ice and snow on the boardwalk. However, ice melt, sand and salt cannot be used on the boardwalk because to do so would damage the boardwalk. There were no other reported accidents the day of claimant's accident. Claimant contends that her slip and fall was due to her leaving the cleared portion of the boardwalk because the Kubota driver was approaching and they had to get out of the way. However, the credible evidence established that the Kubota was not behind claimant and her husband prior to her accident thus contradicting their reason for leaving the cleared portion of the boardwalk. In addition, the credible evidence established that it was unlikely that claimant was moved from the location of her slip and fall to the location where she was seated in the photographs in evidence. Regardless of the reason claimant and her husband left the cleared portion of the boardwalk, the evidence established that there was an ongoing snow removal operation from the snowstorm the previous evening and the boardwalk was reasonably safe for pedestrian traffic. Claimant has not established that defendant failed to exercise due care in maintaining the boardwalk. Thus, the Court finds that defendant acted reasonably under the circumstances and that liability cannot be imposed against defendant in this matter.
Therefore, for the foregoing reasons, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, her claim against defendant in this action. Accordingly, the claim is hereby dismissed in its entirety. Any motions upon which the Court has previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly.
May 29, 2019
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims