Claimant, who slipped and fell while ice skating at Defendant's facility failed to demonstrate that the skating surface was defective. Further, after allegedly noticing a defect in the ice herself assumed the risk of her actions by continuing to skate. Claim dismissed.
|Claimant short name:||WYZYKOWSKI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||BROWN CHIARI LLP
BY: ANGELO S. GAMBINO, ESQ.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: TAMARA B. CHRISTIE, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 30, 2020|
|See also (multicaptioned case)|
Claimant, Mary Wyzykowski, was ice skating at the State University of New York at Brockport (SUNY Brockport) Tuttle North ice arena (Tuttle) on November 9, 2013. Claimant states she fell and was injured due to the negligently maintained ice-skating surface. I held a liability only trial on December 3-4, 2019 and considered post trial briefs and sur-reply briefs thereafter.FACTS
Claimant, an experienced recreational skater since childhood, visited Tuttle on November 9, 2013 as part of the SUNY Brockport Family Weekend. She and her husband intended to spend the day with their daughter, a SUNY Brockport student, then drive back to their home in Buffalo. Claimant testified the family would skate at the open skate event at Tuttle then go out for dinner. Claimant brought her own figure skates. She stated she skated once around the boards, the perimeter of the rink, then once around the inside and described the ice as "soft in spots," "very choppy" and "very bumpy" (tr at 157-159)(1) . Claimant decided to stop skating because of the conditions, but wanted to get a picture of her family on the ice before she did. The three of them proceeded to the center of the rink, took a picture and then Claimant proceeded to skate off the ice. She fell and injured herself as she was skating across the rink to the exit, when the toe pick on her right skate caught the ice.
Claimant testified she has skated recreationally on indoor and outdoor rinks and on frozen ponds. She taught her children and her nieces and nephews to skate, too. She admits that a skating surface can "deteriorate after usage" and "become less than optimal" (tr at 154). Claimant acknowledges less than optimal ice conditions, like soft, choppy, bumpy ice, can cause a skater to fall.
Tod Brudz was a part-time seasonal employee at SUNY Brockport who worked 15-20 hours per week from September to March as an Ice Rink Supervisor at Tuttle. He also worked a full time job from 9:00 a.m. to 5:00 p.m. Monday through Friday, so he worked at Tuttle nights and weekends. His duties included supervising student workers, maintaining safety in the building and making sure the ice surface was in good condition. He was on duty the day Claimant fell.
Tuttle has two Zamboni machines used to condition the ice surface. Mr. Brudz testified the newer machine was the primary one and it was used all the time. The older machine was considered the back up machine. The Ice Rink Supervisor on duty was responsible for deciding which machine to use. If there were problems with the primary Zamboni, Mr. Brudz would call his supervisor, the Ice Rink Manager, who would contact the college maintenance engineers to address the problem. Mr. Brudz was responsible for noting the problem on the Zamboni Log Sheet. Rink Supervisors and college maintenance engineers used the log sheet to communicate about the problems.
Mr. Brudz explained the function of the Zamboni is to shave the ice, collect the shavings (snow), then lay fresh water on the surface which is pushed by a squeegee to fill in ruts and move debris off the ice to create a smooth surface. Mr. Brudz testified regarding the mechanical operation. The sharp blade under the back end of the Zamboni shaves a thin layer off the top of the surface. That top layer becomes snow and the snow is moved by a horizontal auger onto a vertical auger which carries the snow up into a bin. The augers remove the snow from the ice. When the Zamboni leaves the ice, a small amount of snow and water are left on the ice at the threshold of the rink doors. He states he would use a shovel and a squeegee to clean it up before closing the rink doors.
Mr. Brudz testified that two experienced Tuttle Zamboni operators trained him to use the machine and he received no other training or education on the operation of the Zamboni. He had no prior experience operating a Zamboni prior to his job as an Ice Rink Supervisor.
Mr. Brudz identified Exhibit A as the Zamboni Log Sheet. Mr. Brudz was working on November 9, 2013 from 7:00 a.m. to 3:00 p.m. (Exhibit B). He had a rink schedule so he knew what groups were using the ice during his shift (Exhibit 3). The Zamboni Log Sheet was a record of the Zamboni runs he made during his shift. He was required to indicate the time he started his run, the operations performed and the hours as indicated on the Zamboni gauge. On the date of the fall, youth hockey had the ice from 8:00 a.m. until 2:10 p.m. The next event was the public skate, or open skate, from 3:00 p.m. until 5:00 p.m. (Exhibit 3). Mr. Brudz testified he opened the facility and prepared for the 8:00 a.m. practice. I note there's an entry in Exhibit A under November 8, 2013 indicating a Zamboni run started at 11:50 p.m., at the end of the last event the day before, a college student only open skate from 10:00 p.m. to 11:45 p.m. (Exhibit 3). Thus, the ice surface was ready for practice the next morning. Mr. Brudz did not start the first Zamboni run of his shift until 9:50 a.m. on November 9, 2013.
Mr. Brudz indicated on the log that he made a wet/wash run. He testified that meant he used both tanks of water on the Zamboni; the tank with the room temperature water that sprays the snow collecting between the blade and the conditioner to wash the ice and the hot water applied after to fill in the cracks and create a smooth surface. A dry run is just picking up snow after heavy use and that is typically followed by a wet/wash run. The hours indicated the number of hours the Zamboni has been in use and the comment section on the log is for drivers and maintenance engineers to leave information. The driver then places his initials on what he wrote. The Zamboni Log Sheet is kept in a three-ring binder in the garage at Tuttle. Mr. Brudz testified he would review the log at the start of his shift to see what work had been done and if any problems had occurred.
Exhibit A indicates the Zamboni experienced a frozen auger on November 6, 2013 at 466.1, on November 7, 2013 at 467.6 and on November 9, 2013 at 468.9. Mr. Brudz explained that a frozen auger is an unusual occurrence. In his experience, an auger freezes gradually and it can also unfreeze itself. Drivers are trained to drive the Zamboni off the ice, clean the augers off with hot water and then return to the ice to finish the run and address spots as needed. While operating the Zamboni, Mr. Brudz would do a visual check to see if an auger was freezing. He could also tell if the auger was freezing by the sound a Zamboni makes.
If the auger happened to "unfreeze" while on a run, he normally would not leave the ice nor note that fact on the Zamboni Log Sheet. The auger froze at his 11:10 a.m. run on the day of the fall. He left the ice, washed out the augers and went back out onto the ice surface. He did not do a personal inspection at ice level, nor did he check the ice temperature or do a dry run after the auger froze. Mr. Brudz testified that he ran the Zamboni two more times without incident prior to the 3:00 p.m. open skate, at 1:10 p.m. and at 2:45 p.m. He noted that the ice condition was very good after each of those runs, but admitted he did not personally inspect the ice on foot by walking around it.
James Stedman is also a Rink Supervisor working part-time at Tuttle. He has regular shifts on Tuesdays and Wednesdays from 5:30 p.m. to 9:30 p.m. and shifts on Saturday and Sundays at various times. He described how he was trained to maintain the ice. He would fill both the hot water and cold water tanks on the Zamboni then drive on the ice starting with the outside moving to the center. He would leave the ice, dump the snow collected and check for issues on the ice surface. Mr. Stedman testified he also listens for possible problems while operating the Zamboni in the same way you can tell if your car or lawn mower is having difficulty. He also checks the condition of the ice as he is operating the Zamboni, looking for problems.
Mr. Stedman testified the augers are important because they pick up the snow created by the blade cutting the ice surface. They also pick up ice chips, water and sometimes a bug or a hockey puck. He explained a Zamboni could be run as many as 15 times on a single day depending on scheduled events. For example, the Zamboni would cut the ice between periods at a college hockey game where the ice gets beat up relatively quickly. During a youth hockey practice, the Zamboni will cut the ice every hour, because young hockey players are not as rough on the ice. For a two hour open skate, the ice could be cut once in the beginning and again at the end. The number of times the Zamboni is used and how deep the blade will cut depends on how the ice was used. Setting the blade height is the operator's decision.
Mr. Stedman explained he would set the blade lower and shave more ice off the surface after hard use, for example, when college hockey players skate. This results in the conditioner (where the blade and horizontal auger are housed) collecting a lot of snow. The cold water wash used to help push the snow into the horizontal auger gets absorbed and the auger operates smoothly. If the Zamboni cuts the ice after a light use and the blade is set higher, less snow is generated and the cold water wash used to push a smaller amount of snow is more liquid and more likely to freeze the auger.
When an auger freezes, it is similar to when a lawn mower or snowblower gets clogged. When an auger stops working, the snow spills out of the sides of the conditioner. Typically, the Zamboni operator would drive off the ice, wash the machine out then return to the ice to finish the job. No one is allowed on the ice until the Zamboni run is complete and the rink doors are closed. Mr. Stedman also characterized a frozen auger as a rare occurrence and most often operator error. If the auger froze on a consistent basis and/or would not operate properly after it was washed out, then it was likely a mechanical problem the maintenance engineers needed to address.
Mr. Stedman worked the 3:00 p.m. to 11:00 p.m. shift the day Claimant fell (Exhibit B). He testified he typically arrived 10 to 15 minutes before a shift so he could talk to the Rink Supervisor clocking out to see how operations were going. Mr. Stedman's first event that day was a public skate (Exhibit 3). Tuttle has rental skates available, they play music and provide skate guards who are student employees skating around to help and to monitor behavior. On that particular day, he does not recall receiving any complaints about the ice surface during the open skate.
Mr. Stedman's first Zamboni run was at 4:45 p.m. when the public skate ended (Exhibit A). Although he had no personal recollection at the time about a conversation with Mr. Brudz regarding a frozen auger, he would have read about it when he reviewed the Zamboni Log Sheet at the start of his shift. He testified he routinely reviewed the Zamboni Log Sheet back to his last shift so he was aware which Zamboni was used, how it was running and whether or not any maintenance was performed. So at the start of his November 9, 2013 shift, he would have noted that the auger froze November 6, 2013 at 11:20 p.m. and again on November 7, 2013 at midnight. He also would have seen that it froze on the morning of Claimant's accident while Mr. Brudz was operating it at 11:10 a.m. In fact, it froze again on November 10, 2013 at 12:30 p.m. while he was the operator.
Mr. Stedman also addressed the Rink Supervisor's responsibility for filling out accident reports when someone was injured in the rink. He filled out the accident report on November 9, 2013 for Claimant's fall (Exhibit 2). Mr. Stedman recalled the fall and stated it occurred at approximately 4:00 p.m. A student rink guard alerted him. He reported he'd heard that Claimant fell on the ice surface and hurt her shoulder. The student rink guard witnessed the fall and, with the help of Claimant's husband and daughter, moved Claimant off the ice to a bench where Mr. Stedman met her. Mr. Stedman offered to call an ambulance but Claimant wanted the location of an urgent care facility. Mr. Stedman made no comment about the quality of the ice rink surface on the accident report.
Kevin Dellapenta worked for the Buffalo Parks Department from 1988 to 1995 where he first started operating a Zamboni at a local ice rink. He began working for the Buffalo Sabres organization in 1995 as an Ice Maintenance/Zamboni Driver. He left their employ in 2016. He operated the Zamboni for all events at the Sabres home arena in the City of Buffalo. He estimates he has cut ice with a Zamboni more than a thousand times in his career.
Mr. Dellapenta explained the inner workings of the Zamboni in greater detail, but essentially confirmed what Mr. Brudz and Mr. Stedman explained and that was that the augers move the snow produced by the blade off the ice. He last operated and worked on a Zamboni in the Spring of 2016.
Mr. Dellapenta described a frozen auger as a rare occurrence but that, when it did happen, it can leave the snow on the ice surface, causing the ice underneath it to get soft and ripple, making the ice uneven. Mr. Dellapenta was shown Exhibit A and told the auger froze three times prior to Claimant's fall. He testified it was likely that the ball bearings were not working properly, causing a problem with the augers' ability to spin. The operators would have heard or felt a grinding if the ball bearings were defective or worn down. If it had happened to him, he would have driven the Zamboni off the ice and then manually removed the snow left on the ice surface by the machine with an ice chopper and/or shovel as quickly as possible because it will freeze on the ice surface. He then would have used another Zamboni, given the number of times the auger froze.
Mr. Dellapenta admits he has no first-hand knowledge regarding the Zamboni operated that day at Tuttle. Nor is he personally familiar with Tuttle procedures. It was his assumption that the ball bearings were creating the problem with the auger, which could leave snow and/or slush on the ice. Mr. Dellapenta was not aware that the Ice Rink Supervisor never received a complaint about the condition of the ice during the open skate on November 9, 2013.
Heath Moyer worked for SUNY Brockport from 2010 to 2014 as a Refrigeration Mechanic Grade 12. At the time of trial, he had been employed at Johnson Controls since 2016 in service, repair and sales of control systems for heating and air-conditioning equipment (Exhibit F).
As a Refrigeration Mechanic Grade 12, Mr. Moyer was responsible for all the cooling facilities on campus, as well as ice rink maintenance and Zamboni maintenance. He worked 7:00 a.m. to 3:00 p.m. Monday through Friday and on weekends when the college hockey team was playing at Tuttle. The majority of his duties in the winter were ice rink related because the cooling facilities related to air conditioning across the campus were not being used. He testified he was responsible for installing and painting the ice as well as maintaining it. He resurfaced the ice every morning during the week, cut the edges of the ice next to the boards and dry cut the surface on occasion to get the deeper divots out. He followed this work with a Zamboni run for a hot water wash to smooth the ice surface.
He was also responsible for keeping the Zamboni operating. He would monitor and change batteries, grease and change ball bearings and change the blades. In addition to operating the Zamboni, he would train students and other part-time employees how to operate the Zamboni as well. He is acquainted with both Mr. Stedman and Mr. Brudz. Mr. Moyer also testified he often worked the hockey games with one or both men. He was present to take care of the boards as well as clean out the Zamboni augers between runs at the end of each period.
The ice is generally kept at 19 degrees Fahrenheit during the hockey season, although it is possible to alter the temperature. If the ice is colder, it is a harder surface which chips easier. Hockey coaches prefer it colder and harder because the players can skate faster on it. If the ice is warmer, it chips less easily, but it is slower skating. Tuttle tries to keep the ice at a consistent 19 degree temperature during ice hockey season. The open skate Claimant attended was during hockey season.
Mr. Moyer testified he was familiar with the Zamboni Log Sheet because it was how the daytime and the nighttime staff communicated regarding the operation of the Zamboni. On November 7, 2013 at 2:30 p.m., Mr. Moyer indicated he worked on the Zamboni. He changed the blade, which is done every week, and greased all the moving parts on the Zamboni, including the ball bearings and lifting mechanisms.
Mr. Moyer also testified that when an auger froze on the Zamboni used on November 9, 2013, it was a normal occurrence. To fix it, the operator would shut the water off, drive it off the ice, and clean off the blades and any ice built up underneath. The blade is still on the ice when the operator drives the Zamboni off after turning off the water, so any snow or debris would be pulled off the ice with it. He stated it was unlikely that snow would spill out of the sides of the machine unless the operator was making a very deep cut. In the event some snow was left on the surface after an auger froze, it would be the consistency of slush, and even if it froze, the Zamboni would pick it up and smooth it out when the operator completed the run. In his opinion, because there were two Zamboni runs after the auger froze at 11:10 a.m. the day of Claimant's fall, the ice would have been debris free. While there might have been imperfections because people were skating, the ice would not have been poor quality.MOTION FOR ADVERSE INFERENCE
Claimant requested that "[a]ny and all maintenance records for the Zamboni(s) in use in November 2013 from date of purchase through the present . . ." in her June 8, 2015 Notice to Produce (Court Exhibit 1). In response, Defendant provided the Zamboni Log Sheet, Exhibit A, a document which Mr. Brudz, Mr. Stedman and Mr. Moyer testified was a record of Zamboni use, problems experienced and the engineers' responses. Mr. Moyer, the engineer at that time, specifically stated at trial that Zamboni modifications made by engineers would have been noted in the log (tr at 200-201). Mr. Moyer also testified he had to ask another department to order any Zamboni parts needed and that he believed that department would have those records (tr at 202). Mr. Stedman informed Claimant that the engineers were responsible for Zamboni maintenance at his deposition on March 8, 2016 (Exhibit 6, p. 25, lines 19-25). Mr. Brudz said the same thing at his deposition on March 8, 2016 (Exhibit 7, p. 11, line 15 and p. 31). Claimant requested maintenance records, not parts requisitioned. I see no proof of intentionally misleading conduct nor destruction of evidence on Defendant's part. Defendant's motion for an adverse inference is denied.DECISION
While the risk of falling while ice skating is inherent in the sport, skating on negligently maintained ice is not (Wyzykowski v State of New York, 162 AD3d 1705, 1706 [4th Dept 2018]).
Claimant's expert had significant experience operating and maintaining Zamboni machines. Mr. Dellapenta conceded he had not examined the Zamboni used at Tuttle. He opined that a frozen auger indicated a mechanical problem that could not be solved by washing out the undercarriage of the Zamboni. In his estimation, continuing to use a Zamboni when the augers intermittently freeze creates an unsafe skating surface because the augers are not picking up all the snow efficiently, which means snow gets pushed out the sides of the Zamboni, freezing on the surface which creates soft, bumpy ice.
Defendant's expert was a former SUNY Brockport employee responsible for operating and maintaining the Zamboni machines in Tuttle, specifically the one used the day Claimant fell. He opined a frozen auger event did not indicate a mechanical error nor an unusual occurrence. The augers freeze when the Zamboni is used a lot and/or it is not cleaned off between runs. He did agree that experiencing a frozen auger four out of five days was unusual.
It is undisputed that the Zamboni's augers froze November 6, 7 and 9, 2013. According to the Zamboni Log Sheet, the augers froze on the last run of the night on November 6, 2013. Mr. Moyer performed weekly maintenance on the machine the next day, including a blade change and grease application, then running the machine for the first time since it froze the night before. He performed a dry cut then a wet/wash run. The auger froze again on November 7, 2013, on the last run of the day. The Zamboni operated without a problem until November 9, 2013 at 11:10 a.m. Two more uneventful cuts occurred prior to the open skate when Claimant fell (Exhibit A). Claimant's position was that, even though the Zamboni had two uneventful cuts prior to her fall, the operator was using a defective machine which created a defective skating surface. Defendant stated that the operator was not using a defective machine and because the augers did not freeze, it cut and cleaned the ice as it was meant to, leaving the skating surface in good condition.
I find that the Zamboni used at Tuttle on November 9, 2013 was not in optimal condition. Both Mr. Brudz and Mr. Stedman stated that frozen augers were a rare occurrence and when they did freeze, snow would be left on the ice. They also testified, as did Mr. Moyer, that a frozen auger was an event that was to be noted on the Zamboni Log Sheet so a maintenance engineer would know what had transpired. Mr. Moyer was also concerned that the augers froze four times in five days according to the Zamboni Log Sheet and he found that to be unusual and something for the maintenance engineers to consider. Finally, Mr. Moyer recalled, specifically, that the augers and ball bearings on the Zamboni were replaced in 2013. Whether this occurred before or after Claimant's fall is of no matter. It indicates to me that frozen augers can sometimes be a mechanical issue and not just operator error. However, the fact that the Zamboni malfunctioned does not necessarily mean that the skating surface was defective.
It is well established that "[t]he State - just as any other party . . . is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards
reasonably to be foreseen, only for risks reasonably to be perceived" (Flaherty v State of New York, 296 NY 342, 346 ) and with respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506 ). However, the State is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851 ; Melvin v State of New York, 101 AD3d 1654 [4th Dept 2012]). To establish a prima facie case of negligence, the plaintiff must "demonstrate either that the defendants created the dangerous or defective condition which caused the accident, or that they had actual or constructive notice of the condition" (Dima v Breslin Realty, 240 AD2d 359, 360 [2d Dept 1997] (citing Gordon v American Museum of Natural History, 67 NY2d 836).
The weight of the evidence demonstrates that while a frozen auger would cause snow to be left on the skating surface, Mr. Brudz, Mr. Stedman and Mr. Moyer testified that a Zamboni operator in Tuttle would not have left snow or debris on the ice. It was undisputed that a Zamboni operator could see the ice from his seat on the Zamboni and the Zamboni operator would go back out on the ice and not only finish the cut, but go over any spots on the ice that needed attention. It is also undisputed that Mr. Brudz had two uneventful Zamboni runs prior to the open skate. Claimant testified there were other skaters on the ice and, based upon her experience, other skaters can leave ruts and chips on an ice surface making for a less than optimal skating experience. The toe of Claimant's skate caught in the ice and she fell and injured herself. There is no evidence to suggest that the ice was in poor condition that day; there are no other accident reports or complaints about skating conditions. The skating surface did not constitute a defective condition and the case is dismissed. It can also be dismissed on the grounds of primary assumption of the risk.
"As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues" (Custodi v Town of Amherst, 20 NY3d 83, 89 ), including where the risk involves less than optimal conditions (Bukowski v Clarkson Univ., 19 NY3d 353 ). Claimant participated in a SUNY Brockport sponsored recreational activity at a designated skating venue, Tuttle. Further, Claimant by her own admission was a proficient enough skater to survey the skating surface and immediately notice the conditions and continued to skate despite those conditions so she could take a picture with her family at center ice. Inasmuch as Claimant participated in a sport where the risk of falling is inherent and she fully appreciated that risk, but skated anyway, her claim is barred and, therefore, dismissed (Morgan v State of New York, 90 NY2d 471 ).
Any motions not decided or reserved are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
November 30, 2020
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims
1. References to the trial transcript will be referred to as (tr at page).