Claimant seeks damages for injuries she allegedly sustained on February 1,
1994 during her incarceration at Taconic Correctional Facility ("Taconic"), when
she slipped and fell on a snow covered ice patch in the yard.
The trial of this claim was bifurcated and this Decision pertains solely to the
issue of liability.
Claimant testified that, sometime around 9:00 or 10:30 a.m. on February 1, 1994,
it started to snow; she did not know when it stopped snowing. At approximately
11:15 a.m., after the class claimant was attending had ended, the inmates were
directed to return to their housing units by walking through the
Claimant was wearing sneakers as she proceeded on the eight foot wide paved
walkway. There were several inmates walking ahead of claimant on the walkway.
Claimant testified that she was looking ahead, and not down, as she walked.
Despite the snow, she walked at her normal pace. Claimant testified that there
was "a thin covering of snow" over the walkway
She testified that as she walked, her
right foot skidded and she fell backwards to the ground. As she lay on the
ground, she observed that she had fallen on a patch of ice which she described
as approximately four feet wide and almost the length of her body. Claimant
testified that she had not observed the ice before her fall because it was
covered by a thin layer of snow. On cross-examination, however, it was elicited
that her deposition testimony was that she had observed ice on the walkway
before her fall.
Sergeant Yarbrough of the Department of Correctional Services ("DOCS")
responded to claimant's accident and he reported that
claimant had slipped on a small patch of ice measuring approximately 40 by 24
inches (Ex. 6).
James Moncey, the maintenance supervisor at Taconic and employee for 21 years
with DOCS, testified on behalf of defendant. He explained that inmate utility
crews, under the supervision of a correction officer, addressed snow and ice
conditions at the facility by plowing, shoveling, sanding and salting. Moncey
stated that salt was ineffective to melt snow when the temperature was below 23
degrees. Moncey walked the facility area on his daily inspections. He noted
that barrels of salt and sand were located in front of all the buildings.
Correction Officer Michael Henley, an 18 year veteran of DOCS, responded to
claimant's accident scene and testified on behalf of defendant. Henley was
assigned to claimant's housing unit, which included the walkway where claimant
fell. He recalled that at approximately 8:00 a.m. on February 1, 1994, the
utility crew was applying either salt, sand, or both, to the walkway. Henley
testified that Correction Officer Rodriquez photographed the area of claimant's
fall (Ex. A).
The weather reports introduced into evidence reveal that at Westchester County
Airport there had been a trace of precipitation on February 1, 1994 between 9:30
a.m. and the time of claimant's accident and there had not been any previous
precipitation since January 28, 1994 (Ex. 9). The temperature was below
freezing on February 1, 1994 and the prior two days.
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). The State, however, 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
, 66 NY2d 850, 851). Negligence must be proven (see
, Mochen v
State of New York
, 57 AD2d 719) and the reasonable standard of care must be
applied with an appreciation of the problems caused by winter weather
, Pappo v State of New York
, 233 AD2d 379; Marcellus v
Littauer Hosp. Assn.
, 145 AD2d 680, 681). The mere failure to remove all
snow and ice from walkways does not constitute negligence (see
v City of New York
, 259 AD2d 319), unless it is shown that defendant's
efforts increased the hazard (see
, Reidy v EZE Equip. Co.
In the instant case, there was no evidence that defendant created the icy
condition or had actual or constructive notice of it (
, Rodriguez v Notre Dame Academy of Staten Island
[2d Dept, July 24, 2000]; Gustavsson v County of Westchester
, 264 AD2d
408). Correction Officer Henley testified that the walkway was treated at 8:00
a.m. and the maintenance supervisor walked the area on his daily inspection
, Condon v State of New York
, 193 AD2d 874 [claimant fell on
icy track; correction officer checked area daily; no evidence of notice or
abnormally dangerous condition]). Notably, a number of inmates used the walkway
prior to claimant's accident, without incident, and there were no complaints
regarding the walkway. Nor was there any proof that the surface was abnormally
dangerous or posed an unusual condition that differed significantly from the
condition of any other walkway in winter (see
, Saez v City of New
, 82 AD2d 782 [patches of snow and ice on sidewalk did not pose an
unusually dangerous condition]). Thus, merely because a thin layer of snow
remained and all the ice had not been removed from the walkway, does not
constitute negligence (see
, Gentile v Rotterdam Sq.
, 226 AD2d 973
[no negligence where a thin layer of snow remained and ice was not cleared from
sidewalk]). Claimant failed to establish that defendant negligently maintained
the walkway (see
, Smith v State of New York
, 260 AD2d 819;
Boettcher v State of New York
, 256 AD2d 882).
Finally, upon listening to the witnesses testify and observing their demeanor
as they did so, the Court finds that the testimony of
claimant was not worthy of belief. Claimant was not a cooperative witness and
was very evasive in her answers. Unlike defendant's witnesses, claimant was not
forthright in her testimony and the Court finds that claimant's account of the
alleged accident strains credulity.
Accordingly, defendant's motion to dismiss, upon which decision was reserved,
is hereby GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.