New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK #2000-011-108, Claim No. 99334


Synopsis


Claimant received award for slip and fall on snow and ice at Washington Correctional Facility.

Case Information

UID:
2000-011-108
Claimant(s):
CARLOS GONZALEZ
Claimant short name:
GONZALEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99334
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
The Proskin Law Firm(Arnold W. Proskin, Esq., of counsel)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Eileen E. Bryant, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
November 1, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
On the evening of November 17, 1997, Claimant slipped on the sidewalk located in the front of the H-Block Administration Building at the Washington Correctional Facility. Claimant alleges that he slipped on an accumulation of snow and ice, and that the snow and ice had built up on the sidewalk in front of the Administration Building as the result of a snowstorm that occurred on November 14
and 15, 1997. He alleges that the State was negligent in maintaining the sidewalk and is liable for the injuries he suffered.
The State as the owner of the Washington Correctional Facility had a duty to maintain its premises in a reasonably safe condition in view of all circumstances including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk (
Preston v State of New York, 59 NY2d 997).
Claimant testified that on November 17, 1997, after being notified by Correction Officer Stark, he left his dorm to go to the H-Block Administration Building to pick up photocopies he ordered. Claimant testified that it was not snowing at that time nor had it snowed at all that day. However, Claimant testified that there was four to six inches, maybe more, all over the facility grounds at that time and proof was introduced at trial indicating that approximately 12 inches of snow fell in the area between November 14
and 15, 1997 (Exhibit 1). Claimant proceeded to the Administration Building where he picked up his photocopies and left. As he walked in front of the building on the sidewalk, he slipped, but caught himself and did not fall. Claimant testified that he immediately felt pain in his foot and was assisted by another inmate back to his dorm where he then told Officer Stark what had happened. According to Claimant, Officer Stark gave him Tylenol for the pain and placed his name on the sick call roster. Claimant went to the infirmary the next morning to seek treatment.
Jeffrey Huntington, the Plant Superintendent at the Washington Correctional Facility, testified that the protocol for snow and ice removal at the facility involved two components. The first component required civilian staff members to remove snow from roadways, parking lots and any other area where machinery needed to be used. The second component involves inmate work crews in removing snow from, and sanding, the facility's sidewalks including the sidewalk in front of the H-Block Administration Building where Claimant slipped.

According to Mr. Huntington, during off hours, evenings, nights and weekends, the watch commander determines whether civilian and inmate crews are utilized for snow and ice removal. The area in front of the H-Block Administration Building, according to Mr. Huntington, is a high priority area because of the heavy foot traffic there. Mr. Huntington testified that he recalled a snowstorm on November 14
and 15, 1997, but no civilian employees were called in for snow and ice removal. He testified that he could confirm this with his records. However, snow removal in the area where Claimant slipped would be done by the inside utility gang which is composed of inmates supervised by a correction officer. No logs are kept of the work done by this crew.
Mr. Huntington testified that, as Plant Supervisor, he is required to regularly inspect the premises of Washington Correctional Facility to determine if an unreasonable amount of snow and ice has accumulated. He testified that he received no notice of any snow or icy conditions at the Administration Building on November 17, 1997, the day of Claimant's accident.

Both Claimant and Defendant agree that there was a snowstorm on November 14
and 15, 1997. Claimant testified that there was snow all over the grounds of the facility, including the area where he fell, on November 17, 1997 though it had not snowed that day. He also testified that he slipped on an accumulation of snow as he walked along the sidewalk that evening and injured his foot. Given that a significant amount of snow had fallen two to three days earlier and in the absence of proof that some effort was made to remove the accumulation from this high traffic sidewalk, Defendant is liable for any injuries Claimant suffered as a result of the slip.
Claimant testified that he did not have any problems with his right foot prior to this incident and that he felt pain in that foot immediately after he slipped. After the slip, he returned to his dorm where he reported to Officer Stark what had happened. The next morning
Claimant went to the Washington Correctional Facility infirmary where he was examined and given crutches. No x-rays of Claimant's foot were taken at this time. On November 19, 1997, Claimant was bused to Comstock Correctional Facility. X-rays of his right foot revealed comminuted, oblique fractures involving the fourth and fifth metatarsal and slight lateral displacement of the distal portion of the fourth metatarsal in relation to the proximal portion. Claimant's ambulatory health records from the various facilities where he has been incarcerated were received in evidence (Claimant's 4). Claimant did not produce any additional medical proof regarding his injury.
Claimant returned to the Washington Correctional Facility and on November 21
, 1997, he was taken to Coxsackie Correctional Facility where a cast that extended up to the knee was placed on his right foot. Claimant returned to the Washington Correctional Facility and was placed in the infirmary for a week. The cast was removed from Claimant's foot on December 30th, 1997. He was then given a special brace to wear on his foot to further stabilize the bones and spent a couple more days in the infirmary at the Washington Correctional Facility. The ambulatory health records of Claimant indicate that he continued to complain of pain in his right foot up to April, 1998.
In April 1998, Claimant tripped and fell while walking to the bathroom and injured his right foot again. However, there is no competent proof that the injury of April 1998 was causally related to the initial injury to the right foot. In addition, no competent expert medical proof was offered to establish that the injury suffered in November 1997 will have permanent consequences for Claimant.

For his past pain and suffering, Claimant is awarded $12,500.

In an order filed June 19, 2000, the court directed the superintendent of Franklin Correctional Facility, the correctional facility at which Claimant was then incarcerated, to produce Claimant in Albany for the trial of this action. The order also provided that in the event Claimant received an award in this claim, the cost of producing him for the trial would be paid out of the judgment. In accordance with the order, the Department of Correctional Services is directed to provide to the court within twenty days of the filing of this decision, an affidavit by a responsible and knowledgeable employee setting forth the costs incurred in producing the Claimant at the trial of this claim. The affidavit should also be served on the attorney for Claimant who will have until the thirtieth day after filing of the decision to provide a response. In the event that the affidavit setting forth the costs is not provided to the court and the attorney within the specified twenty days, the right to recover such costs will be deemed waived. Entry of judgment is stayed pending resolution of this issue.


November 1, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims