Claimant seeks damages for injuries he allegedly sustained when he slipped and
fell on ice at the Watertown Correctional Facility (Watertown). The trial of
this timely filed claim was bifurcated. This decision is limited to the issue
The accident occurred on March 6, 1997
at approximately 2:30-2:45 p.m. when Claimant was confined to Watertown as an
inmate. Claimant was the only person who witnessed it.
Claimant described his accident as follows. He was traveling from the
storehouse/mess hall building to the vocational building on an asphalt "walkway"
and was pushing a plastic supply cart that had two solid shelves. He wore work
boots with leather soles. The weather was sunny, but snow had fallen from the
night of March 5 until midday on March 6. This, according to Claimant, had left
the walkway he was using covered with snow.
Somewhere on his journey between the two buildings (Claimant never described
where), he suddenly slipped on a patch of ice that was hidden beneath the snow.
His legs flew out from under him and he was thrown into the air. He landed on
top of one of his legs and heard the sound of cracking bones.
He laid in the snow until two inmates working on a snow removal crew came to
his aid. They carried him to Post No. 5, where he remained until a snowplow
team came along. The plow team transported Claimant from Post No. 5 to the
Officer Ronald Zehr, a building, grounds and maintenance officer, was part of
the plow team that rescued Claimant. He made clear in his testimony that he
never saw Claimant fall and never asked Claimant where he had lost his balance.
On the date of the accident, he prepared a memorandum addressed to Lieutenant
Tedford (Exhibit 22), which said that he found Claimant near Post No. 5, but did
not identify where Claimant had fallen.
During a pretrial deposition, Officer Zehr made a sketch of the yard (Exhibit
25). It showed the mess hall in the northwestern quadrant and the vocational
building in the southeastern quadrant. Post No. 5 was at the extreme bottom
(southern) part of the drawing in the center part of the page. There was a
roadway which ran from east to west near the bottom part of the page. It passed
just north of Post No. 5 and just south of the vocational building. There were
two sidewalks that intersected the roadway on its northern side. Sidewalk One
ran straight down the page from north to south, along the eastern side of the
mess hall. It met the roadway directly across from Post No. 5, forming a "T"
intersection. Sidewalk Two branched off of Sidewalk One near the south side of
the mess hall and ran southwest to the roadway at a 45 degree angle.
It might appear from Officer Zehr's drawing that the most direct route for
Claimant to have taken was down Sidewalk One to the roadway. But the storehouse
was actually located at the rear of the mess hall building. Therefore, the most
direct route (and the one that Claimant may have followed) was down a paved
drive that ran from the storehouse to the roadway. This route is best shown on
Exhibit 4, which depicts the supply house, the driveway and the intersection of
Sidewalk Two with the roadway. However, the route that Claimant was traveling
was never established by the proof.
After consulting the building, grounds and maintenance logbook, Officer Zehr
testified that there had been one inch of new snow on the morning that preceded
Claimant's accident (
Exhibit 24 at 8). Like Claimant, he recalled that the
snowfall had stopped at noon. He remembered sending inmates assigned to his
department out to shovel facility sidewalks after the count was completed. In
his estimation, it might take three to four hours for the inmates to clear all
of the snow from the sidewalks. On this particular day, he believed that the
sidewalks and roadways were completely cleared and sanded before Claimant fell.
However, Officer Zehr could not recall at trial whether the roadway or sidewalk
he traversed to assist Claimant had snow or ice on it. Nor could he
specifically remember whether it had been sanded.
Officer Zehr listed a number of areas that required particular attention
because they were heavily traveled or could become quite slippery in the winter.
These received special attention from building, grounds and maintenance crews.
While Officer Zehr did not initially identify either of the sidewalks or the
roadway as critical areas, he later agreed that the roadway could be hazardous
between its intersection with Sidewalks One and Two because water and ice
sometimes accumulated there. He was never asked, and never stated, when such
accumulations had first happened or when he first became aware of them. But he
was clear that he did not receive any specific reports on the day in question
that there was a hazard in this area. He also denied ever seeing any
accumulations of sand near the area where Sidewalk Two crossed the
Correction Officer Leonard Robbins was a relief fire and safety officer. He
investigated Claimant's fall and prepared an accident report on March 7 after
speaking to Claimant. The report (Exhibit 23) stated that Claimant fell "by
Post #5... while walking on the sidewalk en route to the Vocational Bld."
Officer Robbins offered inconsistent testimony on the location of Claimant's
fall. On direct, he testified that Claimant fell in the area marked with an "x"
where Sidewalk Two meets the roadway. On cross, he testified that Claimant and
Lieutenant McCullogh told him that Claimant fell on the sidewalk that runs from
the mess hall to Post No. 5. He interpreted this to be Sidewalk One.
Officer Robbins agreed that he knew, prior to Claimant's accident, that water
could accumulate "in the spring" where Sidewalk Two met the roadway (
Exhibit 25 location A). He was also aware, prior to
Claimant's accident, that water would sometimes run down the road from the
vocational building and would accumulate and create "a problem" between the
intersections of Sidewalk One and Sidewalk Two with the roadway. However, sand
was always spread after inmates completed the snow removal. Over time, the
sand spread by the inmates clearing the sidewalks and by the crews clearing the
roadway had created an accumulation of sand in the area adjoining the
intersection of Sidewalk Two and the roadway (see,
Based solely upon his conversation with Claimant, Officer Robbins identified
the cause of Claimant's fall to be a "slippery, snow covered sidewalk."
Lieutenant Harold Tedford was the watch commander beginning at 3:00 p.m. on the
day of Claimant's accident. He reviewed the temperature readings recorded in
the watch commander's logs for the two-day period in question. According to the
logs, the temperature ranged between 24 and 32 degrees from the morning of March
5 through March 6 at 3:00 p.m.
The log also showed that the watch commander called two civilians in for
plowing duty at 4:30 a.m. on March 6 (Exhibit 16). Snow removal, Lieutenant
Tedford explained, was one of the watch commander's jobs. When it snowed at
night, the commander would instruct the officers to wake the building and
grounds crew inmates between 5:00 a.m. and 5:30 a.m. to clear the facility
walkways. It would usually take about 15 minutes for inmates to remove a
one-inch snowfall from the yard where Claimant's accident occurred. Sand would
be spread if conditions warranted.
As watch commander, it was Lieutenant Tedford's responsibility to prepare and
submit reports regarding Claimant's fall. On March 6, he prepared two such
reports: an Unusual Incident Report (Exhibit 20) and an internal incident
Memorandum (Exhibit 21). Both place the location of the fall at the
intersection of Sidewalk One and the roadway. The Unusual Incident Report,
which had to be filed in Albany, stated that Claimant was "returning to his
housing unit from his work location and slipped on the snow on the walk; where
the sidewalk from the mess hall meets the walk by 5 Post." The incident
memorandum, directed to the Superintendent of Security stated that Claimant fell
"on the walk near where the sidewalk by the mess hall meets the walk by 5 Post."
Despite the description of the location of the fall found in the memorandum and
reports, Lieutenant Tedford testified that he had no personal knowledge of where
Claimant fell. When he identified the location of the fall in these two
reports, he relied on Officer Zehr's
Lieutenant Tedford testified that water would run through the area where
Sidewalk Two met the roadway (
Exhibit 3), but he was not sure that water ever accumulated
there. He was never asked when he first noticed this water flow phenomenon. He
did not recall noticing any water or ice accumulation when he made his rounds on
the day in question, but he did not make his rounds until after Claimant fell.
He had never heard of an inmate falling in the area where Sidewalk Two met the
roadway prior to March 6, 1997. He acknowledged that one photograph (Exhibit
6), which was taken some time after the incident, seemed to show a dried up
puddle in the place where Sidewalk Two met the roadway. He believed that the
bare light brown area shown in many of the photographs of the intersection of
Sidewalk Two and the roadway resulted from pedestrians cutting the corner
between the sidewalk and the roadway. He agreed with Officer Zehr that the
light brown soil did not indicate an accumulation of
Nunzio Doldo is the plant superintendent at Watertown and is responsible for
the condition of most of the physical plant. He testified in deposition that he
did not know of anyone who had fallen in the vicinity of Post No. 5 and the
facility storehouse. He admitted, however, that he would not necessarily have
been notified of such an accident.
The standard of care that applies to the State in its capacity as a landowner
is the same standard of care that applies to private citizens who are landowners
Miller v State of New York
, 62 NY2d 506, 511; Preston v State of New
, 59 NY2d 997, 998), and it extends to the grounds of the State's
correctional facilities (see, e.g., Montross v State of New
, 219 AD2d 845; Bowers v State of New York
, 241 AD2d 760). The
State must act as a reasonable person in maintaining its property in a
reasonably safe condition in view of all the circumstances, including the
likelihood of injury to others, the seriousness of the injuries that might
result, and the burden of avoiding the risk (Miller v State of New York
at 513; Preston v State of New York
). 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 (Condon v State of New York
, 193 AD2d 874). The State is
responsible in the operations of its institutions only for hazards reasonably
foreseen and risks reasonably perceived (Flaherty v State of New York
296 NY 342, 346). Therefore, to impose liability upon the State as an owner of
property, a claimant must establish that a hazardous condition existed, that the
State either created the condition or had actual or constructive notice of it,
but failed to take reasonable steps to eliminate the hazard (Miller v City of
, 258 AD2d 947, 947-948).
These principles must be applied with an appreciation of the problems caused by
winter weather (
Pappo v State of New York
, 233 AD2d 379, 379-380; Goldman v State of
, 158 AD2d 845). Among other things, a party who slips and falls on
ice or snow must establish that the injury causing condition was dangerous and
different in character from conditions ordinarily and generally brought about by
winter weather in the given locality (Williams v City of New York
, 214 NY
259, 263-264; Schwabl v St. Augustine's Church
, 288 NY 554; VanSlyke v
New York Central R.R.
, 21 AD2d 147; Tirado v State of New York
Cl, Aug. 12, 1998 [Claim No. 96320], Bell, J.). Mere failure to remove all snow
and ice from walkways does not constitute negligence (Rector v City of New
, 259 AD2d 319, 320), unless it is shown that the hazard was increased
by what was done to remove the snow (Reidy v EZE Equipment Co.
, 234 AD2d
593, 594). Also, a landowner must be afforded a reasonable time after the
cessation of the storm or temperature fluctuations which created the hazardous
condition to take corrective actions (see, Downes v Equitable
Life Assurance Society of U.S.
, 209 AD2d 769; Boyko v Limowski
The evidence did not show that Defendant created the icy hazard through its
snow removal operations or other activities. Nor was there any proof that
Defendant knew about the existence of the icy patch before Claimant fell on it.
Therefore, Claimant may prevail only by proving that Defendant had constructive
notice of the condition. Ordinarily, this requires proof that the icy condition
was visible and apparent and that it existed for a sufficient period of time to
allow Defendant's personnel to discover the condition and remedy it (
see, Gordon v American Museum of Natural History
, 67 NY2d
836; Boyko v Limowski
; Byrd v Church of Christ
, 192 AD2d 967, 969).
Here, there is no description of the size or appearance of the icy patch and no
proof that it was visible and apparent. To the contrary, Claimant's testimony
suggests that it was concealed beneath the snow.
Nor am I persuaded that Claimant has proven that the ice patch was a recurring
condition. The proof regarding the location of Claimant's fall and the location
of the areas of pooling and freezing water was simply too fragmentary for me to
conclude that one of the conditions that plagued the area brought about
Claimant's fall. Only one person, Officer Robbins, actually spoke to Claimant
about the location of the fall, and his testimony was contradictory. Finally, I
would find for Defendant even if it had had notice of the icy condition because
the time that elapsed between the end of the hazard concealing snow storm and
Claimant's fall was too short for me to conclude that Defendant breached its
duty of care. Indeed, Claimant's own testimony shows that inmate crews and
snowplow teams were still out working at the time that he fell.
Accordingly, the claim is hereby dismissed.
All motions not previously ruled upon are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.