New York State Court of Claims

New York State Court of Claims

TOBIAS v. THE STATE OF NEW YORK, #2000-013-520, Claim No. 96244


Slip and fall on ice patch at Watertown Correctional Facility. Judge Patti dismissed the claim because Claimant failed to establish notice and because accident occurred too soon after the cessation of the storm to support a finding of breach of duty.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: ED J. THOMPSON, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 19, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


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 of liability.

The accident occurred on March 6, 1997[1]
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.
In his deposition,[2]
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 infirmary.

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 (
see, 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 roadway.

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 (
see, 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, Exhibit 3, location A).
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 report.[3]

Lieutenant Tedford testified that water would run through the area where Sidewalk Two met the roadway (
see, 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 sand.
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 York, 59 NY2d 997, 998), and it extends to the grounds of the State's correctional facilities (see, e.g., Montross v State of New York, 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, supra at 513; Preston v State of New York, supra). 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 Syracuse, 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 New York, 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, Ct 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 York, 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, 223 AD2d 962).
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, supra; Byrd v Church of Christ Uniting, 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.


December 19, 2000
Rochester, New York

Judge of the Court of Claims

  1. [1]The claim and bill of particulars stated that the accident occurred on March 2, 1997, but the parties stipulated at the trial that those documents were in error and that the accident occurred on March 6. I therefore amend the pleadings to reflect the proper date.
  2. [2]Claimant was incarcerated in a Westchester County facility at the time of the trial. His counsel was not able to make arrangements with the county correctional facility to have him transported to Syracuse for the trial despite diligent efforts. Defendant did not object to Claimant's use of his own deposition for the liability phase of the trial. Therefore, I find that Claimant was unavailable within the meaning of subdivisions [ii], [iii] and [iv] of CPLR 3117[a][3] and will consider his deposition as part of Claimant's case (see, CPLR 3117[a][3]).
  3. [3]Lieutenant Tedford thought that he may have also relied on the Inmate Injury Investigation Report prepared by Officer Robbins (Exhibit 23). However, Officer Robbins testified that he did not speak to Claimant or prepare his report until March 7.