This is a claim by a pro se inmate to recover damages for a fracture of his
left little finger sustained when he slipped on a snow covered walkway at Marcy
Correctional Facility. Although the language of the claim suggests otherwise,
it appears that claimant was injured on January 18, 1998 at approximately 8:20
p.m. when he slipped as he was exiting the Bubble, a gymnasium located at the
facility. The facility's medical records demonstrate that claimant sought
attention for the injury at approximately 8:45 p.m. that evening. The language
of the claim suggests it is based upon the alleged denial of prompt and
appropriate medical attention but claimant offered no testimony at trial to
support such a theory of recovery. An interpreter was used at the trial since
the claimant does not speak English.
Claimant testified that he entered the Bubble on the night in question at
approximately 7:00 p.m. He stated that it was snowing and that it had snowed
the whole day and the previous night. He testified that he does not know when
it stopped snowing but was sure that it was not snowing at the time he fell and
was injured. He alleges that he slipped on snow which had accumulated on a
walkway near the revolving door of the Bubble and that when he fell he landed on
both hands injuring his finger. He was somewhat confused concerning the time
that he first visited the infirmary following the accident, but on
cross-examination conceded that he might have sought medical attention that same
night. It was ultimately determined that claimant had sustained a fracture of
the left little finger which was corrected by surgery. Claimant alleges that he
is unable to straighten the finger and that he experiences pain "sometimes when
it is cold."
The defendant's witnesses included Pamela Reese, a registered nurse on duty on
the night of claimant's visit to the infirmary and Fred Pumilio, the facility's
fire and safety officer. Ms. Reese, whose memory was refreshed by the
facility's medical records (Exhibit A), testified that claimant reported to the
infirmary on the night of January 18, 1998 complaining of pain in the pinky
finger of his left hand. The finger was swollen and appeared to be dislocated.
She testified that the medical record indicates that claimant jammed the finger
playing basketball. According to Ms. Reese, she contacted the physician on call
and obtained a prescription for pain medication, applied a splint to claimant's
finger and made an appointment for claimant to see the doctor the following day.
The doctor's notes set forth in the medical records for claimant's visit on
January 19, 1998 indicate that claimant fractured the pinky of his left hand
playing basketball. The records further indicate another infirmary visit
occurred on January 21, 1998 and the final entry on Exhibit A indicates claimant
had "returned from ortho surgery admitted x 24 hr. bed #3."
The defendant's other witness, the fire and safety officer, testified that his
duties include maintaining records of the facility related to compliance with
health and safety regulations, including reports of accidents and injuries. He
testified that although he was not the fire and safety officer in January 1998
he conducted a search of the facility's records and found a report of claimant's
accident. He did not, however, produce a copy of such report and the Court has
not considered his testimony in arriving at the decision contained herein.
Claimant did not extensively cross-examine the defendant's witnesses but
offered what may be deemed rebuttal testimony regarding that portion of the
medical reports which indicate that his injury occurred while playing
basketball. Claimant testified that he has never played basketball and does not
know how to play basketball and that he did not report such information to the
medical personnel at the facility. He testified further that Nurse Reese does
not speak Spanish and he does not speak English and the State should have
produced the interpreter through which he would have communicated the
information contained in the medical record relative to the happening of the
For purposes of this decision the Court will accept claimant's account of the
facts surrounding the events giving rise to his injury.
"It is well settled that a landowner has a reasonable time in which to address
a storm-related snow or ice condition on its property subsequent to the
cessation of the storm and is not required to take any corrective actions while
a storm is still in progress" (
Reynolds v Sead Dev. Group
, 257 AD2d 940). To establish a prima
case of negligence against a governmental entity for injuries
sustained due to a fall upon snow or ice the injured party must establish
"actual or constructive notice of the dangerous condition and a reasonably
sufficient time from the end of the storm which created the condition to remedy
it" (Urena v New York City Tr. Auth.
, 248 AD2d 377, 378). Absent such
proof liability cannot be imposed against the landowner (Chapman v City of
, 268 AD2d 498). Here, claimant testified that he has no knowledge
as to when the storm, which admittedly was in progress when he entered the
Bubble, ceased. Moreover, claimant offered no testimony that the defendant had
notice of the icy condition of the walkway prior to his fall (Grillo v New
York City Trans. Auth.
, 214 AD2d 648). Under such circumstances liability
would have to be predicated upon speculation that the storm ended shortly after
claimant entered the Bubble in order to afford the defendant sufficient time to
clear the snow from the area in which he fell. None of the proof offered at
trial supports such an inference. Moreover, claimant submitted no proof that
the condition upon which he slipped was caused by weather conditions
pre-existing the storm in progress. Consequently, claimant has failed to
establish a prima facie
case of liability against the State and he may
not recover for his injury.
The Clerk is directed to enter a judgment in accord with this decision.