New York State Court of Claims

New York State Court of Claims

CHICHESTER v. THE STATE OF NEW YORK, #2001-015-531, Claim No. 90083


Personal injury claim by visitor to correctional facility dismissed at close of bifurcated trial on issue of liability for claimant's failure to prove prima facie case. Two inch differential between paved walkway and surrounding ground too trivial to be actionable. State had no duty to warn users of blacktop walkway where side edges of walkway ended by signage or stripping.

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:
Shapiro & Coleman, Esquires
By: Stephen A. Johnston, EsquireOf Counsel
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 19, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The trial of this matter, conducted on January 25, 2001, was bifurcated by order of the Court dated June 8, 2000. As a result, the decision herein addresses only the issue of liability.

In their claim filed with the Court on September 6, 1994, the claimants allege that Mary Chichester sustained personal injuries as a result of the defendant's negligence in failing to maintain certain premises, namely the walkway between the administration building and gymnasium at Clinton Correctional Facility (CCF) in Dannemora, New York, in a reasonable manner.

The claimant[1] presented proof that on September 20, 1992 she, her husband and their son's girlfriend visited their son who was incarcerated at Clinton Correctional Facility. They arrived at CCF at approximately 6:00 a.m., were processed and then waited for visiting hours to begin. The procedure at the facility was to hold weekend visits with Assessment Program & Preparation Unit (APPU) inmates such as the claimants' son at the gymnasium located behind the administration building. The usual procedure was for visitors to arrive prior to the beginning of visiting hours when they would be assigned a number and other required credentials and thereafter await the commencement of weekend visiting hours at 8:30 a.m. Once visiting hours arrived visitors would be escorted from the visitors' area in the administration building through the backdoor to a blacktop walkway which led directly to the gymnasium. Entry to the gymnasium was achieved by means of four doors which open onto a concrete loading dock. The loading dock could be accessed either by a sloped and curved blacktop pathway located to the left as one approaches the loading dock or by means of a stairway located to the far right of the dock. Visitors would be brought in groups from the administration building to the gymnasium in the morning. At lunch time, those who wished to purchase food at the vending machine located within the administration building or visitors who desired to heat food previously purchased would be taken by correction officers in groups from the gymnasium back to the administration building where food would be purchased or prepared. Visitors would then return to the gymnasium to consume their meal. When visiting hours ended at 2:30 p.m. visitors would again be led by a correction officer from the gymnasium to the administration building where they would be processed prior to exiting the facility. Although the blacktop walkway to the left of the loading dock was the primary means of accessing the loading dock and the gymnasium doors, testimony by both the claimant and her husband established that it was not unusual for groups led by a correction officer to utilize the stairway to the right of the loading dock as a means of ingress or egress.

A similar process was followed on September 20, 1992. Claimant, together with her husband and her son's girlfriend arrived at Clinton Correctional Facility prior to the start of visiting hours. At approximately 8:30 a.m. the claimant, her husband and her son's girlfriend were taken by a correction officer in a group through the backdoor of the administration building, through a gate located along the blacktop walkway, to the loading dock and finally to the entrance doors to the gymnasium. At approximately 12:00 p.m. claimant and her husband joined a group which had organized for purposes of a "food run" to the administration building. The group, including claimant and her husband, were escorted by a correction officer out the gymnasium doors and down the stairs which were located to the claimant's left as she exited the gymnasium doors. The group proceeded down the stairs and then turned sharply right to follow the blacktop walkway. The claimant successfully negotiated the stairs and turned to the right to follow the group along the blacktop pathway which led to the administration building. Claimant's husband was immediately behind her and both were located in the middle and to the outside of approximately a dozen people participating in the food run. According to the claimant her left foot slipped off the blacktop surface as she proceeded along the walkway which ran across the front of the loading dock, causing her to fall and sustain personal injuries. Claimant testified that she had entered and exited the gymnasium by way of the stairway on several occasions prior to September 20, 1992 and that she had not observed any posted signs or warnings regarding use of the walkway and that there were no painted lines along its edge. Claimant claims that she was caused to slip and fall as a result of a difference in elevation between the surface of the blacktop walkway and the surrounding ground which she described as "a few inches" and which her husband estimated at between three and four inches. Photographic evidence introduced by the claimants and admitted in evidence shows an approximate two inch differential between the ground and the surface of the blacktop walkway.

At trial claimant called Ronald Foster, a retired Correctional Lieutenant who testified that he was the facility watch commander on the date of the accident and that his duties included the general running of the Clinton Correctional Facility. He described the procedures followed by visitors to APPU inmates including the food runs described above. On cross-examination by defendant's attorney, Foster testified that he was unaware of any trips or falls on the walkway either before or after claimant's fall.

Claimant Henry Chichester, whose claim is purely derivative, testified regarding visiting procedures generally and those specifically followed on the day of the accident. He testified that both he and his wife had visited their son at the gymnasium on at least twelve occasions prior to the accident date and that his wife had used the stairs and the walkway in question as many as four times prior to the claimant's fall. He testified that there were no signs in the area of the walkway nor any markings on the edge of the pavement where the accident occurred.

The claimant called Paul Knapp. Mr. Knapp is currently a Deputy Superintendent at CCF but in 1992 was a maintenance supervisor at the facility. He testified that neither the walkway itself nor the ground surrounding it was changed after the date of claimant's fall. He averred that the area depicted in claimants' photographs is essentially the same today as it was in 1992 and that the photographs taken in 1994 and 1997 fairly and accurately depict the area on the date the photos were taken and fairly and accurately depict the area at the present time with certain minor exceptions not relevant here. The witness testified that no complaints were received at the facility regarding this walkway while he was the maintenance supervisor. He testified further that pavement edges had never been painted and he was not aware of any signs regarding the walkway. Like Mr. Foster, this witness testified that he was not aware of any accidents occurring on the walkway prior to September 1992.

The claimant also called John Phillips, an investigator with the New York State Department of Law who testified that he took measurements of the walkway's height in 1997 as well as photographs of the area in which the measurements were taken.

Claimant Mary Chichester also testified. She admitted having been to Clinton Correctional Facility several times prior to the date of the accident and having visited with her son in the gym on a number of weekends. On the date of the accident claimant testified that the weather was fine and that she was wearing a jogging suit and shoes. She averred that immediately prior to her fall she left the gym along with 15-20 other people and proceeded down the steps and turned right on the blacktop. She testified that her left foot slipped off the blacktop and she fell face down. After her fall she noticed a height differential of a few inches between the walkway and the surrounding ground. Claimants' final witness was Michael Clancy who has been employed as a correctional sergeant at Clinton Correctional Facility since 1989. He testified that although he did not witness claimant Mary Chichester's fall he prepared a memo regarding her accident as part of his assigned duties.

The Court also received into evidence without objection the deposition testimony of Patrick Leclerc dated May 1, 2000. Mr. Leclerc testified at his examination before trial that he is a retired corrections officer who was last employed at Clinton Correctional Facility as a fire and safety officer. Leclerc testified that he had no direct knowledge of claimant's fall. He also testified that he did not recall ever seeing any signs or pavement edge markings on the walkway between the gym and the administration building.

At the conclusion of claimants' case the defendant moved to dismiss the claim for failure to establish a prima facie case in that claimant had not demonstrated that the State had prior notice of the alleged dangerous condition of the walkway and failed to establish that such condition was a proximate cause of claimant Mary Chichester's accident. The Court reserved decision on the motion. The defendant rested without calling any witnesses.

"It is axiomatic that in order to state a prima facie claim of negligence, a claimant must prove the existence of a duty, the breach of that duty, that the breach was a proximate cause of the accident and damages" (see, Green v State of New York, 222 AD2d 553, 554 citing Turcotte v Fell, 68 NY2d 432). The State as a landowner is subject to the same rules governing private landowners. In that role 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 injury, and the burden of avoiding the risk" (Preston v State of New York, 59 NY2d 997, 998). It has been further said that an "owner of a public passageway may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection" (Liebl v Metropolitan Jockey Club, 10 AD2d 1006; Sullivan v State of New York, 276 AD2d 989). Whether a defect is trivial is to be determined by the Court on the particular facts of each case and "requires consideration of such relevant factors as the dimensions of the alleged defect and the circumstances surrounding the injury" (see, Sullivan, supra).

In the instant case the evidence offered at trial shows that the accident occurred at approximately 12:00 noon and that the weather was "fine." Claimant was on a food run which necessitated a journey over the subject walkway which stretched from the loading dock to the administration building at Clinton Correctional Facility. Claimant admitted that she had visited this area numerous times and had used the loading dock stairs and the walkway leading therefrom to travel between the administration building and the gymnasium at least three times prior to her accident. She knew that in order to stay on the walkway she needed to turn right at the bottom of the loading dock stairs and had negotiated this maneuver prior to her fall.

The essence of the claim appears to be that the State failed to mark the edge of the walkway with paint or some other substance to alert users to the boundaries of the walkway or, in the alternative, that the State had a duty to warn users of the walkway through signage or other means that stepping off the walkway could lead to injury. The Court is aware of no statute or decisional law which imposes such a duty upon an owner of a walkway or sidewalk. It has been held that the owner of a public passageway should not be held liable for injuries incurred by those who wander or slip off the walkway absent proof that the walkway was constructed or maintained in such a manner that it violated good and accepted safety standards (Guerrieri v Summa, 193 AD2d 647, 648) or was designed or constructed in such a manner as to trap the unwary user. No such proof was offered by the claimant.

Upon the evidence presented, including the testimony of claimants' witnesses and the photographs of the accident site (Neumann v Senior Citizens Ctr., 273 AD2d 452), the Court concludes, as a matter of law, that the walkway at issue contained no substantial defect upon which to predicate liability. Even if a defect were said to exist in this case, it is the opinion of this Court that the height differential of two inches between the top surface of the walkway and the ground is too trivial to be actionable. The two inch height differential between the built up walkway and the surrounding ground, which was clearly visible to pedestrians, possesses none of the characteristics of a trap or nuisance (Maloid v New York State Elec.& Gas Corp., 257 AD2d 712, 713).

Moreover, it is well settled that a landowner has "no duty to correct or warn of a condition that is readily observable to a person of ordinary intelligence employing the reasonable use of his or her intelligence" (Patrie v Gorton, 267 AD2d 582). Here the Court finds that the State had no duty to erect and maintain signs warning users of the walkway to stay within its boundaries or risk injury; nor is there a duty on the part of landowners to detail the edge of every walkway or path as urged by the claimants (see, Tarricone v State of New York, 175 AD2d 308; Hopson v Turf House, Inc., 252 AD2d 796).

Even were the height differential between the walkway surface and surrounding ground determined to be actionable, claimant failed to establish that the defendant affirmatively created the condition or had actual or constructive notice of its existence. Notice of a dangerous or defective condition is required to establish liability (Brown v Johnson, 241 AD2d 829). No proof of notice was put forth by the claimant and, in fact, the only proof upon the subject was that offered by the defendant which established an absence of prior complaints or accidents regarding the walkway. Constructive notice requires that a defect be visible and apparent and have existed for a sufficient period of time preceding the accident as to enable the defendant to discover and correct it (Phillips v Northway Mall Assocs., 243 AD2d 786). No proof was offered to establish the length of time the alleged defect existed prior to the accident. Finally, the claimant offered only speculation to support the argument that a prior construction project near the accident site created the allegedly dangerous condition (Williams v Hannaford Bros. Co., 274 AD2d 649).

Accordingly, the defendant's motion to dismiss the claim for the claimants' failure to prove a prima facie case is granted.


March 19, 2001
Saratoga Springs, New York

Judge of the Court of Claims

[1]As used herein the term "claimant" refers to Mary Chichester.