New York State Court of Claims

New York State Court of Claims

PEARSON v. STATE OF NEW YORK, #2002-005-006, Claim No. 91780


Synopsis


The Defendant is not answerable in damages for Claimant's slip and fall on icy steps at a correctional facility where the testimony was equivocal as to which steps she fell from and since snow was still falling, the "storm in progress" principles applied.

Case Information

UID:
2002-005-006
Claimant(s):
BARBARA PEARSON
Claimant short name:
PEARSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
91780
Motion number(s):

Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Adorante, Turner & Myers, P.C.By: Anthony Adorante, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Reynolds E. Hahn, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 23, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant Barbara Pearson, while an inmate at the Albion Correctional Facility (Albion), alleges that she slipped on ice covered steps, fell down and as the result of the fall sustained personal injury. The fall was not witnessed by any other identified person. This trial is bifurcated and I address only the issues of liability in this decision.

On December 23, 1993, Claimant had completed her work duties in the mess hall and was going to the Albion Commissary to purchase some personal items. She was wearing personal shoes as the "mess hall" (work) boots that she had requested had not yet been issued. It was about 3:00 p.m. as she started to descend down a short series of steps[1]
leading to the outside entrance door to the Commissary. When she was descending the stair,[2] she slipped, lost her balance and fell to the concrete floor. She claims that the Defendant was negligent in (1) failing to install a handrail along the steps; (2) failing to furnish her with work boots, and finally (3) in permitting ice to accumulate on the steps, all of which contributed to her fall. She seeks money damages.
December 23, 1993, was a cold winter day, with snow on the ground as it had snowed earlier that day. Claimant noticed the snow on the steps as she approached the stairs and started to walk down. She became nervous about the snow and tried to hold the side wall, but then she slipped and fell down the remaining steps to the floor. She landed on her left hip, knee and ankle. She noticed no salt application and also stated that no railing was available. She was wearing her personal shoes. The recitations above encapsulate Claimant's testimony at trial, but are confusingly at variance with other factual assertions she has previously made.

In Claimant's own handwriting, in the Report of Inmate Injury dated December 28, 1993, she states "I was going down steps to shop. I sliped (sic) and fell down second to last step." While in her Inmate Grievance Complaint dated January 21, 1994, with her signature below, it was written: "Approx 12-28-93 I had fallen down the stairs while leaving Commissary."[3]
Thus there is confusion as to whether she fell when going to, or leaving from, the Commissary.
Then, in her oral deposition on July 11, 1997, she stated:
Q. ab Did you see the ice and snow before you fell?
A. ab Yes.

Q. ab And did that affect the way you proceeded down the steps?
A Well, I held on to the banister, but you know - - I don't know. Before you know it, my foot came from under me and I fell from the top to the bottom.[4]

Q. ab You said you grabbed on to the railing. Was the railing in the middle?

Later however in November 2001, at trial, Claimant testified, "I don't recall seeing any banisters, I don't."

Hence the following questions arise: (1) Was she entering or leaving the Commissary? (2) Which set of stairs did she fall on? Two parallel sets of stairs are shown on photograph Exhibit 5. It appears that the stairs at the right are concrete and are utilized to ascend from a courtyard area to a landing, and have a banister (handrail) to the right. The left hand stairs appear to be metal and are used to descend from the landing to the courtyard, are narrower than the ascending stairs, and have banisters on both sides.

At trial Claimant testified that she was definitely going into the Commissary, did not recall a banister and that she slipped on the second step and fell down the remaining steps to the bottom.

The Commissary Manager, a civilian employee of the Defendant, testified that the pair of adjacent sets of stairs shown on Exhibit 5 are the entrance and exit stairs to the Commissary. Both sets of stairs have handrails. However he also located and identified the entrance door to the Commissary as being down another set of stairs from the landing, the top of which can be located at the far right in photograph Exhibit 5, which stairs do not appear to have any handrails.

More significantly, and most tellingly, the Commissary Manager was working on the day of the accident, December 28, 1993, and saw the Claimant in the courtyard at the bottom of the exit stairs (with handrails) visible on the left side of Exhibit 5. Given the Claimant's confusion and equivocal assertions concerning from which set of steps she fell, whether there was a banister or not, or whether she was entering or leaving the Commissary, the Commissary Manager's testimony is refreshingly clear, and, moreover, credible. Claimant's version(s) of the events of December 28, 1993, are difficult to credit. Indeed, if Claimant were leaving the Commissary, she would have walked up the stairs from the Commissary's entrance door to the landing, and then down the stairs into the courtyard, where she was found by the Commissary Manager.

I find that the Claimant did fall on December 28, 1993, but contrary to her trial testimony, the stairs that Claimant fell down were the steel stairs, shown on the left side of Exhibit 5. These stairs are indicated as the Commissary exit stairs and contained handrails on both sides at the time of her fall.

Additionally, Claimant has not sustained her burden of proof to support her allegation that work boots would have prevented her slip and fall. With respect to her foot covering, her personal shoes versus the putatively elusive boots, Claimant would have me take judicial notice of common everyday knowledge that boots provide better traction than the personal footwear worn by Claimant. Even if I took such judicial notice, and I am not prepared to do so in the absence of a probative comparison of the treads of the soles of the generic State-issue boots with the footwear Claimant was wearing,[6]
it would take a quantum leap of impermissible speculation to then hold that had Claimant worn such State-issued boots, she would not have slipped and fallen. On that basis alone, proximate cause could not be and was not shown here. Moreover, snow was on the ground, it had been snowing that day, and it appears that it was snowing when Claimant walked to the Commissary building. I am prepared to take judicial notice of the fact that upstate winter climes are cold and snowy, and that snow on the ground can be slippery.
Since I have found that Claimant fell down stairs where there were handrails, and not the stairwell that she testified to at trial, the Defendant cannot be held answerable in damages for the failure to install a handrail along the steps. Similarly, due to the failure of proof,
inter alia, as to proximate cause, the Defendant cannot be held liable for the failure to furnish Claimant with work boots. I will now address Claimant's remaining theory, to wit, negligence in permitting ice to accumulate on the steps.
In
Tobias v State of New York,[7] the Hon. Philip J. Patti reiterated that the standard of care that applies to the State in its capacity as a landowner "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)," that 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, 62 NY2d 506, 513; Preston v State of New York, supra) ... [but] ... the State is not an insurer of the safety of its premises, and ... 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)."
Judge Patti was similarly instructive in noting that "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 (citations omitted). Mere failure to remove all snow and ice from walkways does not constitute negligence (
Rector v City of New York, 259 AD2d 319, 320)."
Furthermore, here Claimant acknowledges that it was snowing, establishing the existence of a "storm in progress," which affords the State a reasonable time after the cessation of the storm to take corrective actions (
LaDue v G & A Group, 241 AD2d 791; Freund v State of New York, 137 AD2d 908, lv denied, 72 NY2d 802). Even though Claimant testified that other inmates generally cleaned the stairways, leaving aside the question as to which stairways are so indicated, it was still snowing and there is no proof that any period of time had elapsed after the cessation of the storm before the fall.
Both parties examined the decision of now-retired Judge John L. Bell in
Crabtree v State of New York, Ct Cl, March 11, 1994 (Claim No. 85882), wherein an inmate was injured when he slipped on some ice on a paved blacktop area in a correctional facility. Judge Bell addressed the virtual impossibility of clearing snow and ice from many areas in northern portions of New York in the wintertime, similar to the facts in the claim at bar. He noted that generally there was no duty to clear snow and ice until a reasonable period of time elapsed after the storm ceased (also see, Sanchez v the State of New York, Ct Cl, Dec. 20, 2000 [Claim No. 98056], Collins, J., UID No. 2000-015-526). Claimant's interpretation of Crabtree v State, supra, as standing for the proposition that one cannot catch each snowflake after it falls is hyperbole, overly extending the reasonable rationale articulated by Judge Bell.
Moreover, I decline to embrace Claimant's lay opinion that the Commissary stairway was a "high traffic area" that a reasonable man would clean "two or three times a day," even during a steady or intermittent snow fall. I do not clean my own walkways two or three times a day. Regardless, I am not aware of any specific duty imposed upon this Defendant or any other landowner to do so on a particular schedule, and therefore, reject Claimant's improbable suggestion.

Here, there is no proof that the ice was visible and apparent, and in fact, Claimant testified that it was under the snow. Thus there is an absence of evidence that a dangerous condition existed or the Defendant was on notice thereof.

I can find no duty of care that the Defendant violated on the day of the accident. Claimant having failed to sustain her burden of proof, I must dismiss this claim. All motions not heretofore ruled upon are now denied. Let judgment be entered accordingly.



July 23, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims




[1]
See Exhibits 9 and 13.
[2]
See Exhibit 1.
[3]
Exhibit 3.
[4]
Exhibit A, p 11.
[5]
Exhibit A, p 15.
[6]
Claimant did describe the tread of the soles of the boots, but given her equivocal testimony otherwise, her testimony is neither compelling nor probative here.
[7]
The decision, UID No. 2000-013-520, dated December 19, 2000, is located on the Court of Claims web site, www.courtofclaims.state.ny.us