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
leading to the outside entrance door to the Commissary. When she was descending
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
Thus there is confusion as to whether she fell when going to, or leaving from,
Then, in her oral deposition on July 11, 1997, she stated:
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
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,
, 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.
Tobias v State of New York
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
) ... [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,
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
, Ct Cl, Dec. 20, 2000 [Claim No. 98056], Collins, J., UID No.
2000-015-526). Claimant's interpretation of Crabtree v State
, 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
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
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.