New York State Court of Claims

New York State Court of Claims

NORWOOD v. THE STATE OF NEW YORK, #2002-015-549, Claim No. 100310


Synopsis


State had both actual and constructive knowledge of dangerous recurring condition of icy stairs and failed to remedy situation within a reasonable time. Claimant was likewise aware of alternate means of ingress and egress but chose to use stairway despite apparent danger. Liability apportioned after trial 80% State, 20% claimant.

Case Information

UID:
2002-015-549
Claimant(s):
JACQUELINE E. NORWOOD
Claimant short name:
NORWOOD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100310
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Keith F. Schockmel, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 24, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
The trial of this claim was bifurcated by order of the Court and the decision herein addresses only the issue of liability.

The claimant alleges that on the morning of January 2, 1998 at approximately 11:00 a.m. she sustained personal injuries as a result of a fall on a snow and ice covered exterior stairway at Husted Hall, one of several buildings which make up the downtown campus of the State University of New York at Albany (SUNYA). At the time of her fall claimant was the manager of the Downtown Café which was located in the basement of Husted Hall. Claimant alleges that the defendant had actual or constructive notice of the dangerous condition of the stairway which it failed to correct within a reasonable time and that the accumulation of ice at the location of claimant's fall was a recurring problem.

The claimant testified that on the day in question she was employed by University Auxiliary Services as unit manager of the Downtown Café. Although the café was closed in conjunction with a holiday recess claimant reported to the café to place food orders for the coming week and to do some cleaning. Claimant alleges that she was driven to work that day by her daughter Gwendolyn Norwood and arrived in the parking lot adjacent to Husted Hall at approximately 11:00 a.m. No precipitation was falling when she arrived but there was approximately one-half inch of snow covering the parking lot and the area in and around the exterior stairway she planned to use to enter the café. She alleged that no ice was visible on the stairway prior to her fall and that upon reaching the stairway she observed snow on the stairs, took hold of the handrail located on the left side of the stairway and slipped as she attempted to negotiate the first step causing her to fall down the stairs on her back sustaining an injury to her right ankle. She called for her daughter who was still in the parking lot. Gwendolyn Norwood came to claimant's aid, safely negotiated the stairway, opened the café door and helped her mother inside. Claimant testified that she used the exterior stairway to enter the café five days per week since becoming employed there and stated that she had observed the stairs to be slippery on prior occasions and had reported that fact to SUNYA (Downtown) Plant Manager Tom Curtin and to Tom Sellie, a member of the maintenance staff. She did not specify when in relation to the accident such reports had been made.

On cross-examination claimant testified that she used the stairway at issue several times per day and that maintenance had provided her with a bucket of sand or salt for her to apply to the stairway when conditions required. The bucket was located inside the exterior door of the café located at the bottom of the subject stairway. Claimant admitted that January 2, 1998 was the first time she had been at the café since the start of the holiday recess on December 24, 1997. When questioned as to whether an alternative means of access to the café was available on the date of her accident she testified that while there was an interior entrance to the café, the interior doors did not have a key locking mechanism and were not regularly used by her to gain access to the café. She alleged that immediately prior to her fall she was looking at the steps which were snow covered and that she slipped upon the very first step and immediately fell.

On redirect examination claimant reiterated that she was holding onto the handrail as she began to descend the stairway and clarified her earlier testimony to say that the bucket provided by the maintenance staff contained only salt and not sand as indicated in her earlier testimony.

On re-cross examination claimant admitted that she did not call the maintenance department prior to or at the time of her arrival at Husted Hall on the morning of January 2 to report the condition of the stairway. She also restated her prior testimony that she observed only snow on the steps before she fell.

The second witness was claimant's daughter Gwendolyn Norwood whose testimony regarding weather conditions on the morning of the accident mirrored that of her mother. According to the witness, she drove the claimant to the SUNYA downtown campus on the morning of January 2, 1998. There was no precipitation falling when they arrived in the parking lot outside Husted Hall, the skies were overcast and the temperature was mild. The claimant exited the vehicle and her daughter observed her as she walked across the parking lot. The witness then heard the claimant calling from the area of the exterior stairway. She exited her vehicle and was advised by her mother as she arrived at the stairway to be careful because the stairs were slippery, a condition which the witness confirmed. Defense counsel did not cross-examine this witness.

Claimant's third witness was Rickey Dale Williams who identified himself as an employee of the maintenance department at the SUNYA downtown campus on January 2, 1998. He testified that he reported to work at 7:25 a.m. on the morning of claimant's accident and noticed ice on the subject stairway around 7:45 a.m. The witness testified that he remembered the claimant stated that she might be in to work at the café that day so he verbally reported the icy condition of the exterior stairway to his supervisor Douglas Stafford. Stafford allegedly instructed Williams to inform janitor Anthony Gizzy concerning the icy condition of the stairway since exterior stairways were Gizzy's responsibility. The witness testified that he found Gizzy in the break room at approximately 8:45 a.m. and told him of Stafford's instruction to salt the steps. The witness further testified that following claimant's fall he observed that the steps were still icy.

On cross-examination Williams admitted that it would have taken only a few minutes (5-10) to salt the steps but stated that the area in question was not within his area of responsibility. He confirmed that the day prior to the claimant's accident was a legal holiday and that students were on break at the time. When questioned regarding his early morning observation of the stairway Williams was quite emphatic that he observed ice build up, not snow, on the stairway. Williams acknowledged that both of the SUNYA employees (i.e., Stafford and Gizzy) he allegedly informed regarding the icy condition of the subject stairway on the morning of January 2, 1998 are now deceased. Williams' cross-examination concluded with questions regarding alternative means of access to the café which were available to the claimant.

On redirect examination, in apparent contradiction of claimant's testimony, the witness testified that the interior doors to the café could be locked and unlocked. He additionally alleged, however, that claimant would not have had a key to the interior doors. He stated that it was Gizzy's responsibility to unlock the doors but that he did not know if the doors had been unlocked on January 2, 1998 prior to claimant's accident.

Claimant's final witness was Thomas Curtin who testified that on January 2, 1998 he was employed at the SUNYA Downtown campus as Heating Plant Utility Engineer. He testified that his duties included the supervision of campus maintenance staff and that although Douglas Stafford was the administrative supervisor of maintenance, Curtin actually handled the field supervision of maintenance employees at the downtown campus. He testified that on the day in question either or both Anthony Gizzy or Rickey Williams would have had the responsibility to salt or sand the exterior stairway in question.

The witness discussed his familiarity with the stairway which he indicated he used every day. He acknowledged that he had observed the stairway in question to be icy in the past and that ice on the stairway had been reported to him on previous occasions. The witness testified that the wall of Husted Hall above the area of the stairway contained a decorative (nonstructural) ledge approximately 20 feet above ground level upon which ice and snow would accumulate and from which water caused by melting ice and snow would drop onto the subject stairway as temperatures varied. He testified that the dripping water occasionally froze on the stairway and related both the defendant's awareness of this recurring icy condition and defendant's attempt to alleviate the condition by the construction of a galvanized metal ice dam to divert ice melt away from the stairway. The witness did not testify regarding the date of the ice dam's original construction but acknowledged that his own inspection of the dam on the date of claimant's accident revealed a crack in the solder which permitted water to drip through the crack onto the stairway below.

On cross-examination Curtin stated that although the stairway outside the café was used primarily by SUNYA employees it was also occasionally used by students. He recalled that two years prior to claimant's accident the defendant had elongated the ice dam in an effort to channel water farther away from the stairway and admitted that at one time SUNYA had considered constructing a canopy over the stairway. He also discussed SUNYA's snow/ice removal policy for the 1997-1998 academic year and the shifting of snow/ice removal priorities depending upon the presence or absence of students at the campus. He testified that although the University was in recess, administrative and other offices located on the campus were scheduled to be open by 7:00 a.m. on January 2, 1998. However, since the Downtown Café was closed the area around it would have been assigned a lower priority that day regarding snow/ice removal. He identified the six buildings which make up the downtown campus and testified to the existence of three parking lots and numerous walkways, stairs and ramps which would have required the attention of the maintenance staff that morning. The witness could not recall having received any complaints on January 2, 1998 regarding the subject stairway prior to the claimant's accident.

On redirect examination Curtin stated that it was not his responsibility to check the condition of the ice dam nor was he aware of any regular inspection of the ice dam by anyone prior to the accident. He was, however, aware that after its construction water still fell on or near the stairs and resulted in the stairway becoming icy. He testified that this particular area received attention as conditions warranted.

At the conclusion of Curtin's redirect examination the claimant rested and defense counsel orally moved to dismiss the claim alleging that claimant had failed to establish a prima facie case. The Court reserved decision on the motion which will now be addressed.

In its role as a landowner the State is charged with the duty of maintaining its property in a reasonably safe condition under all of the prevailing circumstances (
Bowers v State of New York, 241 AD2d 760). Although not an insurer of the safety of its premises (Condon v State of New York, 193 AD2d 874) the State will be liable where it is shown that the State either created a dangerous condition or had actual or constructive notice thereof and failed to correct it (Malossi v State of New York, 255 AD2d 807; Sierra v State of New York, 202 AD2d 491). When a property owner has actual knowledge that a certain condition is ongoing, it will be charged with constructive notice of each specific recurrence of the condition (Lowe v Spada, 282 AD2d 815).
Whether or not the ice formed on the stairway as a result of water dripping from the ledge above it is clear from the proof adduced at trial that the defendant was aware of a recurring slippery condition on the stairway. Mr. Curtin testified that he had observed the stairs to be icy on several occasions in the past and was aware that water continued to drip from the ledge above the stairway despite the installation and subsequent modification of the dam designed to divert water away from the stairs. In addition, the claimant testified without contradiction that she had previously informed Mr. Curtin that the stairs were slippery and Mr. Curtin confirmed that he had been advised of ice on the stairway on more than one occasion prior to the date of claimant's accident.

More importantly, the State received actual notice that the stairs at issue were ice covered when that fact was reported by Rickey Williams to both Maintenance Supervisor Douglas Stafford and Anthony Gizzy. All three gentlemen were aware that the stairway was icy. Mr. Williams discovered the condition at 7:45 a.m. He then informed Maintenance Supervisor Stafford and at approximately 8:45 a.m. relayed to Mr. Gizzy Stafford's instruction to spread salt on the steps. Claimant's accident occurred at approximately 11:00 a.m. Having been informed of the presence of ice on the stairs it was incumbent upon the defendant's employees to remedy the dangerous condition within a reasonable time which they failed to do. Mr. Williams was aware of the possibility that claimant might come to work that day and, additionally, that she would likely use the exterior entrance stairs to gain entry to the café. Under the circumstances, the Court finds that the defendant had actual notice of a foreseeably dangerous condition which it failed to remedy within a reasonable time and that the failure to act on the part of the defendant was the proximate cause of the claimant's injuries (
Ross v Lyndhurst, 2001 WL 1705027 (NYAD 2 Dept.); Lupi v Home Creators, 265 AD2d 653).
It does not, however, appear to the Court that claimant is entirely without fault. Claimant was admittedly aware of the recurring icy condition of the stairs which she used several times each work day, knew that some precipitation had occurred as recently as the night prior to her fall and knew that the café had been closed for more than a week prior to her accident. Armed with such knowledge and aware that access to the café could have been obtained through an interior entrance, claimant willingly proceeded down the snow covered exterior stairway to her ultimate injury.

The defendant's motion to dismiss the claim is denied. Based upon the evidence presented at trial the Court finds that liability should be apportioned 80% to the State and 20% to claimant.

The issue of damages will be addressed at a further trial the date of which shall be established at a conference to be scheduled following the filing and service of the decision herein.

Let interlocutory judgment be entered accordingly.


January 24, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims