New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK, #2002-019-001, Claim No. 98841


Claim dismissed after bifurcated trial; Claimant failed to establish that a dangerous condition existed of which the State had either actual or constructive notice.

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:
BASCH & KEEGAN, LLPBY: Michelle L. Kimball, Esq., of counsel
Defendant's attorney:
BY: Michael J. Danaher, Jr., Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 30, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Laureen Torres Martinez, brings this claim against the State of New York (hereinafter "State") alleging that she slipped and fell on black ice that had accumulated due to the negligent maintenance by the State of the walkway approach to the visitor's entrance gate at the Sullivan Correctional Facility Annex (hereinafter "Facility") on December 28, 1997, at approximately 8:57 a.m.

The trial of this Claim was bifurcated and held in the Binghamton District on August 27, 2001, consequently this Decision addresses the issue of liability only.

Claimant testified that when she arrived at the Facility she parked her car along the shoulder of Riverside Drive and proceeded across the roadway toward the visitors' entrance gate. At the time, she was carrying a shoulder bag with food weighing approximately 5 to 10 pounds. The weather was clear and cool that day and it appears that it had been dry for approximately two to three days prior. The Claimant proceeded toward the Facility and was walking along the edge of the driveway where she had to make a left turn into the gate area leading up to the visitors' entrance. She testified that as she was about to enter the walkway she slipped on "black ice"[1]
and fell resulting in injury.

At the time of trial Claimant placed an "X" on Claimant's Exhibit 3, a photograph, indicating the area in which she fell. However, it appears that location varied from the location Claimant previously identified in her pleadings and during her examination before trial. In her prior testimony, and the documents supplied during discovery, Claimant alleges that she fell at a specific point near the front gate post at the visitors' entrance directly adjacent to Riverside Drive. Moreover, Claimant could not remember where she was looking before she fell, but believed she was looking toward the Facility which was her final destination. Also, in her prior deposition testimony Claimant could not recall the dimension of the patch of ice on which she fell. After her fall, Claimant continued on the walkway to the visitors' entrance where she informed correction officers that she had fallen on ice.

Claimant also called Viviene Davis who was also visiting at the Facility on the morning of December 28, 1997. Ms. Davis visits the Facility approximately two times a month, usually traveling to the Facility by bus. Ms. Davis testified that on December 28
the bus discharged visitors at the gate by the driveway entrance to the Facility. She then proceeded to the walkway past the gate and then left up the walkway to enter the visitors' annex. The witness testified that she got off the bus in the usual location and slipped on a patch of ice located at the edge of Riverside Drive by the gate entrance. Ms. Davis further stated that she informed one of the correction officers at the visitors' annex when she signed the visitors' log. Upon cross-examination, however, it became apparent that Ms. Davis arrived at the Facility sometime subsequent to Claimant. While the Claimant testified that she arrived at approximately at 8:57 a.m., Ms. Davis stated her bus arrived between 9:10 and 9:15 a.m. that morning. This is further supported by State's Exhibit H, the sign in sheet for annex visitors of December 28, 1997, which shows Claimant signing in first and Viviene Davis signing in as the twelfth visitor that morning.

The State called Correction Officer Raymond Bedell, who upon learning of Claimant's fall outside the visitors' annex, went outside and took a number of photographs of the areas from Claimant's car to the visitors' walkway. (St. Exs. C, D, and E). From a review of those exhibits, and the Officer's testimony, it does not appear that the walkway to the Facility area contained any wet or icy patches. Moreover, it appears that the driveway entrance from Riverside Drive, which one would have to walk over to get to the visitors' entrance walkway, also had sufficient areas of dry road, although some wet and shadowy areas can be seen in the photographs. Correction Officer Bedell testified that he did not personally observe any dangerous icy condition in, near, or around the walkway entrance to the Facility annex.

Sergeant John Davidowsky, also a Correction Officer, testified on behalf of the State, that he walked over the same area near the entrance gate when he went on duty somewhere between 6:30 and 7:00 a.m. that morning. Both Officer Davidowsky and Officer Bedell testified that they had walked over that area when they arrived and did not observe any ice creating a dangerous condition. Moreover, both testified that if an icy condition had been observed they would have followed their usual procedure and directed an inmate work crew to apply calcium chloride to the area. Likewise, they would have done the same thing if anyone had complained that there was a slippery area.

The State is subject to the same duty as applies to any landowner, namely exercising reasonable care under the circumstances in order to maintain its property in a safe condition to protect the safety of persons entering upon its property. (
Preston v State of New York, 59 NY2d 997). While the State has a duty to maintain its property, it is not an insurer of its property and there is no obligation to guarantee one against injury. (McMullen v State of New York, 199 AD2d 603, lv denied 83 NY2d 753). In order to establish liability in a slip and fall case, Claimant here must prove, by a preponderance of the credible evidence, that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; and that said dangerous condition was a proximate cause of the accident. (Gordon v American Museum of Natural History, 67 NY2d 836; Dapp v Larson, 240 AD2d 918). In cases involving winter conditions, such as here, neither a landlord's failure to remove all ice and snow nor the existence of a patch of ice is deemed presumptive proof of negligence. (Hobbs v State of New York, 55 AD2d 710). Here, there is no allegation the State created this alleged dangerous condition. As such, it was Claimant's burden here to establish, among other things, that the ice, if any, existed prior to her fall creating a dangerous condition of which the State had actual or constructive notice thereof. (Pacelli v Pinsley, 267 AD2d 706).

While in the present case, Claimant testified that she slipped on "black ice" as she approached the entrance to the Facility annex, she was unable to describe the location and/or size of the ice. The Court has viewed the photographs taken by Correction Office Bedell immediately after Claimant's fall and these photographs demonstrate not only a relatively dry entrance way from the driveway to the walkway, but also a pristine and dry walkway leading to the entrance of the Facility annex. Since no ice can be seen anywhere in these photographs near where the Claimant alleges that she fell, this Court would be strained to find the existence of a dangerous condition upon which liability could rest.

However, even if the Court were to find that a dangerous condition existed at the time of Claimant's arrival, the Claimant here has still failed to establish by any credible evidence, that the State had actual or constructive notice of the same. While the Claimant attempted to establish actual notice with the testimony of Ms. Davis, it is clear not only from the Facility visitors' log (St. Ex. H), but from Ms. Davis' own testimony at trial that she arrived at the Facility some fifteen minutes
after Claimant sustained her fall. As such, Ms. Davis' subsequent fall could not have provided notice relative to an incident that had already transpired.

Nor is the Court satisfied that the State had constructive notice of any alleged dangerous condition. In fact, a review of Claimant's Exhibit 5 received into evidence, the monthly weather report for the City of Kingston, shows that for at least 2 ½ days prior to Claimant's fall there was no precipitation of any kind and temperatures were fairly moderate ranging anywhere from 35 to 45
. There was no proof as to weather conditions in South Fallsburg, located 40 to 50 miles from the City of Kingston, for the week leading up to the accident. Therefore, there was no proof when this allegedly dangerous condition was created and for how long it might have existed from which the Court might have been able to imply constructive notice of the same. To the contrary, the testimony of all people passing the area, specifically Sergeant Davidowsky and Correction Officer Bedell, was that the area was pristine and dry when they arrived that morning approximately two hours before the Claimant's mishap. This is also borne out by State's Exhibits C, D, & E, photographs taken some 15 minutes after Claimant reported her mishap.

Moreover, the Claimant was unable to testify at trial precisely where she was looking at the time of her fall. In fact, when asked specifically where her attention was focused, the Claimant responded that she was looking toward her destination, the Facility annex. The Court agrees with the Assistant Attorney General that had the Claimant been looking where she was going as she approached the entrance gate, she would have seen that the driveway to the gate entrance was clear and she could have avoided any ice which might have existed along the edge of Riverside Drive.

Based upon the foregoing, the Court has concluded that Claimant, Laureen Torres Martinez, has failed to meet her burden of proof to establish that a dangerous condition existed at the Sullivan Facility Annex of which the State had notice; either actual or constructive.

Consequently, Claim No. 98841 must be and the same hereby is DISMISSED.


January 30, 2002
Binghamton, New York
Judge of the Court of Claims

[1]Unless otherwise indicated, all quotations are from the Court's trial notes.