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
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
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
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
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
, 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
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
, 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
Claimant sustained her fall. As such, Ms. Davis' subsequent fall
could not have provided notice relative to an incident that had already
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
. 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.
LET JUDGMENT BE ENTERED ACCORDINGLY.