Claimant, Julie Conklin, brings this action against the Defendant, State of New
York (hereinafter "State"), for injuries which she sustained on or about
February 11, 2000, when she slipped and fell on the stairway between the parking
lot and the visitors' entrance at the Elmira Correctional Facility (hereinafter
"Facility"), in Elmira, New York.
A bifurcated trial of this matter was held in the Binghamton District on
December 11, 2001. This decision addresses the issue of liability only.
On February 11, 2000, at approximately 1:00 p.m., Claimant slipped and fell on
a stairway between the parking lot and the visitors' entrance at the Facility.
Claimant alleges that the fall and injuries she sustained were due to the
failure of the State to exercise reasonable care, under the circumstances, in
the maintenance of the property by allowing an accumulation of ice on the
Claimant went to the Facility on that date to visit an inmate friend. She
arrived at approximately 8:00 a.m. and described the weather conditions as being
sleet and rain on a relatively cold February day. She parked her vehicle in the
lower parking lot of the Facility and ascended the stairs toward the visitors'
entrance. She remained at the Facility for approximately four hours, and when
she left it was still sleeting. The driveway areas and walkways were becoming
slippery and ice covered. Claimant, who was wearing tennis shoes, got to the
top of the stairway which descends down to the parking lot and found the
handrailing and steps were full of ice. Claimant began walking slowly down the
stairs, but when she got to the third or fourth landing down, her "feet went out
from under her"
causing her to land directly on her posterior striking the back of her head on
the stairs. Claimant, who was now wet and icy, laid on the ground for a moment
until Correction Officer Piatt arrived to offer assistance. When Officer Piatt
asked Claimant what happened, she told the officer that she had fallen on the
ice on the steps. Claimant testified that Officer Piatt responded that "they"
were supposed to salt the steps previously during the day. "I told someone to
come out and take care of the steps but they haven't done it yet." In addition,
Claimant stated that Officer Piatt told her that this was a continuing problem
at the Facility. Officer Piatt then assisted Claimant back into the Facility
where she was taken to see the Facility nurse. Claimant described the trip back
to the Facility as being a slippery one, and that she saw no evidence on any of
the steps of salting or sanding.
According to Claimant, she subsequently met the Facility nurse who asked her if
she was okay. She was given a cursory exam and then told that if she felt
poorly she should visit the local hospital or a physician for further treatment.
Claimant was then placed in a Facility van and taken down to the parking lot
where Officer Piatt told her again that if she wasn't feeling well to go to the
hospital. Claimant also stated that when she left the Facility after being seen
by the nurse she saw a crew of inmates salting and sanding the steps and the
driveway area where she had previously suffered her fall.
Claimant next called Correction Officer Reginald Piatt, who is a 33-year
veteran correction officer currently stationed at the Elmira Correctional
Facility. Officer Piatt stated that he was in fact working at 9 Post that day,
which consists of a small outer building manned by correction officers. This
building is located at the top of the stairs where the Claimant fell and
commands a view downward toward the parking lot. He further testified he saw
the Claimant laying on the stairway on her back, but did not see her fall. He
descended the stairs and helped Claimant back to the visitors' area where she
was seen, quickly examined, but not treated by a Facility nurse.
Officer Piatt also testified that one of the duties of the "9 Post" is to call
for an inmate porter to attend the stairway for snow and ice removal and/or
salting as conditions warrant. Officer Piatt credibly testified that he could
not recall any conversation with the Claimant and consequently could not
controvert the statements made by her. He also claimed that he has no
recollection of icy weather conditions or the need for removal or clearing of
snow or ice either before or after the Claimant's fall.
Claimant also introduced into evidence through Correction Officer Robert
Emmick, the Facility's Fire & Safety Officer, the Facility's Policy and
Procedure Manual. (Cl. Ex. 14). While Claimant established that a plain
reading of the manual indicates that the duty to remove ice and snow from the
steps falls under the duty of the Plant Superintendent, in actuality, the Plant
Superintendent takes no role in the removal of ice nor the salting of steps from
the parking area to the Facility. Rather, as testified to by Officer Piatt and
Officer Emmick, it is the responsibility of 9 Post officers to observe the
conditions existing at the time and call for salting or sanding or snow removal
as needed. However, it also became apparent at trial that no such records of
snow or ice removal are in fact maintained by the Facility. Furthermore, there
is no record of any type of inmate activity of salting or cleaning the steps on
this date, but the same is consistent with the fact that no records are
maintained by the Facility with respect to any salting or clearing of the ice
from the steps at any time.
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). It is 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).
It is the Court's opinion that in this case the Claimant has met that burden.
Based upon Claimant's very credible testimony, the Court is satisfied that icy
rain was falling at or near the Facility when she arrived there at 8:00 that
morning. By 1:00 p.m. the condition had worsened when Claimant was preparing to
leave the Facility. The Court credits her testimony to the extent that after
she fell she had a detailed conversation with Correction Officer Piatt who, as
the 9 Post Officer, admitted by his own testimony he was responsible for seeing
that the stairways had been salted and sanded. The Court also finds that
Officer Piatt credibly testified when he acknowledged that he has no
recollection of having a conversation with this Claimant or making the
statements she attributes to him. However, he cannot, and does not, deny the
same. Moreover, neither Correction Officers Piatt, Emmick, Puzzetti, or McNett,
have any recollection of weather conditions on the date of Claimant's accident.
Consequently, by the admissions made by Officer Piatt to the Claimant, it is
evident to the Court that the State was or should have been aware of the icy
condition of this stairway, and failed to take appropriate remedial measures
within a reasonable period of time - namely the four-hour time period in which
Claimant was inside the Facility.
However, this is not to say the Claimant does not bear a substantial degree of
responsibility for her own injury. In this regard, it has long been the law of
this State that a person is bound to see what, with proper use of one's senses,
should have been seen. (
Weigand v United Traction Co.
, 221 NY 39). Stated another way, there is
no duty to warn of a "[c]ondition that can readily be observed by those
employing the reasonable use of their senses [citations omitted]." (Tarricone
v State of New York
, 175 AD2d 308, 309, lv denied
78 NY2d 862).
Here, the Claimant by her own testimony stated that as soon as she exited the
Facility she realized the roadway, walkway, and stairway areas were slippery and
treacherous. Since the Claimant already knew that the walkway and the railing
areas were icy, and therefore dangerous, she should have exercised more
reasonable care in her descent. Consequently, this Court finds that liability
should be apportioned 50% to the State and 50% to the Claimant for any injuries
she sustained as a result of her fall at the Elmira Correctional Facility on
February 11, 2000.
The Court will set this matter down for a trial on the issue of damages as soon
Any motions on which the Court may have previously reserved, or which were not
previously determined, are hereby denied.