Claimant Meghan VanKalsbeek was a student at the State University of New York
at Brockport (Brockport) when she slipped and fell on an allegedly icy walkway
on campus injuring herself in the process. The accident occurred on February
18, 2000, at approximately 8:30 a.m. while she was en route to Hartwell Hall, a
building located on the Brockport campus. Liability is premised on the
allegation that the Defendant was negligent in failing to maintain the "ramp"
leading to the building in a "reasonably safe and serviceable condition" (
Claim, ¶5 and
The trial was bifurcated and this
decision is limited solely to the issue of liability.
On the date of the accident, Claimant arrived early for classes in order to
prepare for a test to be given that day. The test was to be administered in a
classroom within Hartwell Hall (Hartwell). She parked her vehicle in the lot
adjacent to that building and, while there were several entrances to Hartwell
from which to choose, she elected one with a sidewalk that sloped down from the
lot and passed in front of the building. The sidewalk appears to be
approximately nine feet wide and is composed of macadam along its length
(Exhibit 4). To move from the parking area to her selected building entrance,
the walkway Claimant was attempting to access sloped downward toward Hartwell
(Exhibits 5 and 6). Photographic Exhibits 5 and 6 depict a red light pole
embedded in the ground off the pavement, providing the approximate location on
the walkway at which Claimant testified that she fell.
February 18, 2000 was a relatively cold day, with the temperature ranging from
F to 31
F, not unusual for that time of year in this locality. There had been some snow
in the area prior to the date of Claimant's fall, as reflected on photographic
Exhibits 3 and 4, both taken a few days after the accident. Ms. Vankalsbeek
testified at trial that as she proceeded down the sidewalk she noticed nothing
unusual about its surface and had no recollection of the weather conditions that
day. At her deposition, she testified that while the sidewalk was wet, there
was no standing or running water on the surface of the walk, nor could she
recall anything that she would describe as dangerous.
As Claimant proceeded on foot down the walkway, she suddenly felt herself
slipping and falling to the ground. She heard a series of "pops" and felt a
sharp pain in her left ankle. As she sat on the ground calling for help, she
noticed ice on the surface of the walk for the first time. Unable to walk and
with no apparent help readily available, she attempted to "crab walk" to
Hartwell. At some point, Dale Steffen, a grounds crew employee at Brockport at
the time of this incident, arrived at the scene and assisted Claimant into
Hartwell Hall. Claimant completed her "crab walk" into Hartwell with his
assistance, and upon entering the building, he helped her to a place where she
could sit. While inside, they awaited the arrival of medical personnel who had
been alerted by the Public Safety Office when Steffen called them to report the
fall. Steffen stated that he recalled that the walkway was wet, but could not
recollect whether there was ice or slush.
Steffen testified at his deposition (Exhibit 7) that every morning during the
winter, as part of their normal routine, Brockport employees would plow and
salt/sand the sidewalks if there was snow on them or if it were cold. He also
stated that when he returned to the maintenance area he sent someone to salt the
area after Claimant's fall.
Claimant also introduced the deposition testimony (Exhibit 7) of Mark Ricci, a
University Police Officer employed by and working at Brockport on the date of
the accident. Officer Ricci authored the accident report (Exhibit 13). After
responding to the report of the accident, he located the Claimant in Hartwell
Hall and was informed by her and Steffen that she had fallen on a sidewalk, with
Steffen indicating where the sidewalk was located. Ricci spoke with Claimant,
learning from her the particulars of her fall. While Ricci apparently never
inspected the area of the accident, he stated that he did call the grounds
department to have them salt/sand the sidewalk.
George Scardetta, a professional engineer licensed by the State of New York,
testified, without objection with regard to his background or experience, as an
expert on Claimant's behalf. He stated that he visited the site of the fall
with Claimant and was shown the area where she fell. He photographed the area
(Exhibits 1, 2, 3 and 4) and, using a 12-inch ruler and a level, determined that
the slope of the walkway was 1.12 inches of vertical rise over 10 inches of
horizontal span. This led him to conclude that the design and construction of
the walkway violated the New York State Building Construction Code, Section C
212-2, subdivision "d" (Exhibit 10).
This portion of the code, entitled "Passageways, Ramps, Tunnels, and Horizontal
Exits," requires the slope of an exit ramp to be no greater than 1 inch on 10
The deviation that Mr. Scardetta
ascertained, in his opinion, made the sidewalk unsafe, and he opined that this
deviation was the proximate cause of Claimant's fall and
Mr. Scardetta went on to testify and acknowledge that the distance between the
entrance/exit Claimant intended to use to enter the building was some 54 feet
from the so-called "ramp" and further that the doorway was separated from the
sidewalk by a three-step riser and railing. He opined that the construction
standards for "ramps" applied to the sidewalk on which Claimant fell and that he
had reached this conclusion after having reviewed the standards for side-walks.
He was, however, unable to identify or produce the "sidewalk" standards he
relied upon to conclude the area in question was a ramp.
Claimant rested at the conclusion of his testimony and the Defendant rested,
electing not to call any witnesses.
The State, as is the case of any landowner, has a duty to those individuals who
enter upon its property to maintain it in a reasonably safe condition under the
circumstances then prevailing (
Clairmont v State of New York
, 277 AD2d 767, lv denied
NY2d 704). However, the State is not under the obligation to insure against
every injury incurred on its property (Matter of Boettcher v State of New
, 256 AD2d 882; Condon v State of New York
, 193 AD2d 874). In
order to establish the State's liability, Claimant must prove by the fair
preponderance of the credible evidence that the Defendant created a dangerous
condition or had actual or constructive notice of a dangerous condition
(Bernard v Waldbaum, Inc.
, 232 AD2d 596). Constructive notice may be
established if there is evidence that the defect was visible and existed for a
sufficient period of time for a defendant to discover and remedy the condition
(Gordon v American Museum of Natural History
, 67 NY2d 836). The fact
that there may be a general awareness that a dangerous condition may be present
is legally insufficient notice of a particular condition (Piacquadio v Recine
, 84 NY2d 967, 969).
In order to establish liability for failure to remove snow and ice from a
walkway, Claimant must prove that the accumulation is different in character
from the conditions ordinarily and generally brought about by the winter
conditions in this location (
Williams v City of New York
, 214 NY 259, 263-264; Matter of Boettcher
v State of New York
). There is nothing probative in
this record upon which I can find that the Defendant had actual or constructive
notice of the icy condition which caused Claimant's fall. Moreover, there is no
evidence of negligence relating to an alleged failure to have removed or treated
the ice on the walkway.
Claimant makes an unsupportable quantum leap of logic in suggesting that the
fact that Steffen sent somebody from the grounds department to salt/sand the
walkway after Claimant fell provides evidence that the grounds crew had not
checked the sidewalks and walkways previously that morning. First, Steffen's
testimony is that since Claimant had slipped, it "must have been a little
slippery," so he sent someone over to the walkway "to make sure" that it was
salted or sanded. I am unable to infer from that testimony, as Claimant
suggests, that an inspection of that walkway and any sanding or salting had not
been done that morning.
In fact, I draw a contrary inference from Claimant's argument that, since the
area surrounding the ice was wet, the area had not been sanded or salted prior
to the fall. Since the evidence reflects a temperature range that day between
F and 31
F, one might reasonably con-clude that, as the temperature never exceeded
F), the walkway would have been frozen and not wet. However, since Claimant
argues that it was wet in the immediate vicinity of the fall, it is a reasonable
inference that such wetness could have resulted from earlier salting or sanding,
which Steffen described as the normal morning routine in cold or snowy weather.
In any event, the proof is inadequate to support a finding that there was a
failure to have inspected and/or treated this sidewalk that morning prior to the
Claimant also alleges that the design and construction of the sidewalk was
faulty and in violation of the New York State Building Construction Code. Her
expert, Mr. Scardetta, testified at some length that the ramp on which she fell
had a slope that was greater than what the Code mandated. He specifically
relied upon Section C-212-2, subdivision "d" of the New York State Building
Construction Code (Exhibit 10), which pertains to passageways, ramps, tunnels
and horizontal exits. The section neither refers to nor defines the term
"sidewalk," nor does it establish standards for the construction of a sidewalk.
Claimant relies upon the opinion of her expert that the sidewalk on which
Claimant fell was in fact a "ramp" and therefore its construction and slope was
regulated by the code provision referenced above. However, that section refers
to a ramp as part of a horizontal exit which required a ramp or a riser
consisting of at least three steps or risers. Moreover, the location of
Claimant's unfortunate slip and fall was located more than 50 feet from the
she was intending to use for access to Hartwell.
I was not persuaded by the expert's opinion that the sidewalk being used by
Claimant is a ramp within the meaning of the New York State Building
Construction Code in evidence before me, and thus it is not applicable here.
The fact that it has a slope does not change its character in any way based on
the proof before me. Claimant's persistent use of the term "ramp" instead of
sidewalk or walkway is hardly surprising, because it is only that nomenclature
which allows application of the New York State Building Construction Code, and
only the application of the Building Code allows an inference of negligence.
But the adage that "if it looks like a duck, walks like a duck and quacks like a
duck, then it probably is a duck" seems apropos here. No matter how often it is
misnomered, it is clear that this is a sidewalk and not a ramp.
This is a slip and fall on a public sidewalk, and the Claimant has failed to
establish by any credible evidence that it was either improperly designed or
Defendant's motion to dismiss the claim, made at the end of Claimant's case,
upon which I reserved decision, is now granted. The claim is dismissed.
All other motions not heretofore ruled upon are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.