New York State Court of Claims

New York State Court of Claims

VANKALSBEEK v. THE STATE OF NEW YORK, #2004-013-506, Claim No. 103972


In this slip and fall claim, Claimant has failed to establish by any credible evidence improper design or construction, and further failed to prove conditions that were different in character from the conditions ordinarily and generally brought about by the winter conditions in this location or that Defendant had actual or constructive notice of the icy condition which caused Claimant's fall. Nor is there any evidence of negligence relating to an alleged failure to have removed or treated the ice on the walkway. The claim is dismissed.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 29, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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" (
see, Claim, ¶5 and ¶9).[1] 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 18
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).[2]
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 inches.[3] 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 injury.
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 96 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 York, 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 Realty Corp., 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, supra). 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 18
F and 31
F, one might reasonably con-clude that, as the temperature never exceeded freezing (32
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 accident.

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 entrance/exit[4]
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 constructed.

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.


June 29, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1]It should be noted that Claimant was permitted to file a late claim by now-retired Judge Donald J. Corbett, Jr., by order filed March 7, 2001.
  2. [2]Exhibit 10, as initially offered into evidence, was not complete. However, during trial, with the Court's permission and the consent of the parties, the exhibit was amended to include the second page, providing the entire text of subdivision "d" of Section C 212-2.
  3. [3]Reference was also made at trial to the New York State Fire Prevention and Building Code 9 NYCRR, part 600, et seq., in effect at the time, which purportedly included the language of Exhibit 10. 9 NYCRR part 600 was added on January 1, 1984, but was repealed on July 3, 2002, effective January 1, 2003. However, no certified copies of any of those regulations were offered into evidence, and thus I have nothing to compare to. Accordingly, I rely upon the language of Exhibit 10, the New York State Building Construction Code, Section C 212-2, subdivision "d".
  4. [4]My trial notes reflect the acknowledgment by Claimant's expert that the distance involved was some 54 feet.