Claimant filed a claim seeking damages for injuries he sustained when he
slipped and fell on ice on February 10, 2003, while incarcerated at Cape Vincent
Correctional Facility (hereinafter CVCF).
At trial, Claimant said he was on his way to an
session between 8 and 8:30 a.m., on that
date. As he approached the Academic Building and reached for the door, he
slipped and fell on his back. He had pain in his lower back and could not get
up. It had snowed that morning and there was snow on the ground. Claimant said
there was ice under the snow, where he fell, that had not been removed.
A correction officer came to help. Claimant was put on a stretcher and taken
to the infirmary. Claimant stated he did not move until he was placed on the
stretcher. He was later taken to an outside hospital where x-rays did not show
any injury. Upon returning to the infirmary, Claimant was given Tylenol for the
pain. Claimant said he still has pain in his right arm and cannot lift it
straight up. He was seen at Walsh Medical Facility for an MRI which showed a
rotator cuff problem. Claimant testified he never had problems with his right
arm before his fall. Claimant was prescribed Naprosyn, twice daily, for the
pain which he still takes. Claimant's injuries make it difficult for him to
work as a painter now and to stay in this facility, he must work.
The State called Correction Officer Frank Shaw, who has been the fire and
safety officer at CVCF since 1988. He said when it snows he ensures that the
sidewalks are salted and sanded before there is any inmate movement allowed.
The work crew supervisors notify Correction Officer Shaw when the salting and
sanding has been completed, and only then are the inmates allowed to move about
Correction Officer Shaw had the walkways salted, sanded, and cleared that
morning. He investigated Claimant's accident and took
of the area where Claimant fell
just after Claimant was removed by stretcher. Correction Officer Shaw testified
that the photographs depict the general location of Claimant's fall and no
changes were made to the area before the pictures were taken. The photographs
primarily show an area to the left of the entrance
snow covered, with visible patches of
ice. Photograph D(3) is a picture of the entrance doors, and the feet of two
people, on an area covered with bits of snow. The icy areas, as testified to by
Officer Shaw, are shown to the left of the entrance doors. The bottom righthand
corner of the icy area in picture D(3), is the location of Claimant's fall.
Both in his testimony and the accident report completed on February 10, 2003,
Correction Officer Shaw stated that Claimant fell in an area that was not a
walkway. Claimant, he said, was four to five feet to the left of the walkway.
Claimant, in rebuttal, testified that the photographs were taken after he fell
and after the walkway had been cleared.
The law is clear that the State, as a landowner, owes a duty to keep its
property in a reasonably safe condition under the circumstances to protect
against the foreseeable risk of injury (Basso v Miller, 40 NY2d 233).
Yet, the State is not obligated to insure against every injury which may occur
on its property and the scope of its duty must be "[t]empered with ‘an
awareness of the realities of the problems caused by winter weather'" (Smith
v State of New York, 260 AD2d 819, 820, quoting Marcellus v Nathan
Littauer Hosp. Assn., 145 AD2d 680, 681). There must be evidence showing
that the presence of ice and snow created a dangerous condition, which Defendant
knew or should have known was there, and failed to take reasonable measures to
correct (Bernard v Waldbaum, Inc., 232 AD2d 596, 597). The fact that ice
and snow was present on an outdoor walkway, roadway, parking lot, or similar
area alone does not establish negligence (Bricca v New York Tel. Co., 37
Here, the climatological data in evidence establishes that the temperature in
the area on February 9 and 10 did not rise above freezing. There was 1.5 inches
of snow that fell on February 9 and another 3/10 of an inch fell on February 10.
Officer Shaw testified that snow and ice removal procedures were in place, and
those procedures were complied with before the inmates were permitted access to
the walkways on February 10, shortly before Claimant fell. Officer Shaw
confirmed that the walkway had been salted and sanded before Claimant's fall.
It was Officer Shaw's testimony that Claimant was found after his fall on an
area that is not part of the walkway - a point that Claimant did not question on
cross-examination or rebuttal. From the pictures in evidence, and the testimony
of Officer Shaw, Defendant met its obligation to clear the walkway of snow and
ice making a reasonably safe passage into the Academic Building, and the State
had no complaints or notice that the walkway was not safe that morning. There
was no evidence that it was foreseeable that a person would chose to walk over
the snow and ice covered area where Claimant fell, in lieu of using the cleared
walkway. Defendant had discharged its duty of reasonable care under the
circumstances and no liability may be imposed (compare Malley v Alice Hyde
Hosp. Assn., 297 AD2d 425; Perrelli v Orlow, 273 AD2d 533;
Rosenbloom v City of New York, 254 AD2d 474, lv to appeal denied,
93 NY2d 803).
The claim must be DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.