Claimant Jaime Rodriguez was injured as a result of a fall on February 18,
1995, while he was an inmate at the Attica Correctional Facility (Attica). The
injury occurred as he was on his way to that portion of the recreation yard
where the "pull-up" exercise apparatus was located when he slipped and fell,
fracturing his right ankle. The trial was bifurcated and this decision is
limited only to issues of liability.
The fall occurred on the concrete walkway located along the perimeter of the
E-Block yard. This yard, rectangular in shape, is bounded on the north and west
by a wire fence, and on the south by the E-Block (Exhibit 5). The entrance to
the yard from E-Block at the time of this accident was at the southwest corner.
The correction officers' guard station, or
was to the north of the entrance. The area containing the "pull-up" device was
located diagonally from the guards' station on the other side of the
On the day of the fall, the temperature recorded in the Watch Commander's log
at the start of the 7:00 a.m. to 3:00 p.m. shift was 26
ΒF above zero; for the 3:00 p.m. to 11:00 p.m. shift, the temperature was
recorded at 44ΒF above zero (Exhibit 2). According to the log maintained
at E-Block (Exhibit 3), the accident involved here occurred at approximately
1:00 p.m. In the days immediately preceding the accident, the logbook entries
indicate that temperatures fluctuated to a similar degree and were somewhat
warmer than those contained in the National Climatic Data Center records of the
National Oceanic and Atmospheric Administration (NOAA) compiled at Batavia, New
York (Exhibit 1). Batavia is located approximately 12 miles northeast of
Attica. I have relied upon the temperatures set forth in the Watch Commander's
log for purposes of this decision, as the variance in temperatures between
Batavia and Attica is slight and can be explained by the distance between and
location of the two sites.
The only witness to this accident to testify at trial was the Claimant, who
stated that he had been at Attica for perhaps only a month and a half prior to
the accident. He had taken part in outside recreation several times prior to
the accident, including the day before his fall. He stated that the walkway was
oval in shape. The area in the center was comprised of grass and/or dirt and
referred to as the yard. According to Claimant, it had last snowed two or three
days prior to the fall, and inmate porters responsible for clearing the walk had
shoveled the snow off the walkway, piling the removed snow at the edge of the
walkway and yard in mounds varying in height between 6 and 12 inches. He stated
that on the day of the accident there was no snow on the walkway.
On the day before this occurrence, Claimant claimed that he was aware that the
walk was slippery and allegedly went to the outside guards' station and told the
correction officer on duty of the icy condition on the walkway.
On the day of his fall, Claimant went out to the yard in the afternoon but he
was unable to recall the time.
He stated that was the first time he had been outside that day. He was wearing
rubber-soled State-issued boots and was otherwise dressed for the weather of
that day. As he exited E-Block, he turned right and proceeded along the walkway
to the workout station he intended to use. As noted above, he stated that there
was no snow on the walkway. He testified that when he first saw the walkway it
appeared to be wet, and it was only after walking a distance that he began to
sense that there was ice under his feet. He went on to state that his belief
that the surface was icy was confirmed when he observed the other inmates in
front of him apparently slipping on ice. As a consequence, he started to walk
cautiously, according to him. After covering a distance he estimated to be
somewhere between 50 to 80 feet, his feet went out from under him causing him to
fall and fracture his ankle.
Claimant testified that he did not see the ice since it was clear and appeared
to him as merely a wet blacktop surface, or, in other words, black ice covered
the width of the walkway which he estimated to be approximately 5 to 6 feet
wide. It was the same condition he saw on the walkway the day before when he
claimed to have reported the conditions to the correction officer in the
"bubble." He stated that he was told at that time that it would be taken care
of. Interestingly, he also stated that on the day of his fall he noticed the
icy condition after he had taken two to three steps out of E-Block into the yard
(Trial Transcript, p. 27), but did not report it to the correction officer in
the "bubble." Claimant went on to say that the Defendant had not taken any
steps to remove the ice, since he did not see or feel any salt and/or sand on
the icy area of the walkway. This apparently led him to conclude that there had
been no effort by the Defendant on either the day before or on the day of the
accident to resolve this icy condition.
Claimant stated that as he sat on the ground after the fall, he noticed that
the entire area around him was ice covered.
On cross-examination he was confronted with several inconsistent statements
regarding the first time he noticed ice on the walkway on the day of the
accident, as well as the distance he walked before he reached the area of the
fall. These inconsistent distances were reflected in his deposition testimony
vis-a-vis his trial testimony. He also stated that there was a "small clump or
bump of ice" and his leg caught, preventing him from extending both of his legs
out in front of him. He testified that he did not see the "clump" prior to his
fall, and that the chinning (pull-up) bar he was going to use was located
diagonally across from the point where he entered the sidewalk and that he did
not notice any path or paths cut in the snow across the unimproved portion of
the yard to the exercise equipment.
Thus Claimant rested without calling any further witnesses.
Correction Officer Michael O'Boyle was the sole witness for the Defendant.
However, he did not observe the accident and, even though he was on duty that
day, he had no recollection of the event. He was working the 9:00 a.m. to 5:00
p.m. shift that day and was stationed in E-Block, as he had been since being
transferred to Attica in 1989. He testified that during the winter inmate
porters would be escorted to the yard at 8:30 a.m. to clean the walkway in
preparation for those inmates who wished to use the area to exercise. This
usually entailed removal of any snow that may have accumulated during the night.
If there was ice, the porters would apply rock salt to clear the walkway.
Officer O'Boyle noted that inmate recreation was allowed in the morning and
again in the afternoon, weather permitting, throughout the year. During his
shift he would generally be in the yard in the morning at about 10:00 a.m. and
again the afternoon around 2:00 p.m. It was his testimony that he generally did
not observe ice on the walkway since it would have been cleared by then. In
addition, he stated that there were pathways created by inmates making shortcuts
across the inner or dirt and grass portion of the yard to the exercise area. He
further averred that he recalled the presence of these paths in the snow in
February 1995 and that they could have ice on them or be muddy, depending on the
weather. He testified that, according to data contained in the Watch
Commander's log for the day of the accident, the temperature at the beginning of
the 3:00 p.m. to 11:00 p.m. shift was 44 degrees and the weather was sunny
Officer O'Boyle stated that on occasion porters might not start snow removal
exactly at 8:30 a.m. if there had been a disruptive incident in the block prior
to that time. In fact, on the day in question, he testified that there had been
a stabbing on E-Block at 9:45 a.m., and, while it was possible that the porters
had not yet cleared the walkway of snow and/or put down salt, it was unlikely
since the stabbing occurred an hour and 15 minutes after the time when the
porters would have started the cleaning process. Further, he stated that the
walkway was inspected by a second officer in the block prior to the release of
inmates to the yard to insure that the clearing and salting had been completed.
I decline Claimant's invitation to speculate that the second officer, who did
not testify at trial, failed to inspect the yard that day because of the
stabbing. Rather, I accept Officer O'Boyle's testimony as establishing the
regular practice and custom of the second officer inspecting the yard prior to
the release of inmates.
As did the Claimant, the Defendant rested without calling any other
The standard of care for the State of New York in its capacity as a landowner
is the same as that which applies to a private landowner (
Miller v State of New York
, 62 NY2d 506, 511), and extends to the grounds
of the State's correctional facilities (see e.g. Montross v State of
, 219 AD2d 845).
However, the State is not an insurer of the safety of its premises and
negligence will not be inferred solely from the mere happening of an accident
Condon v State of New York
, 193 AD2d 874). The State is responsible in
the operations of its correctional facilities only for hazards reasonably
foreseen and risks reasonably perceived (Flaherty v State of New York
296 NY 342, 346). To cast the State in liability, the Claimant has the burden
of establishing that a hazardous condition existed and that the State either
created the condition or had actual or constructive notice of the specific
hazardous condition and failed to take reasonable steps to eliminate the hazard
(Miller v City of Syracuse
, 258 AD2d 947,
Furthermore, these principles must be applied with an appreciation of the
problems caused by winter weather (
Pappo v State of New York
, 233 AD2d 379, 379-380; Goldman v State of
, 158 AD2d 845). A claimant who slips and falls on snow or ice must
establish that the injury-causing condition was dangerous and different in
character from conditions ordinarily and generally brought by winter weather in
a given locality (Williams v City of New York
, 214 NY 259, 263-264;
Schwabl v St. Augustine's Church
, 288 NY 554). The mere failure to
remove all ice and snow from the sidewalk does not constitute negligence
(Rector v City of New York
, 259 AD2d 319, 320), unless it is shown that
the hazardous condition was increased by what was done in an effort to remove
the hazard (Reidy v EZE Equip. Co.
, 234 AD2d 593,
It is on this issue that Claimant's proof fails. There is a lack of credible
evidence that the alleged icy portion of the walkway where Claimant purportedly
fell was the result of the State's negligent removal of snow or ice on the day
of the accident and/or the days preceding the accident (
that the State created the allegedly dangerous condition).
Moreover, there is a complete failure of proof establishing that the State had
actual or constructive notice of the ice patch or its location that day.
Claimant stated that he was unable to see the condition until he was upon it and
then, rather than return to alert any correction officer of the condition, he
chose to walk over the area, albeit according to him, stepping cautiously.
Further, there is no credible proof before me to support Claimant's theory that
the State exacerbated or created a dangerous condition in clearing the walkway
by allowing the accumulated snow to melt and "refreeze" on the walkway, creating
the alleged "thin layer" of ice upon which Claimant purportedly slipped. Even
allowing for Claimant's lay speculation that such melting and refreezing took
place, such a theory is belied by the 44
ΒF temperature and sunny conditions at Attica recorded less than two hours
after the fall on the date in question (Exhibit 2). Even if the temperature was
less than 44ΒF at the time of the fall, Claimant failed to establish that
it was either close to or below freezing.
Finally, Claimant failed to produce any credible evidence that the walkway was
not cleared that morning in accordance with the State's normal practice, or that
salt had not been applied to the area that morning, or that the State failed to
inspect the walkway before inmates were allowed to go outside. Additionally,
there is no credible proof as to how long, if at all, the alleged icy condition
existed before Claimant's fall.
I can find no duty of care that the Defendant violated on the day of the
accident. Claimant has failed to sustain his burden of proof, and, based on the
foregoing, I must dismiss this claim.
All motions not heretofore ruled upon are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.