New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2005-013-501, Claim No. 95574


State did not violate the standard of care nor was it negligent in its removal of ice and snow and 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:
February 28, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


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 "bubble",[1]
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 yard.
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.[2]
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 (Exhibit 2).

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 witnesses.

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 New York, 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, 947-948).
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 New York, 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, 594).
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 (
i.e., 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.


February 28, 2005
Rochester, New York

Judge of the Court of Claims

  1. [1]All quotes are from the Court's trial notes unless otherwise indicated.
  2. [2]The E-Block log notes that at "Appox [sic] 1:05 p.m." the Claimant slipped on ice in the E-Block yard and was injured (Exhibit 3).