New York State Court of Claims

New York State Court of Claims

MARRERO v. THE STATE OF NEW YORK, #2005-016-031, Claim No. 107623


Synopsis


Claim alleging slip and fall on black ice was dismissed.

Case Information

UID:
2005-016-031
Claimant(s):
DAVID MARRERO
Claimant short name:
MARRERO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107623
Motion number(s):

Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Steven R. Harris & AssociatesBy: Joseph M. Kelley, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Leslie A. Stroth, Esq., AAG
Third-party defendant's attorney:

Signature date:
April 8, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is the decision following the trial on the liability portion of David Marrero's claim that he fell on an icy area of the Staten Island Developmental Center, a complex that is part of New York State's Office of Mental Retardation and Developmental Disabilities (OMRDD). The complex includes a number of buildings at 930 Willowbrook Road and at 1150 Forrest Hill Road, which are about a mile apart. Most of the space is occupied by OMRDD, but a portion is rented out, as it was to Mr. Marrero's employer, Lifespire, a not-for-profit organization at the Willowbrook location.

Marrero was a maintenance worker for Lifespire, with responsibilities that included the grounds outside his employer's building. Claimant's work hours were 8 a.m. to 4 p.m. On the morning of Monday, February 24, 2003, Marrero was directed by his supervisor to pick up a tool, which he described as large scissors, to "cut the . . . pin that was made out of metal in a truck" that needed to be unloaded. The tool was picked up, or borrowed, from the State's maintenance building.

To do so, Marrero had to cross a road, depicted in a number of photographs, although they do not show his own building on the near side of the street (cl exhs 1 & 2; def exhs A, B & F).[1]
Claimant's exhibit 1 prominently features the road with a dozen or so cars parked on both sides, and a one-story brick building on the opposite side of the road. Marrero testified that the building he was headed for - - maintenance - - was also not depicted in exhibit 1, but was off to the right of what was shown in the photograph. The maintenance building may therefore be the building on the right, behind the trees, in claimant's exhibit 2.
As to what happened next, Marrero testified as follows:

I came out from my work place, obviously, when I got into the street, I had to turn right ... there was nothing clear, nothing clean. The only open, clean space was here. So I was going diagonally on my left so that I could enter into that area . . . And when I reached that part, that portion . . . [w]hen I was entering, I slipped. I bent my ankle - - or twisted my ankle, and my leg was broken and I fell on the ground.

According to claimant, the first time he saw the ice that caused him to slip was while lying on the ground. He then said, "there had not been any salt there," and added that the ice was "black."
***
The parties submitted weather data from the official U.S. Department of Commerce source, but used different locations: claimant, the airport at Newark, New Jersey (cl exh 3), and defendant, data for New York State from about two dozen statewide weather stations, with Avenue V in Brooklyn highlighted as the closest to the subject Staten Island location (def exh E). There had been no snow since a week before Marrero's accident. The official reports had it as 3.7 inches of snow on Sunday, February 16, 2003 and then 15.8 inches in south Brooklyn and 18.6 at Newark Airport on Monday, February 17 (cl exh 3 and def exh E). As the latter total shows, conditions are not identical at the two weather stations, but for our purposes here, they are functionally equivalent.

It had rained on the Saturday and Sunday before claimant's fall (
id.). The early morning of Monday, February 24 was below freezing: 26 degrees at 7 a.m. and 29 degrees at 10 a.m. (cl exh 3). Marrero testified that it was 18 to 20 degrees when he fell at 9:30 a.m., which indicates that he understood it was below freezing (and could act accordingly). The weather data also reported snow on the ground the day before and the day of Marrero's accident: six inches and five inches recorded at Avenue V, and five and two inches at Newark Airport, respectively.
Testifying at trial were two longtime State employees, Donald Perina, plant superintendent, and Sidney Binion, groundskeeper, for the Developmental Center. Mr. Perina had been employed at the site for a total of fourteen years and became plant superintendent in 1994. Mr. Binion, who lived on-premises, had been the groundskeeper for eleven years.

Perina explained that there were approximately 13 State buildings at 930 Willowbrook Road, serving persons with multiple disabilities, mental and physical. He acknowledged that defendant had some outside concerns as tenants, such as Lifespire which was there when he arrived 14 years earlier. His duties at 930 Willowbrook covered maintenance of the complex's buildings, which included heating, air conditioning, painting, plumbing and electrical, cutting the grass, trimming trees and in the winter, clearing snow and ice. Perina, whose own hours were 8 a.m. to 4:30 p.m., explained that he had 38 people who would be involved in snow removal. In addition to some eight plows and eight snow-blowers, two salt-spreading trucks were used.

The groundskeeper Mr. Binion and his crew ordinarily began work at 7 a.m., but Binion was available at any hour:
Our safety office, they would call me at night - - [any] . . . time of night, 1:00, 2:00, 3:00 in the morning. Whatever they observe, if they found an icy spot, they would call me, then I would have to get up and go over there.

Perina explained that as to clearing snow and ice, the first priority were the group homes which operated on a 24-hour basis, "so our focus has to be to keep the roadway and sidewalks open for their operation." After doing the roadways, "we open up all the sidewalks, all the access ramps, stairways, doors on the facility, and also community residences . . . we have to make sure the fire hydrants are clear." The staff of the Developmental Center used snow blowers and shovels to make sure that the handicap ramps were clear.

Perina, Binion and another supervisory employee, Jim Davis, would drive around and inspect for blown-over snow and ice on sidewalks and handicapped ramps. In addition, as noted, the safety department would report any condition that needed to be cleared. This was, Perina explained, especially so after a big storm: "We may have to . . . clean the sidewalks again. . . if the wind blew snow back onto a sidewalk . . . There's just some times you run out of space to put it." As for icing: "if there's any accumulation of ice, the guys would get out there and re-shovel. And if they have to salt it or use ice-melt. They would do that as well."
The testimony of Messrs. Perina and Binion was convincing that central to these operations was the removal of ice from pedestrian and wheelchair routes. In fact, Binion's stated reason for requesting four hours of overtime on the day before claimant's accident was to salt the grounds (def exh H). Mr. Binion, plainspoken and straightforward, was highly credible. He explained:
I would take my truck . . .Anytime, you know, you see any ice - - we have salt and stuff all right on the truck. We just go out there, we see any icy spots, I tell them to throw down salt and make sure you check [buildings] 11, 13 and 15. . .because those are lower areas that would hold water . . . We'd check that area first.

Binion testified that he had never seen "black ice" where Marrero contends he fell; claimant marked two photographs at trial just off the ramp on the blacktop roadway (cl exhs 1 and 2). The black ice was not mentioned in claimant's deposition (def exh J), or to the person who first saw him on the ground. There was no accident report, only a short log entry, "Ms. Peeples reports male fell in snow - all units responding. 911 called" (cl exh 4). Leaving aside claimant's credibility,[2]
that the ice was black and thus presumably less visible[3] does not necessarily strengthen claimant's case.
***
The defendant State of New York is under a duty to maintain its property in a reasonably safe condition, but it is not an insurer.
Clairmont v State of New York, 277 AD2d 767, 716 NYS2d 760 (3d Dept 2000), lv denied 96 NY2d 704, 723 NYS2d 131 (2001); Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977). While the duty to clear ice and snow is to be evaluated in view of the "realities of the problems caused by winter weather . . .", [4]
the same general principles of negligence obtain - - as were applied in Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986), which involved slipping on a food wrapper discarded on the museum's steps.
In
Murphy v 136 Northern Boulevard Associates, 304 AD2d 540, 757 NYS2d 582 (2003), the Second Department dismissed the suit of a plaintiff who at her deposition testified that she slipped on "black ice," which she had not seen. Citing Gordon, the court ruled that Ms. Murphy had failed to show that the condition was visible and apparent, and had existed for a sufficient period of time prior to the accident for defendant to discover and remedy it. Relying on the familiar standard for premise hazards in general, the Second Department stated: "A property owner is not liable for an alleged hazard on its property involving snow or ice unless it created the defect, or had actual or constructive notice of its existence." 304 AD2d at 540, 757 NYS2d at 583. Some testimony was presented as to whether, after a heavy storm, there was room to push aside the shoveled snow, but no credible evidence came out that defendant created the condition Marrero complains of here. See Bricca v New York Telephone Co., 37 AD2d 564, 322 NYS2d 585 (2d Dept 1971). Further, there was no actual notice to defendant of the icy area that claimant contends caused his fall. With regard to constructive notice, defendant took reasonable care to clear ice and snow from the walkways, sidewalks and handicapped ramps. As per Binion's testimony, the maintenance staff was aware that rain or melted snow could accumulate at the bottom of these ramps, (including the subject ramp), and they would therefore check the area and salt if it were needed. Moreover, there were no reported complaints or prior similar accidents at the subject situs.
Mr. Marrero was familiar with the area. He had worked at Lifespire for nine months and testified that he went across the street to the maintenance building about once a week. Claimant, that Monday morning, had already entered his place of work and come out to clear and salt the walkway leading from Lifespire's building.
***
In view of the foregoing, David Marrero has failed to prove his case by a fair preponderance of credible evidence, and claim no. 107623 is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY

April 8, 2005
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1] Defendant's exhibit G, an aerial view, shows a walkway extending to a sidewalk and road; claimant stated that he was responsible for clearing the walkway. "Sidewalk" as used here refers to the paved path parallel to the road; "walkway" to other paved paths such as the one leading out of Lifespire's building. There is a small portion of a building visible at the left edge of the photograph that is defendant's exhibit G, but we were never explicitly informed that this was where Lifespire was housed. When shown claimant's exhibit 1, Marrero said that the Lifespire building was not shown, but off to the left.


[2] For example: his deposition of February 18, 2004 and trial testimony appeared inconsistent as to whether he fell on the ramp or the blacktop, and if there were pieces of ice or only one slab. Moreover, Marrero's case was notably imprecise - - neither his starting point at Lifespire nor his destination, the maintenance building, was clearly laid out for this fact finder, and claimant's photographs raised more questions than they answered.

[3] See Stoddard v G.E. Plastics Corp., 11 AD3d 862, 863, 784 NYS2d 195, 196 (3d Dept 2004).
[4] Marcellus v Littauer Hospital Assn., 145 AD2d 680, 681, 535 NYS2d 224, 225 (3d Dept 1988).