MARRERO v. THE STATE OF NEW YORK, #2005-016-031, Claim No. 107623
Claim alleging slip and fall on black ice was dismissed.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Steven R. Harris & AssociatesBy: Joseph M. Kelley, Esq.
Eliot Spitzer, Attorney GeneralBy: Leslie A. Stroth, Esq., AAG
April 8, 2005
See also (multicaptioned
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
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).
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 (
). 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
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
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
that the ice was black and thus presumably less
does not necessarily strengthen
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
, 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 . . .", 
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
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.
, 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
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
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
LET JUDGMENT BE ENTERED ACCORDINGLY
April 8, 2005
HON. ALAN C. MARIN
Judge of the Court of Claims
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.
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
See Stoddard v G.E. Plastics Corp.
11 AD3d 862, 863, 784 NYS2d 195, 196 (3d Dept 2004).
 Marcellus v Littauer Hospital Assn.
145 AD2d 680, 681, 535 NYS2d 224, 225 (3d Dept 1988).