New York State Court of Claims

New York State Court of Claims

SULLIVAN v. STATE OF NEW YORK, #2005-016-078, Claim No. 104667


Synopsis



Case Information

UID:
2005-016-078
Claimant(s):
GENE SULLIVAN The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
SULLIVAN
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104667
Motion number(s):

Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Worby Groner Edelman, LLPBy: Paul J. Campson, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Daniel Chu, AAG
Third-party defendant's attorney:

Signature date:
December 22, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This decision follows the trial on liability of Gene Sullivan's claim that he slipped and fell on a walkway at Arthur Kill Correctional Facility because of ice and snow. The incident occurred on the morning of January 8, 2001, which was a Monday.
Mr. Sullivan had been incarcerated at Arthur Kill since July 19, 1999, and a few weeks thereafter began working in the facility's infirmary. He became a "clerk/mail runner," which was his job in January of 2001. Ordinarily, in the morning, and claimant testified that such was the case on the day of his accident, he would leave his housing unit or dorm for the medical building after the inmate count was cleared - - at 6:10 or 6:15 a.m. He estimated the walk to work as about the equivalent of two football fields in distance.

Once Sullivan got to the infirmary, he set up about 20 chairs, to be used mainly by diabetics who would receive insulin injections. Medical records had been placed in a cart the night before, and claimant pushed them into the office of the nurse, who was conducting the sick call. Since the nurse had no other task for him that morning, Sullivan, after informing the officer on duty, intended to walk to the mess hall before it closed for breakfast. He had been at the infirmary for about 30 to 40 minutes.

Starting on his way to breakfast, he took the same route he had used earlier to get to the medical building (cl exh 3). Sullivan described the weather as "bad, damp, very cold, nasty January weather . . . [but] at the time it was not snowing or raining."[1]
Claimant had on what he described as work boots, and was wearing the full green prison clothing uniform, including a jacket, because when he delivered mail, he had access to an area where civilians worked. Arthur Kill is a medium security prison.
Claimant testified as to what happened next:

I started walking down the pathway. . . like I do everyday. And I was walking carefully
because on the way up there it was very slippery. There was snow. There was ice. There was slush. . .
So, I bear right and about . . . twenty feet past that Y, that juncture [in the walkway], I was walking and, you know, being careful because it was nasty out there and the next thing you know I'm sliding, slipping and I started going off balance.
My - - my left leg started going out from under me . . . I was trying to get my balance back . . . where the sidewalk ended there was snow there, but beneath that snow was a hole . . . and my foot went in . . . and I fell like forward and hit the rest of my - - right side of my body on the concrete.

He explained that he ended up in the hole, and that it was the ice that had caused him to lose his balance: "I didn't see the ice. I seen the snow. I know there was snow out there, but I didn't know there was ice underneath it." Claimant confirmed that the blue-colored "X" on the photograph that is claimant's exhibit 3 marks the spot near the edge of the sidewalk where he fell. (It was placed there during claimant's deposition of August 21, 2002.) He added that he saw no salt or sand. Sullivan estimated that this was some 50 feet from the infirmary entrance he was required to use (the rightmost door in cl exh 3).

Sullivan was a credible witness; he conceded things that he must have realized weakened his case. On the stand, he was matter-of-fact, his answers did not come across as contrived, and his testimony was generally consistent. However, defendant points to Sullivan's deposition as contradicting some of what he said on the stand:

Q. Was it white ice or black ice? Do you know the difference?
A. White ice I believe I would be able to see. I didn't see this ice until when I got up and fell and realized it was there.

Q. And after you fell and realized it was there, was it white ice or black ice?
A. No, it was black. The sidewalk looked clear except for it was a little shiny and it was wet and the snow was right off to the side.

Def exh B, p 68.

Such does not undercut claimant's later testimony; at trial, Sullivan indicated he did not see ice at the particular place he fell and that there was snow on the concrete as well as on the grass. To this trier of fact, the black ice reference in Sullivan's deposition was his effort to try to figure out what caused him to fall. It might well be noted that the presumed difficulty in seeing black ice not only makes it more dangerous for the individual who is walking, but also makes proving notice of it to a property owner more
difficult. Murphy v 136 Northern Boulevard Associates, 304 AD2d 540, 757 NYS2d 582 (2003).
The State, like any property owner, is under a duty to maintain its property in a reasonably safe condition given the prevailing circumstances.
Basso v Miller, 40 NY2d 233, 386 NYS2d 564 (1976). This trier of fact finds that the accident happened essentially as Sullivan described it - - he fell on a slippery portion of the sidewalk, which was not fully cleared of snow and ice, and such was the proximate cause of his fall. But, to recover, claimant must further show that the State negligently failed to exercise due care. Did a dangerous condition exist and (if not created by defendant) did defendant know or should defendant have known of it with sufficient time to remedy same? Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986); Bernard v Waldbaum, Inc., 232 AD2d 596, 648 NYS2d 700 (2d Dept 1996).
While the slips/falls in the
Gordon and Bernard cases were not caused by ice and snow, the same general principles of negligence obtain here. With that said, the duty to clear the premises of ice and snow must be evaluated in view of the "realities of the problem caused by winter weather . . ." Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681, 535 NYS2d 224, 225 (3d Dept 1988). Thus, a property owner is allowed reasonable time after a snowfall to clean its sidewalks, exterior stairs, etc.
According to the official weather records in evidence,[2]
for the entire 24 hours of Monday, January 8, a trace of snowfall was recorded, and it did not snow on the preceding Saturday or Sunday. On Friday, January 5, 1.8 inches of snow fell, and no snowfall was measured from New Year's Day through January 4. Note however, that the records contain an entry that there
were six inches of snow on the ground on January 8.[3]
As for the temperatures in this period, defendant's exhibit A includes readings for every three hours, which on the Monday of claimant's fall were 30 degrees at 4 a.m. and 32 degrees at 7 a.m.[4]
For the weekend before, the temperatures swung above and below freezing: from a low of 26 degrees to a high of 39 degrees on Saturday, and on Sunday from 24 degrees to 41 degrees. (Def exh A, p 1 of the Local Climatological Data).
The temperature ranges above suggest a cycle of freezing and thawing (although we had no direct evidence thereon), which could mean the re-freezing of run-off water or snow that had already been cleared. Keith Pisons, who at the time of trial was the plant superintendent for Arthur Kill CF, testified that the facility was set on 180 acres, but no information was presented on the number or size of walkways, parking lots or other areas that would require plowing and shoveling. In any event, with the last snow on Friday and that one of only 1.8 inches, there was in general, even given modest resources[5]
, time to clear a walkway leading to the medical building, a building that was open seven days a week because of its important function.
Mr. Pisons had good overall familiarity with operations, but no specific knowledge as to this matter. He became plant superintendent at Arthur Kill in the summer of 2002 - - well after claimant's accident. Pisons had been an electrician at Arthur Kill, but left in 2000 and spent the intervening two years working at Edgecombe Correctional Facility in Manhattan. No other witnesses from maintenance took the stand.

A six-page document, entitled "2001-2002 Season Maintenance Snow Removal Call-In List/Procedure," was received in evidence (cl exh 8). This was a general guide; no record was offered as to what was done on January 8, 2001 and during the preceding three days. Under the snow removal procedure, the watch commander has certain responsibilities, but we have no watch commander log or logs showing any record of assignment of persons - - civilian team, staff or inmate porter crew - - to snow removal for that period.[6]
Compare Antonucci v State of New York, Ct Cl, June 30, 2004 (unreported, claim no. 102900, Marin, J., UID #2004-016-035[7]), in which the records contained the names of staff members who were assigned to overtime snow clearance duty at specific times. In sum, given the credible evidence, there was no showing that any snow removal efforts were undertaken in the subject area from Friday, January 5 to Monday, January 8.
***
In view of the foregoing, I find that the defendant failed in its duty to keep its premises reasonably safe and that this negligence was the proximate cause of claimant's slip and fall. However, Mr. Sullivan must share some responsibility.
He made several trips back and forth to the infirmary on Friday and Saturday, and had successfully negotiated the walkway on his way to work early Monday morning and was well aware, as he testified, that the walkway was slippery. Claimant was part of a group of inmates who had last call for breakfast, and I believe he was in a hurry. See Ettari v 30 Rampasture Owners, Inc., 15 AD3d 611, 790 NYS2d 540 (2d Dept 2005) and Conklin v State of New York, Ct Cl, February 7, 2002 (unreported, claim no. 103789, Lebous, J., UID # 2002-019-003).
I therefore find defendant to be sixty-six and two/thirds (66 2/3)% liable for the slip and fall of Gene Sullivan on January 8, 2001 and any resulting injuries therefrom. A trial on the matter of damages will be scheduled by the Court.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

December 22, 2005
New York, New York

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




[1] The punctuation and capitalization in this quotation have been modified.
[2] More formally, from the National Climatic Data Center of the U.S. Department of Commerce. Def Exh A, see page 1 of the Local Climatological Data taken at JFK International Airport.
[3] Id., the first column on such page 1, presumably from a late December snowfall(s), for which we have no data.
[4] Id. at page 4. Claimant's exhibit 10, which contained certain observations taken at Arthur Kill's power plant, had temperature readings for that Monday of 35 degrees at 7 a.m. and 37 degrees at 9 a.m.
[5] Claimant's exhibit 8 designates seven named maintenance employees as available for snow removal duty.
[6] The civilian team was mentioned by Pisons in his deposition of May 29, 2003 (cl exh 11, p 14). The only log in evidence is for Monday, January 8, which has no reference to any snow removal (cl exh 7).
[7]This and other decisions of the Court of Claims may be found on the Court's website: www.nyscourtofclaims.state.ny.us.