New York State Court of Claims

New York State Court of Claims

ROGERS v. THE STATE OF NEW YORK, #2005-033-551, Claim No. 108019


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):

James J. Lack
Claimant’s attorney:
Anthony J. Montiglio, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 30, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

This is a claim for damages arising from the alleged personal injuries of Alice Rogers (hereinafter "claimant") sustained on January 22, 2002 as the result of a slip and fall on ice at Jones Beach State Park (hereinafter “Jones Beach), Wantagh, New York. A bifurcated trial was held to address the issue of liability.
Claimant traveled to Jones Beach on January 22, 2002, with a friend, Harry Mulligan (hereinafter “Mulligan”), to walk on the boardwalk. Claimant testified that she walked on the boardwalk many times prior to this date. Typically claimant enjoyed walking on the boardwalk to be closer to the water. However, on the incident date claimant altered her route to go by the West Bathhouse
due to snow and ice accumulations on the boardwalk. Claimant was wearing a sweatshirt, coat, gloves and sneakers on her feet.
According to claimant, the winter had been very mild. The climatological data entered in evidence (claimant’s Exhibit 4) shows that approximately 3 inches of snow fell on January 19, 2002. Claimant stated she was aware of that snowfall when she went to Jones Beach, but did not consider that to be significant. The temperature, according to claimant, was fairly warm, somewhere between 20 and 30 degrees. Exhibit 4 indicates that the low temperature on January 21, 2002 was 26 degrees and the low on January 22, 2002 was 36 degrees. The high temperature on January 21, 2002, was 39 degrees and the high on January 22, 2002 was 47 degrees. Given these temperatures the Court recognizes that snow and ice would have been melting during the day and refreezing at night.
As claimant and Mulligan were walking, claimant states that Mulligan had to use the men’s room near the East Bathhouse. Mulligan testified that when he was returning from the men’s room he told claimant that he almost slipped. The area was near the boardwalk but was a cement area adjacent to the East Bathhouse near concrete benches. Claimant and Mulligan then turned to walk and claimant fell. Prior to falling, claimant stated that she saw nothing in the area. After she fell, claimant noticed a sheet of black ice, measuring approximately 2 feet by 2 feet.
The parties relied upon the deposition testimony of four employees of defendant to detail the procedure for inspection and removal of snow and ice. The witnesses were Donna Combs, Douglas Averill, Suzzannie Bullock and Mae Dennis. The witnesses described the general duties of snow removal and treatment of ice. Workers would clear a path on the boardwalk and walkways by using a shovel, snowblower or a board to push the snow. If ice was present, then fertilizer would be spread on the boardwalk. Salt or sand would be spread on walkways to treat the ice. The questioning of the witnesses concentrated on the East Bathhouse area, in particular the concrete area near where umbrellas are rented. The logbook of activity (Exhibit 1) shows that the last snow removal done, prior to claimant’s accident, was on January 21, 2002, in the morning. No activity is shown on January 22, 2002.
The witnesses have no independent recollection as to specific activities on January 22, 2002.
In the ownership of property, the State of New York serves two functions. The first role casts the State in a proprietary function and the other role is that of a governmental function (Miller v State of New York, 62 NY2d 506). The functions are not mutually exclusive. Instead, the functions are opposite ends of a continuum (see Miller).
A governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection. Consequently, any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the State's alleged negligent action falls into, either a proprietary or governmental category. Miller at 511-512.

In regard to its proprietary function, “the State ‘must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk’ (Basso v Miller, 40 NY2d 233, 241, quoting Smith v Arbaugh’s Rest., 469 F2d 97, 100)” (Preston v State of New York, 59 NY2d 997, 998). “When the liability of a governmental entity is at issue, ‘[it] is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred’ (Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 182)” (Miller supra at 513). The State’s proprietary function subjects it to the same rules of liability as apply to a private citizen.
On the other end of the continuum, is the State’s governmental function. The State “remains immune from negligence claims arising out of governmental functions such as police protection unless a special relationship with a person creates a specific duty to protect, and that person relies on performance of that duty” (Price v New York City Hous. Auth., 92 NY2d 553, 557-558).
The State may be held liable in the negligent performance of a governmental function, if claimant can prove a “special relationship” (Cuffy v City of New York, 69 NY2d 255).
One of the theories of defense advanced by the State is that the allocation of its resources in deciding which areas of the park are to be addressed for snow and ice removal is a governmental function and claimant has failed to prove a special relationship between herself and the State.
The Court finds this argument without merit in this matter. The testimony of defendant’s employees states snow and ice removal did occur in and around the area where claimant’s accident happened.
Claimant’s testimony was that she stepped onto a patch of black ice and was not aware of what caused her fall until she was on the ground and saw it from a different angle. Claimant is unable to demonstrate that defendant had actual or constructive notice of the 2' by 2' patch of black ice (Stoddard v G.E. Plastics Corp., 11 AD3d 862; Carricato v Jefferson Val. Mall Ltd. Partnership, 299 AD2d 444; Smith v State of New York, 260 AD2d 819; Cardinale v Watervliet Hous. Auth., 302 AD2d 666; Lewis v Bama Hotel Corp., 297 AD2d 422; Golonka v Saratoga Teen & Recreation of Saratoga Springs, 249 AD2d 854). While the climatological data (Exhibit 4) shows temperatures above and below freezing on the days leading to January 22, 2002, defendant cannot be held liable for a general awareness of an icy condition without something more to constitute notice of the particular condition (Stoddard, supra; Lewis, supra; Smith v Smith, 289 AD2d 919; Smith v State of New York, 260 AD2d 819, supra).
As previously stated, claimant testified that she went in this particular area to get away from the snow and ice present in other areas. The condition which she slipped on was not readily visible.
Based on the foregoing, the Court finds in favor of defendant. The claim is dismissed and the Clerk of the Court is directed to close the file. All motions not specifically ruled upon are denied.
Let judgment be entered accordingly.

September 30, 2005
Hauppauge, New York

Judge of the Court of Claims

[1].Claimant and Mulligan’s trial testimony mentioned the West Bathhouse. The claim and the testimony of defendant’s workers concern the area near the East Bathhouse. The Court finds that claimant made an error when saying “west” and will substitute “east” for the area where claimant’s accident occurred.
[2].The Court notes that out of the 22 days listed in the logbook January 22, 2002 is one of three days which are blank.