New York State Court of Claims

New York State Court of Claims

LAWRENCE v. CITY UNIVERSITY OF NEW YORK, #2006-014-111, Claim No. 107591


Synopsis


Claim for negligence based upon a slip and fall on ice that had formed in a crack in a driveway, dismissed after trial; the claimant did not sustained her burden of establishing that the defendant is responsible for the condition which caused her injury.

Case Information

UID:
2006-014-111
Claimant(s):
VERONICA LAWRENCE and NATHANIEL LAWRENCE
1 1.The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
LAWRENCE
Footnote (claimant name) :

Defendant(s):
CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107591
Motion number(s):

Cross-motion number(s):

Judge:
S. MICHAEL NADEL
Claimant’s attorney:
Martin Marlow, Attorney at LawBy: Bruce S. Ginsberg, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph L. Paterno, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 21, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
The claimant
[2]
seeks to hold the defendant liable for injuries she sustained on January 22, 2002, when she slipped and fell on ice that had formed in a crack in a driveway at Medgar Evers College, one of the senior colleges of the City University of New York.
The claimant testified that she had been a student at the college on an intermittent basis since the fall of 1998, and that on January 22, 2002 she was on campus to meet with the chairperson of the school’s nursing program. At about 10:15 AM she entered the Carroll Street entrance of the school’s main building, and went to the office where she was told to wait. After about 50 minutes she was informed that the chairperson was not going to be in that day.
She exited the building into the parking lot and walked down a sloping driveway. When she came to the area where the driveway leveled, she lost her footing and fell to the ground hitting her right knee. While on the ground, she looked at what had caused her to fall and saw what she described as a three-foot by three-foot oval of “black ice.” She characterized the ice patch as transparent and the same color as the pavement. Two photographs, each identified by the claimant as a fair and accurate representation of the area, except for the absence of ice, were received in evidence (Exhibits 1 and 2).
According to the claimant, Dr. Gibson, a professor at the college, drove up to the area, exited her vehicle, approached claimant as she lay on the ground, and called for help on her telephone. Mr. Boyki of campus security arrived at the scene and he and Dr. Gibson helped the claimant up off the pavement after approximately ten minutes. Mr. Boyki escorted the claimant to the nurse’s office. Nurse Barrows, whom the claimant knew from prior visits, was on duty; she applied ice to the claimant’s left hand and right knee.
While at the nurse’s office, the claimant made entries in a health services incident report (portions of which were received in evidence as Exhibit 4) and submitted it to the nurse, and in a supplementary public safety incident report (Exhibit 3), which she gave to Mr. Boyki. She was eventually carried out of the nurse’s office to an EMS ambulance.
On cross examination, the claimant testified that she had often walked the driveway, was aware that it was sloped and had a drain at the bottom, but did not know if it was a drainage area. She did not recall if she saw snow in the area that day. She stated that when she arrived at the school, the temperature outside “was in the 40's.” It is not disputed that it had snowed three inches during the afternoon and into the evening of Saturday, January 19, 2002 (Claimants’ Exhibit 8), and that Monday, January 21, 2002, was a legal holiday.
Claimants called Donald Krendel as a witness. Mr. Krendel, who works in the field of legal photography, testified that he took the photographs, Exhibits 1 and 2, on March 19, 2002.
Claimants called Joseph Cannizzo as an expert witness. Mr. Cannizzo, a licensed engineer, opined that based on the eroded and rounded-off condition of the crack in the concrete, as depicted in the photographs, Exhibits 1 and 2, the condition had existed for approximately five years. Not having visited the actual scene, he arrived at this estimate by looking at the photographs. He had not reviewed any documentation or reports concerning the area. He could not identify any engineering standard that allowed for his determination of the age of a crack in concrete by viewing a photograph.
Johnnie Pullum, Supervisor of Maintenance and Laborers of Buildings and Grounds Department at the time of the incident, was called as a witness by claimants. Mr. Pullum testified that, with a crew of five or six workers, he would inspect the campus for hazardous conditions. His staff would attend to the repair of minor hazards, but more serious conditions would require the retention of contractors. Determinations of the severity of a condition and whose responsibility it would be to make the repair were made by Stanley Croughter, Superintendent of Buildings and Grounds.
Mr. Pullum characterized the driveway as a “problem” area, and agreed that in earlier deposition testimony he had called it a “suspect area,” concerning which there had been many complaints. He said that the driveway was not limited to use by vehicles, and it was common for pedestrians to use it to come and go.
When asked to comment on photographs of the area (Exhibits 1 and 2), he stated that the crack was in that condition around the time of the incident, that the crack had been there for a while, and over time it had worsened. He was unable to state when he first became aware of the condition of the crack. He said that the damage was primarily caused by a heavy dumpster traversing the area. He had reported the condition to Mr. Croughter when it was a hairline crack.
Mr. Pullum testified that his duties also included snow removal. On January 19 and 20, 2002, he worked overtime in order to assist in snow removal (Exhibit 5). He did not work on Monday, January 21, because it was a legal holiday. He explained that the first step was to clear the snow by shovel and plow and then salt the grounds to melt any remaining snow and prevent ice formation. The snowplow was stored in the parking lot, and when it was used the driver would start off at the top of the driveway and plow downward with the blade at an angle. According to Mr. Pullum, when the plow blade reached the flat part of the driveway it would “clang” against the pavement in the area of the crack. He stated that the snowfall of January 19, 2002, was addressed by his crew.
Mr. Pullum testified that he probably was the worker who cleared the driveway after the snowfall, and that he was the worker who inspected the grounds for ice patches and salted the driveway at 7:45 AM, on the morning of January 22, 2002. He added that runoff of water could occur, even after snow removal was performed properly.
The portions of the deposition testimony of Stanley Croughter, Superintendent of Buildings and Grounds, which were received in evidence, consisted of an explanation of the snow removal procedures and property maintenance followed by Buildings and Grounds Department and was consistent with Mr. Pullum’s testimony (Exhibit 7).
The portions of the deposition testimony of Elvert Miller, Chief of Campus Police, which were received in evidence, consisted of an explanation of relevant duties performed by Security and Public Safety (Exhibit 9). He testified that the responsibility for the parking lot and pavement was shared between his department and Buildings and Grounds Department. If something required immediate attention, including pavement conditions, it would be reported to Buildings and Grounds, verbally or by written work order, so that corrective action could be taken. At the discretion of the safety officer, these events were also entered into a logbook. He added that “there were no reports of pavement defects in the parking lot of building B.” On the day of the incident, after it had occurred, he viewed the area from the top of the driveway and found that it was clear and fit for pedestrian traffic.
Other than her own testimony, claimant did not offer testimony of any witness to the fall or to events that occurred in the area soon after the incident.
The defendant called Jose Garcia to testify. Mr. Garcia has been employed by Medgar Evers College as a Campus Police Office for 11 years. He was on duty the morning of the incident, assigned to patrol the area that included the parking lot. He testified that he remembered checking the parking lot area at about 7:00 AM, for snow, slush, and ice and found none. He had the authority to direct Buildings and Grounds to remove ice and snow, but on that day there was no need to do so.
He also recalled responding to an aided call from Lieutenant Davis, in which he was directed to go to the nurse’s office. A notation from Mr. Garcia’s memo book indicates that he responded to the call at 11:45 (Exhibit 12). When he arrived at the office, Lieutenant Davis was already there. He spoke to the claimant about the incident, filled out an incident report (Exhibit B), and remained at the office until EMS took the claimant to the hospital.
On the basis of the evidence adduced at trial, the dangerous condition upon which claimants would predicate liability is some combination of damaged concrete at a particular location where it would be likely to collect water which would freeze after a snowfall in a manner which would pose a danger to pedestrians if reasonable steps to remove the snow were not taken. Upon the record presented, neither the condition of the concrete, nor the adequacy of snow removal, standing alone, is sufficient to amount to a dangerous condition.
While Mr. Pullum’s testimony suggest that contact of a snowplow blade with the concrete and the use of a heavy dumpster in the area contributed to the formation of a crack, it does not follow that defendant created the confluence of conditions upon which a finding of liability could be premised, because the evidence at trial did not establish that defendant created or exacerbated the condition by its snow removal operations (see Salvanti v Sunset Indust. Park Associates, 27 AD3d 546).
“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” (Murphy v 136 Northern Boulevard Associates, 304 AD2d 540 [citations omitted]). “This standard must be applied with an awareness of the realities of the problems caused by winter weather” (Marcellus v Littauer Hospital Assn., 145 AD2d 680, 681 [citations omitted]). “A general awareness that snow and ice may accumulate or is present is insufficient to provide constructive notice of the injury-producing condition” (Cardinale v Watervliet Housing Authority, 302 AD2d 666, 667).
The defendant was required to take reasonable care, under the circumstances, to clear ice and snow from areas where pedestrian use is foreseeable (see generally PJI 2:111A.1). Mr. Pullum testified that he was aware of the possibility of water runoff and refreezing; he also testified that he inspected and salted the subject area just several hours before the incident. This was a reasonable course of action under the circumstances.
Claimants’ reliance on Figueroa v Lazarus Burman Associates (269 AD2d 215) is misplaced.
[3]
While the facts of that case are somewhat similar to the instant claim, the procedural posture was quite different. That decision concerned the reversal of a directed verdict in favor of a defendant responsible for snow removal in a parking lot. The result of that decision was simply to leave the determination of liability in the hands of the trier of fact, because the Appellate Division Court found that the evidence was such that “[i]t would not . . . be unreasonable for the jury to infer that the ice on which plaintiff slipped” was due to defendant’s negligence (id. at 217). It is implicit that the jury could also have inferred otherwise; the matter was remanded for a new trial. This Court, as the trier of fact, and upon consideration of the entire record, concludes that the claimant has not sustained her burden of establishing that the defendant is responsible for the condition which caused her injury.
Accordingly, the claim is dismissed.
All motions on which the court may have reserved decision or which were not previously determined are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.

July 21, 2006
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims




[2].References to “claimant” are to Veronica Lawrence.
[3].Claimants’ Proposed Findings of Fact.