The claim herein alleges that the claimant sustained personal injuries as
the result of two separate slip-and-fall accidents at facilities owned by the
State of New York and operated by the Department of Correctional Services.
Trial was held on January 26, 2006 and this decision addresses solely the issue
The claimant, James Moye, testified at trial that he first
arrived at Lyon Mountain Correctional Facility in August, 1999. There he was
assigned to perform maintenance work for a period of four months and was then
assigned to a school program designed to enable him to earn his GED. Classes
were held from 7:30 a.m. to 2:30 or 3:00 p.m. each weekday.
21, 2000 claimant exited his dormitory and walked to the building on the Lyon
Mountain campus where classes were held. Although claimant testified it had
snowed "a couple days before" it was not snowing as he walked to school although
it was cold and the ground was covered with snow and ice. Claimant testified
that conditions were slippery and that he witnessed several other inmates slip
and fall on their way to attend the school program.
Claimant attended his
assigned classes and was released along with other inmates to return to his
dormitory for lunch at 11:30 a.m. He testified that it was not snowing when he
exited the classroom building and that he did not observe any inmates or
correctional facility employees shoveling at that time. As he was walking back
to his dorm along the same route he had taken earlier in the day the claimant,
who was walking alone and wearing his State-issued boots, slipped and fell in
front of the "work control office". An inmate who had been walking behind the
claimant and apparently witnessed his fall went to seek assistance and Mr.
Tourville exited the work control office and came to where the claimant was
lying on the ground. The claimant informed Mr. Tourville that he had slipped
and fallen. A doctor was called to the scene and a splint was placed on
claimant's knee. Claimant was placed in a wheelchair and later taken to Clinton
Correctional Facility for X rays. According to the claimant his knee was too
swollen for X rays to be effective and he was later returned to Lyon Mountain.
Sometime thereafter the claimant was transferred to Franklin Correctional
Facility for physical rehabilitation of his injured knee. Exhibit B, an inmate
accident report from Lyon Mountain Correctional Facility, was received in
evidence and indicates the occurrence of a right-knee injury on November 21,
2000. The report relates in the space provided for the inmate's statement "I was
walking outside from school and my leg gave out slipping on snow".
second slip-and-fall incident involving the claimant occurred on January 24,
2002 at Franklin Correctional Facility. Claimant testified that he had not been
outside his dorm prior that day but that he left his dormitory and walked
approximately 2,000-3,000 feet to the mess hall for dinner that night.
Following dinner the claimant was walking with another inmate when he slipped
and fell returning to his dormitory. He testified that the ground was covered
with snow and ice, that he was using a cane and that he was wearing his
State-issued boots. Claimant was carried to the dormitory by other inmates and
later taken to the facility infirmary for treatment.
the claimant confirmed that he was confined at Franklin Correctional Facility
throughout the winter of 1998 - 1999 and at Lyon Mountain during the winter of
1999 - 2000. He testified that November 21, 2000 was a Tuesday and that he did
not attend his assigned school program on Monday, November 20, 2000 due to
"weather conditions". He acknowledged that school is regularly held Monday
through Friday. Mr. Moye related that he left his dormitory at approximately
7:30 a.m. Tuesday morning walking the same path on which he would later slip
and fall while returning to the dormitory for lunch. He testified that as he
walked to the school building that morning the path was slippery, that he was
concerned he would slip and potentially fall and that he observed other inmates
slip and fall while walking to school that morning. In describing the incident
which occurred as he returned to the dormitory the claimant stated that he was
walking alone looking straight ahead when he suddenly slipped and fell. Another
inmate walking behind the claimant allegedly witnessed his fall but the claimant
was unable to identify the inmate. After the claimant fell, Mr. Tourville came
out of his office and attempted to assist the claimant. Mr. Moye testified that
he informed Mr. Tourville that he had slipped and fallen.
With regard to
the incident at Franklin Correctional Facility on January 24, 2002, claimant
testified that he had not gone to either breakfast or lunch at the mess hall
On redirect Mr. Moye stated that inmates were required to walk
outside to travel from his dormitory at Lyon Mountain to the location where
school classes were held. Claimant rested at the conclusion of Mr. Moye's
testimony and the defendant made a motion to dismiss for failure to establish a
prima facie case. The Court reserved decision on the motion which is now
The defendant called James Tourville. Mr. Tourville testified that
he has been employed by DOCS for 18 years including as a plant utility engineer
at Lyon Mountain Correctional Facility from January 1993 until February 2004.
In 1999 Mr. Tourville became a plant utility engineer II in charge of all
maintenance activities at Lyon Mountain including insuring that all roads and
parking lots were plowed, salted and sanded. The clearing of ice and snow from
sidewalks at the facility was assigned to inmate work crews under the
supervision of the watch commander.
The witness testified that the claimant
herein had worked for him previously at Lyon Mountain and that he was familiar
with Mr. Moye whom he described as a good worker. Mr. Tourville's office was
located next to the walkway used by inmates to go to and from their programs
including the educational program in which the claimant was participating. The
witness did not observe claimant fall on November 21, 2000 but rather saw the
claimant lying on the ground through his office window. As he left his office
to provide the claimant assistance he noticed that wet snow was falling. Upon
arriving at the claimant's location he observed that the area where the claimant
was lying had been plowed, salted and sanded. He testified that it had snowed
prior to his arrival at the facility at approximately 8:00 a.m. and that the
crews had plowed, salted and sanded the area prior that day. He estimated that
his office is approximately 25 feet from the area where claimant fell.
Tourville identified Exhibit A as the snow removal policy in place at Lyon
Mountain in November, 2000. He also identified Exhibit C as a commander's log
for the 7:00 a.m. to 3:00 p.m and 3:00 p.m. to 11:00 p.m. shifts at Lyon
Mountain on November 21, 2000. According to the witness it was normal procedure
at the facility for the watch commander to record weather conditions at the
start of each shift. Exhibit C contains entries for the 7:00 a.m. to 3:00 p.m.
shift on November 21, 2000 indicating snow and a temperature of 30°. A
similar entry for the 3:00 p.m. to 11:00 p.m. shift references snow and a
temperature of 32° . Mr. Tourville testified that a wet snow was falling
at the time he first observed claimant on the ground outside his office and that
he had not received any complaints regarding the area where claimant fell
previously that day.
On cross-examination the witness clarified that the
area where the claimant fell was a roadway which his crews were responsible for
plowing, sanding and salting. He recalled that when he arrived to assist the
claimant water was blowing off the roof onto the ground around him and he
distinctly remembers wet snow falling at that time. Entries in the watch
commander's log regarding weather conditions are generally made only at the
beginning of each shift and he could not recall whether it was snowing at the
time that he arrived at Lyon Mountain around 8:00 a.m. on November 21,
Raymond Wright was called to the stand and testified that he has been
employed by the Department of Correctional Services for approximately 27 years
and that he worked at the Franklin Correctional Facility between June, 1999 and
While at Franklin Correctional Facility Mr. Wright was a
plant superintendent responsible for building and grounds maintenance at the
facility including snow removal. According to Mr. Wright Franklin Correctional
Facility had an unwritten snow removal policy in January 2002 pursuant to which
certain areas such as the administration building, perimeter roads and medical
areas were assigned first priority relative to snow removal. He described the
facility as encompassing in excess of 200 acres and 48 buildings and housing,
1,700 inmates. In January 2002 roads were plowed using six to seven
four-wheel-drive vehicles as well as dump trucks equipped with sanders. Regular
work hours were between 8:00 a.m. and 4:00 p.m. Monday through Friday.
Employees would be called in to perform snow removal on an overtime basis as
necessary during non-daylight hours.
Exhibits D and E were received in
evidence. Exhibit D is a report of overtime worked for Mr. Terry Linney dated
January 24, 2002 and approved or authorized by the witness on January 31, 2002.
The first portion of the report was completed by Mr. Linney and requests
payment for five hours of overtime incurred between 3:00 p.m. and 8:00 p.m. on
January 24, 2002. The reason stated for the overtime is "plow plus sand". Mr.
Wrights's authorization indicates "snow removal" as the reason for the overtime.
Exhibit E is a report of overtime worked for Howard J. Manealy dated January 24,
2002 which was authorized by the witness on January 31, 2002. The report
requests payment of a total of four hours of overtime incurred between 4:00 p.m.
and 8:00 p.m. on January 24, 2002. The reason stated for the overtime incurred
is "plow, sand". Mr. Wright states the reason for the overtime in his
authorization as "snow removal"
On cross-examination the witness confirmed that claimant was required to
walk outdoors to travel between F dorm and the mess hall and that although the
roadway used to travel between those two points is not on the snow removal
priority list it would be the next area cleared, sanded and salted after
priority areas were complete. He confirmed that although Exhibits D and E
indicate that two employees were performing snow removal during the afternoon
and evening of January 24, 2002 the records do not relate the specific areas
where their work was actually carried out.
The State is subject to the
same duty of care imposed upon all other landowners to maintain its property in
a reasonably safe condition (Basso v Miller
, 40 NY2d 233; Condon v
State of New York
, 193 AD2d 874). The State is not, however, an insurer of
the safety of its premises (Boettcher v State of New York
, 256 AD2d 882).
A claimant must, therefore, establish that the State either created the
dangerous condition which allegedly caused claimant's injury or had actual or
constructive notice of the condition and failed to exercise due care to remedy
it (Robinson v Albany Hous. Auth.
, 301 AD2d 997). The reasonableness of
the State's action is to be determined upon consideration of all the
circumstances including, in the instant matter, "an awareness . . . of the
problems caused by winter weather" (Marcellus v Littauer Hosp. Assn.
AD2d 680, 681). In this regard, a landowner may be found liable for a dangerous
condition created by the accumulation of ice or snow only when "an adequate
period of time has passed following the cessation of a storm to allow the party
to remedy the condition" (Russo v 40 Garden St. Partners
, 6 AD3d 420;
Ioele v Wal-Mart Stores
, 290 AD2d 614). While the mere failure to remove
all snow and/or ice is not actionable (Cardinale v Watervliet Hous.
, 302 AD2d 666; Solomon v Somerman
, 18 AD2d 696), liability will
be found where the landowner's snow or ice removal efforts create or exacerbate
a hazardous condition (Strauss v New York City Tr. Auth.
, 305 AD2d 160;
Rector v City of New York
, 259 AD2d 319) and it is demonstrated through
competent proof that the failure to properly remove accumulated ice or snow was
a proximate cause of claimant's injury.
The claimant has failed to sustain
his burden of proof. Claimant's testimony standing alone does not establish
that the State created a dangerous condition at Lyon Mountain Correctional
Facility on November 21, 2000 or at Franklin Correctional Facility on January
24, 2002 or that the State had actual or constructive notice of a dangerous
condition at either facility and failed to correct the situation within a
Claimant testified that he traversed without incident the
same path on his way to school at Lyon Mountain at approximately 7:30 a.m. on
which he later slipped and fell while returning to the dorm for lunch at 11:30
a.m. Claimant did not describe in detail the area where his fall occurred nor
did he specify the actual condition(s) which caused his fall (see
Leary v North Shore Univ. Hosp.
, 218 AD2d 686; see also
Heliodore v State of New York
, 305 AD2d 708). Additionally, although he
testified that he was concerned that morning as he walked to the school
building that he would slip and fall, and purportedly saw other inmates slip
and fall on their way to school, he did not allege that he or any other inmates
who fell advised defendant's employees of the allegedly slippery conditions or
requested remedial action. Claimant offered no proof at trial to establish when
the snow fell, how much snow was on the roadway, or how long it may have
remained there without being removed. Claimant thus offered no proof of the
State's actual or constructive notice of a dangerous condition.
noteworthy is the incident report (defendant's Exhibit B) prepared on November
21, 2000 and signed by the claimant which describes the happening of the
accident as follows: "I was walking outside from school and my leg gave out
slipping on snow." No mention was made of the icy conditions alleged but not
developed by claimant in his trial testimony.
Following his fall a fellow
inmate summoned James Tourville from the work control office which was nearby.
Claimant did not call Mr. Tourville as his witness. He was instead called by
defendant and testified that when he went to assist claimant on the morning of
November 21, 2000 wet snow was falling. He further testified that the area
where claimant was lying had been plowed, salted and sanded. This testimony is
the only evidence in the record describing the condition of the area of
claimant's fall since he (claimant) offered none on his direct case. On
cross-examination Mr. Tourville reiterated that wet snow was falling at the
time of claimant's accident and that water was blowing off the roof onto the
ground. Claimant's counsel did not question the witness regarding whether the
water blowing off the roof was a regular or an unprecedented event and the Court
may not speculate that the blowing water observed by the witness created a
dangerous condition known to the defendant for any appreciable period of time,
or that it contributed to claimant's fall. Mr. Tourville did not testify that
the water falling from the roof caused or created an icy surface condition in
that area of the roadway where the claimant's accident occurred.
wholly failed to establish the liability of the defendant with regard to the
November 21, 2000 accident. There is no proof that the defendant either created
a dangerous condition or had actual or constructive notice of a dangerous
condition and failed to remedy it within a reasonable time.
With regard to
the January 24, 2002 accident claimant, likewise, offered little if any
testimony regarding the conditions that evening outside the dining hall at
Franklin Correctional Facility. Claimant described the air temperature as cold
and alleged that there was snow and ice on the ground but offered no description
of the walkway in general or the specific area of the walkway where the accident
occurred. Claimant provided no details of the January 24, 2002 fall except
that it occurred after dinner while he was in the company of another inmate. The
inmate did not testify at trial and there is no proof other than claimant's own
generalized and non-specific description of conditions to sustain a finding of
negligence on the part of the State.
Upon this record the Court cannot
determine what, if anything, caused claimant, who was using a cane, to slip and
fall after leaving the dining hall. He recalled that it was not snowing when
he exited the mess hall following dinner and offered no proof that plowing,
sanding or salting was required on the path from F dorm to the mess hall. He
did not report having made any complaints concerning walking conditions upon
arriving at the mess hall for dinner.
Claimant's testimony thus failed to
establish a prima facie case of negligence in that he failed to describe any
specific condition which caused his January 24, 2002 fall, and failed to show
that the defendant either created a dangerous condition or failed to remedy a
dangerous condition of which it had actual or constructive
Accordingly, the claim is dismissed. The Clerk shall enter judgment
in accord with this decision.