New York State Court of Claims

New York State Court of Claims

HERNANDEZ v. THE STATE OF NEW YORK, #2006-028-006, Claim No. 102197


Synopsis


Claimant, a prison inmate, failed to prove that the location where he fell and broke his ankle was in a dangerous condition or that the State had notice of any hazard which it had a duty to correct.

Case Information

UID:
2006-028-006
Claimant(s):
PEDRO HERNANDEZ
Claimant short name:
HERNANDEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102197
Motion number(s):

Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
PEDRO HERNANDEZ, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Geoffrey B. Rossi, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 8, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
At trial of this action, held at Elmira Correctional Facility, Claimant testified[1]
that on February 8, 2000, at Elmira Correctional Facility, he was injured when he slipped on snow and ice that had not been removed from the walkway he used while at work in the facility kitchen. He reported for work at approximately 6:00 a.m. that morning and was returning to the building after taking a break at 9:00 a.m. As he recalled it, the last time there had been any ice and rain was approximately two weeks earlier.
Claimant stated that he was about ten feet from the building when he fell. He was shown
Exhibits 1A, 1D, photographs of a doorway and the area in front of it and confirmed that they showed the location of his accident. When asked if the photographs fairly and accurately depicted the location at the time of the accident, he stated that there was more snow when he fell, covering even the area that appears to be clear concrete in the pictures. Exhibit 1A shows a building doorway with an irregular area directly in front of the door that is clear of snow. The cleared area appears to be approximately twice as wide as the doorway and to extend out from the building at least five or six feet. Around that cleared area, the ground is covered with packed snow. Exhibit 1D focuses on the portion of the clear area that is most distant from the doorway, where a drain is located. Both photographs have arrows drawn on them that point to the snow on the far side of the drain along with a notation "area slipped".
Claimant estimated that there were approximately six inches of snow at the time of his fall. He stated that when he was picked up after the accident, he saw that he had fallen on some clear ice. The ice was extremely hard and approximately four inches thick, and there was a slight amount of snow on top of the ice. On cross-examination, Claimant stated that he had worked at the kitchen for several days prior to the accident and had gone in and out of the doorway on several occasions each day when he took his breaks.

Claimant, was immediately taken to the infirmary and then transferred to an outside hospital. He was told that he would have to wear a cast, because the ankle was broken in "five or six places," or have surgery. He elected to wear a cast, which went from his toe to just below his knee. He wore this cast for 45 days. He was then given a plastic boot cast which, he testified, he wore until February 2001, and was assigned to have physical therapy.

Peter Buzetti, the plant supervisor at Elmira Correctional Facility, testified for Defendant. He stated that there was a policy in place to respond to any report of unsafe ice and snow that was reported to them. As needed, inmates would be directed to use a "bobcat" to clear the ice and/or snow.

Also testifying for Defendant was Correction Officer Daniel Leonard. At the time in question, he was assigned to food service area at Elmira Correctional Facility. He recalled Claimant. He stated that when workers were allowed to take a break, most of them remained inside but those who wanted to smoke were permitted to go outside. On the day Claimant was injured, Officer Leonard was in charge of the inmates who had remained inside, but he recalled Claimant coming in, limping, with the assistance of another inmate. He agreed with Claimant that it was not snowing on the day of the accident, but he could not recall how long it had been since the last snow.

Defendant's final witness was Correction Officer Robert Emmick, who served as the fire and safety officer at Elmira Correctional Facility. He stated that it was the responsibility of the Watch Commander to make sure that ice and snow were removed from walkways, and he would be called in when there was a problem. He was informed of Claimant's accident and went to the location that same day. At approximately 11:45 a.m., he took the photographs placed in evidence as Exhibits 1A and 1D.[2]
He confirmed that the doorway area shown in the photographs was the way it appeared on the day in question when he was called to investigate Claimant's accident.
Where the State acts in a proprietary capacity as a landowner, it has a duty to maintain its land in a reasonably safe condition (
Preston v State of New York, 59 NY2d 997; Basso v Miller, 40 NY2d 233), and that duty extends to those in the State's institutions. This duty requires that the State take every reasonable precaution to protect individuals on its property, but the State is not an insurer against any injury which might occur (Killeen v State of New York, 66 NY2d 850). Consequently, the fact that an accident occurs does not establish negligence; for liability to attach, Claimant must prove that the State breached its duty of care to him (Mochen v State of New York, 57 AD2d 719). With respect to individuals who are injured when falling on ice and snow, the standard of care must be applied with appreciation of the problems caused by winter weather, and Claimant must prove by competent evidence that the presence of snow or ice created a dangerous condition that the State knew of or should have known existed and that there was reasonable opportunity to correct the condition (Condon v State of New York, 193 AD2d 874; Marcellus v Littauer Hosp. Assn., 145 AD2d 680; 1 NY PJI 3d 2:111A).
Although there is no doubt that Claimant fell and suffered serious injury at the time and location alleged, the photographic evidence makes it clear that he did not have to go onto or even particularly near the packed snow in order to take his break and smoke a cigarette. Although the dimensions of the cleared area in front of the doorway were not given, there would be sufficient room for several people to stand safely on dry pavement. Consequently, Claimant failed to prove by a preponderance of the credible evidence that a dangerous condition existed at the location of his fall or that any negligence on the part of the State was a proximate cause of his fall. The Chief Clerk is directed to enter judgment in favor of Defendant, dismissing the claim.

Let judgment be entered accordingly.



February 8, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] Claimant testified through an interpreter.
[2] Emmick's handwritten notation is dated "2/7/00," the day before the accident. The Unusual Incident Report made out in connection with the incident states, however, that Officer Emmick was called to the scene to investigate and took pictures of the yard where the accident occurred. Officer Emmick testified that he had never before had occasion to visit or investigate that particular location. The Court concludes that his written notation on the photographs was in error. In any event, since all witnesses agreed that there had been no change in the weather for several days and no new snow on the 8th, the pictures would show the general condition of the area even if they had been taken a day earlier.