New York State Court of Claims

New York State Court of Claims

Ferguson v. THE STATE OF NEW YORK, #2006-041-502, Claim No. 107272


Synopsis


Inmate alleged that State permitted ice and snow to remain in a recreation yard, causing inmate to fall. Court dismisses claim after trial for failure to prove notice of an allegedly dangerous condition.

Case Information

UID:
2006-041-502
Claimant(s):
GREGORY FERGUSON
Claimant short name:
Ferguson
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107272
Motion number(s):

Cross-motion number(s):

Judge:
Frank P. Milano
Claimant’s attorney:
Gregory FergusonPro Se
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Saul Aronson, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 5, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

On November 13, 2001, while an inmate at Clinton Correctional Facility, claimant Gregory Ferguson alleges he slipped and fell while in a keeplock recreation yard and, as a result, injured his back.
Claimant testified he observed snow in the recreation yard on November 11, 2001, and reported it to a recreation yard officer, who, claimant alleges, stated the situation would be addressed. Claimant further testified that he observed the same conditions the following day, and again reported it to the same officer, who again, claimant alleges, said the matter would be addressed. Claimant, when asked if he knew the officer to whom he spoke on November 11, 2001 and November 12, 2001, indicated that he knew the officer but could not remember his name.
Claimant further testified he made a grievance on November 12, 2001, concerning his observations of snow and ice in the recreation yard on November 11, 2001 and November 12, 2001. Claimant’s Exhibit 1, a document entitled “Inmate Grievance Complaint,” dated November 12, 2001, was received in evidence. Interestingly, notwithstanding its printed date of November 12, 2001, the document is hand dated “12-7-2001" on the line next to the “Grievant Signature” line, which bears the claimant’s name printed, not signed. The testimony of claimant was limited to his assertion “I grieved the matter” on November 12, 2001, and there was no testimony concerning to whom the form was given or with whom it was filed, or if and when the claimant affixed his printed name next to the handwritten date of "12-7-2001."
Claimant further testified that after he entered the recreation yard on November 13, 2001, he slipped and fell, hitting his head and back on ice on the ground and hurting his back. Claimant stated he was unable to rise, was placed on a stretcher, taken to the facility hospital and had X-rays taken. Claimant testified that he then walked back to his cell. He further indicated he underwent one month of physical therapy in 2002 and has taken prescribed medication for back pain, which he has endured since the fall. No medical records were introduced into evidence. There was no testimony presented from any witness to claimant’s fall.
Upon cross-examination, claimant conceded that an inmate is permitted to decline to go into the recreation yard on any given day. He additionally conceded that notwithstanding his expressed concerns of November 11, 2001 and November 12, 2001, he did not decline access to the recreation yard cages on November 13, 2001. He also allowed that he was “discharged” from physical therapy after one month of treatment in 2002.
The defendant’s single witness, correction officer Ken Ramsey, testified he was a recreation officer on November 13, 2001, responsible for the recreation yard in which claimant claims to have fallen. Officer Ramsey indicated that an inmate housed where claimant Ferguson was housed on November 13, 2001 was required to affirmatively ask, on a daily basis, for access to the recreation yard. He further testified the recreation yard was inspected daily, and that if any problems with ice or snow were found, maintenance staff would shovel, salt or sand the area needing attention. He testified these protocols were followed on November 13, 2001. He also testified inmates would not be permitted into the recreation yard if there were existing ice and snow problems.
"Having waived its sovereign immunity, the State is subject to the same rules of liability as apply to private citizens" (Preston v State of New York, 59 NY2d 997, 998 [1983]). "It is beyond dispute that landowners and business proprietors have a duty to maintain their properties in reasonably safe condition" (Di Ponzio v Riordan, 89 NY2d 578, 582 [1997]; Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 876 [3d Dept 2004]). However, "[w]hile the State clearly owes a duty to claimants and others entering upon its property to maintain it in a reasonably safe condition under the circumstances, it is not obligated to insure against every injury which may occur" (Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]).
The State's liability for a slip and fall is premised upon proof that it either created the alleged dangerous condition or knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New York, 188 AD2d 918, 919 [3d Dept 1992]).
Where there is insufficient proof that the defendant created or had actual notice of the condition, liability turns on the issue of whether defendant had constructive notice. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]).
The claimant has failed to demonstrate by a preponderance of the credible evidence that defendant was negligent with respect to the condition of the recreation yard on November 13, 2001.
Claimant failed, in the first instance, to prove that a dangerous condition existed. He testified only that there was snow and ice in the recreation yard, which is certainly expected during winter weather at Clinton Correctional Facility. Further, claimant allegedly fell in a recreation yard, rather than a walkway or sidewalk, during winter weather conditions. The law does not require defendant to remove all the snow and ice from each and every foot of each and every recreation yard in the penal system during winter weather.
The Court finds that “[c]laimant failed to show that the surface was abnormally dangerous or differed significantly from the condition of any outdoor field in winter” (Condon v State of New York, 193 AD2d 874, 875 [3d Dept 1993]).
Even assuming the existence of a dangerous condition, claimant failed to prove that defendant had notice of the specific condition contributing to his fall. In particular, claimant failed to show that the conditions he testified as having reported on November 11, 2001 and November 12, 2001 were the same conditions, in the same location, which caused his fall on November 13, 2001. It is well-settled that “a general awareness that a dangerous condition may be present is legally insufficient to constitute notice of a particular condition” (Petty v Harran Transp. Co., 300 AD2d 290, 291 [2d Dept 2002]).
Further, it strains credibility to believe that claimant, an apparent daily user of the recreation yard, was unable to identify by name the recreation yard officer to whom he allegedly reported snow and ice conditions in the recreation yard on November 11, 2001 and November 12, 2001, and with whom he recounted having specific discussions. Moreover, despite the concerns allegedly expressed on November 11, 2001 and November 12, 2001 concerning recreation yard conditions, claimant, far from declining to use the recreation yard, affirmatively requested to use the recreation yard on November 13, 2001. Additionally, the record is not clear if or when claimant’s grievance complaint regarding the alleged snow and ice conditions, dated November 12, 2001, was provided to defendant prior to December 7, 2001. Finally, no testimony of any individual who observed the fall of the claimant was provided.
Defendant’s witness, Officer Ramsey, testified the defendant had established procedures to observe and address snow and ice conditions in the recreation yard, and employed these procedures on November 13, 2001.
All of these factors reflect negatively on claimant’s credibility concerning his reported attempts to have put defendant on notice of the dangerous condition he claims existed in the recreation yard on November 13, 2001.
Accordingly, the Court finds that claimant failed to establish by a preponderance of the credible evidence that defendant maintained the recreation yard in a negligent manner.
The claim is dismissed. Let judgment be entered accordingly.


September 5, 2006
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims