New York State Court of Claims

New York State Court of Claims

OLMSTEAD v. THE STATE OF NEW YORK, #2007-009-172, Claim No. 107383


Claimant failed to establish that the State either created a dangerous condition or had actual or constructive notice of a dangerous condition and this claim was therefore dismissed.

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):

Claimant’s attorney:
BY: Thomas Shannon, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
May 7, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


In this claim, claimant seeks to recover for personal injuries allegedly sustained by him on December 2, 2002, when he slipped and fell on snow and ice while working in the courtyard at Auburn Correctional Facility. A bifurcated trial was held on January 22, 2007, and this decision therefore addresses the issue of liability only.

Claimant was the sole witness to testify in support of his claim. He testified that he was employed by Wilkens Construction, which had been hired on an emergency basis to excavate old sewer lines and replace them with new sewer lines in the courtyard (main yard) at Auburn Correctional Facility. Claimant was an equipment operator. He ran the excavator at the job site, describing the excavator as a “backhoe on tracks”[1].

On the morning of December 2, 2002, claimant drove a backhoe into the facility and after inspection, drove the backhoe into the courtyard to the job site. He testified that he walked from the backhoe to a pickup truck which was parked approximately 40 to 50 feet away from the excavation site to get tools and the keys for the excavator. Claimant further testified that as he approached the pickup truck, he slipped and fell, injuring his right leg.

Claimant testified that snow and ice caused the fall, and that it had snowed the night before the accident, with an accumulation of approximately 1½ to 2 inches. He testified that he fell at approximately 8:00 a.m. on the morning of December 2, 2002. At the time he fell, the area in which he fell had not been cleared of snow, and had not been treated with any deicing compound or materials.

After he fell, claimant continued to work and he did not report this accident to anyone. He never filed a complaint, either to his employer or to officials at Auburn Correctional Facility. He testified, however, that his leg then started to bother him in the middle of his work week, and progressively got worse during the week, and that he eventually decided to seek medical assistance.

Peter J. Snow, an employee of the Design and Construction Group of the Office of General Services, was the only witness to testify on behalf of the defendant. Mr. Snow testified that he was an associate superintendent of construction at Auburn Correctional Facility, and that he was, for all intents and purposes, an “inspector” of this work project. Mr. Snow confirmed that Wilkens Construction was hired on an “emergency” basis. Mr. Snow, however, did not witness this accident, nor did he receive any complaint, either oral or written, from the claimant following his fall.

Mr. Snow testified that it was the practice and custom of the contractor to maintain the construction area. He also testified, however, that it was the responsibility of the maintenance staff at the facility to remove accumulated snow and ice in the courtyard in areas where inmates, guards, and contractors would travel. A truck was available which could be used by maintenance staff for snow removal, and this truck was equipped with a spreader that could be used to disperse a mixture of salt and sand.

When it acts as a property owner, the State is held to the same standard of care as any private landowner (Basso v Miller, 40 NY2d 233; Preston v State of New York, 59 NY2d 997). The State must act as a reasonable person in maintaining its 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 (Miller v State of New York, 62 NY2d 506). Such standard of care applies to the premises within prison facilities (Bowers v State of New York, 241 AD2d 760; Condon v State of New York, 193 AD2d 874). The State, however, is not an insurer, and negligence may not be inferred solely from the happening of an accident (Tripoli v State of New York, 72 AD2d 823; Mochen v State of New York, 57 AD2d 719). To prevail on his claim, a claimant must therefore establish that a hazardous condition existed, that the State either created the condition or had actual or constructive notice of it, and that it failed to take reasonable steps to eliminate, or at least neutralize, the dangerous condition within a reasonable time (Miller v City of Syracuse, 258 AD2d 947). Constructive notice applies if a defect is visible and apparent, and existed for a sufficient period of time for the defendant to discover and remedy the condition before the accident occurred (Gordon v American Museum of Natural History, 67 NY2d 836).

In claims involving an accumulation of ice and snow, the duty to exercise reasonable care “must be applied with an awareness of the realities of the problems caused by winter weather,” and “[t]hus, there must be evidence that the presence of the snow or ice created a dangerous condition which defendant knew or in the exercise of reasonable care should have known existed” (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681).

In this particular matter, there is no allegation that employees at Auburn Correctional Facility somehow created the accumulation of snow and ice upon which claimant fell. Furthermore, there is no evidence whatsoever that the State had either actual or constructive notice of a dangerous condition. A general awareness that a snowy or icy condition might exist is not sufficient, without additional evidence, to establish notice of a particular condition (Stoddard v G.E. Plastics, Corp., 11 AD3d 862).

Therefore, after carefully considering all of the testimony, this Court must find that claimant has failed to establish, by a preponderance of the evidence, that the State either created a dangerous condition, or that it had either actual or constructive notice of such a dangerous condition. Accordingly, claimant has failed to satisfy his burden of establishing defendant’s negligence, and this claim must be, and hereby is, dismissed.


May 7, 2007
Syracuse, New York

Judge of the Court of Claims

[1]. Unless otherwise indicated, all references and quotations are taken from the Court’s trial notes.