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
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
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
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.
LET JUDGMENT BE ENTERED ACCORDINGLY.