New York State Court of Claims

New York State Court of Claims

LORENZEN v. THE STATE OF NEW YORK, #2007-010-043, Claim No. 110482


Synopsis


Claimant slip and fall, icy stairway, SUNY Purchase campus. No liability, no notice.

Case Information

UID:
2007-010-043
Claimant(s):
PAUL LORENZEN
Claimant short name:
LORENZEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110482
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
THE LYNCH LAW FIRM, LLPBy: James S. Lynch, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy:
Dian Kerr McCullough, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 6, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks damages for injuries he allegedly sustained in a slip and fall accident on February 27, 2004 while he was a student residing on the campus of the State University of New York at Purchase, New York (SUNY). The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Claimant testified that he used a particular outdoor stairway several times a day en route from his apartment on campus to the classroom building and the food service facility (Ex. 4). In February 2004, claimant observed that over a foot of snow had been piled next to this stairway. During the month, the pile became smaller, but remained higher than the concrete curb adjacent to the stairs. Claimant recalled that, on February 27, 2004, the weather was cold and clear and there was little snow on the ground other than the pile next to the steps. In the month prior to his accident, claimant only saw “maybe a little” ice on the stairs (T:19).[1]

On the evening of February 27, 2004, claimant returned to his apartment by descending the stairway. He did not see any ice at that time. Shortly thereafter, at approximately 11:30 p.m., he left his apartment intending to go to the food service facility. On this excursion, claimant ascended the same stairway he had used a half hour earlier. Claimant testified that when he first approached the steps, he looked down and then looked forward. There was no ice on the walkway leading up to the steps and he did not anticipate any ice on the steps. According to claimant, when he reached the third or fourth step of the middle landing, his right foot slipped and then his left foot gave way causing him to fall. When he reached the ground, claimant realized that he had slipped on ice. Claimant concluded that the snow piles adjacent to the stairway had melted and then refroze causing a thin layer of ice to form on the steps. Claimant also maintains that the four lights next to the stairway were not operational. There were no witnesses to claimant’s accident and no one responded to his calls for help. After his fall, claimant walked back to his apartment.

George Halliday, the grounds supervisor at SUNY testified on behalf of defendant. As part of his duties, he supervised eight to nine employees who were responsible for snow removal. He stated that he was familiar with the stairway in issue and that the employees assigned to the area had been instructed to clear the steps of snow and then to spread salt on the area. Prior to the accident, Halliday had not received any complaints about the stairway and there were no records indicating ice on the steps. According to Halliday, the four to five inch curb adjacent to the steps prevented the cleared snow from melting on to the steps.

Conrad Gosset, a meteorologist, testified to the weather conditions in February 2004 and including the day of the alleged accident. On February 1, 2004, there had been 10 inches of snow. There were several days in the week prior to the accident where the temperature rose into the 40's and fell back to the 20's in the evening.

The deposition of David Phillips, an electrician supervisor at SUNY, was received into evidence. He was responsible for maintenance of the light fixtures next to the stairway. Phillips reviewed his maintenance files and reported that he had not received any notification within one day of February 27th of any problem with the lights and there had been no repair orders for that location.

It is well established that “[t]he State just as any other party *** is responsible in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived” (Flaherty v State of New York, 296 NY 342, 346). The State, however, is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851). Negligence must be proven (see Mochen v State of New York, 57 AD2d 719) and the reasonable standard of care must be applied with an appreciation of the problems caused by winter weather (see McGowan v State of New York, 41 AD3d 670; Pappo v State of New York, 233 AD2d 379). The mere failure to remove all snow and ice from walkways does not constitute negligence (see Wheeler v Grande’Vie Senior Living Community, 31 AD3d 992), unless it is shown that defendant’s efforts increased the hazard (see Nowaski v City of New York, 19 AD3d 467).

In the instant case, claimant failed to establish by a preponderance of the credible evidence that defendant either created the complained of icy condition or had actual or constructive notice of it (see Rodriguez v Notre Dame Academy of Staten Island, 274 AD2d 509; Gustavsson v County of Westchester, 264 AD2d 408). Notably, the steps were used prior to claimant’s accident, without incident, and there were no recorded complaints of ice. Additionally, claimant’s assertion that defendant’s manner of snow removal caused the complained of condition is purely speculative (see Pala v D. Braf, Ltd., 284 AD2d 382 [“(t)he assertion that *** defendant’s negligent shoveling created the ice upon which (plaintiff) slipped, is nothing more than speculation and conjecture”]). Similarly, claimant’s contention that defendant was negligent in its maintenance of the steps is wholly unsupported by the record (see Gentile v Rotterdam Sq., 226 AD2d 973 [no negligence where a thin layer of snow remained and ice was not cleared from sidewalk]). In sum, the Court finds that claimant’s version of his alleged accident is not worthy of belief.

Accordingly, defendant’s motion to dismiss, upon which decision was reserved, is now GRANTED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 110482.


September 6, 2007
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1].References to the trial transcript are preceded by the letter “T.”