New York State Court of Claims

New York State Court of Claims

BRUNELLE v. THE STATE OF NEW YORK, #2007-015-551, Claim No. 111522


Synopsis


Following a trial on liability in case involving a slip and fall accident on ice, claim was dismissed. Absent evidence that ice patch was caused by recurring condition, claimant failed to prove notice or that the accident was caused by the defendant's negligence.

Case Information

UID:
2007-015-551
Claimant(s):
TARA A. BRUNELLE
Claimant short name:
BRUNELLE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111522
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Poissant, Nichols, Grue & Vanier, P.C.By: Stephen A. Vanier, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 9, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The claim alleges that the defendant negligently maintained the surface of a parking lot adjacent to the field house on the campus of the State University of New York at Plattsburgh. It is alleged that as a result of defendant's negligence the claimant was caused to slip and fall thereby sustaining serious physical injuries. Trial of this matter was bifurcated by Order dated July 14, 2006 and the decision herein addresses solely the issue of liability.

On her direct examination the claimant testified that on February 13, 2005 she was at the field house on the State University of New York at Plattsburgh campus where her daughter was to be fitted for an ice-skating costume in the field house lobby. Claimant entered parking lot P-29, which is adjacent to the field house, at approximately 7:00 p.m. She parked her vehicle in one of the spaces located along the southern boundary of the parking lot as shown in Exhibits 12, 13 and 14. Exhibit 14 is a photograph in which, from right to left, the first parking space is occupied by a silver minivan, the second space by a silver Volkswagen, the third by a maroon colored SUV and the fourth and fifth spaces are occupied, respectively, by a white utility van bearing a Roto-Rooter logo and a blue automobile. Claimant testified that upon her arrival in the P-29 parking lot she parked her vehicle in either the space occupied by the Roto-Rooter truck or that occupied by the blue car which is parked in the first space to the left of the Roto-Rooter truck as depicted in Exhibit 14. The claimant exited her vehicle on the driver's side and walked along the length of the vehicle when, upon reaching the rear of the vehicle, she slipped and fell striking her right buttock and lower back on the pavement. Claimant attributed her fall to ice on the parking lot surface which was not visible due to generally dark conditions, describing the lighting as poor. According to the claimant, an acquaintance, Lesley Maynard, saw the claimant while she was on the ground and provided her assistance in standing. Claimant was treated at the Champlain Valley Physicians Hospital on the evening of February 13, 2005.

The day following the accident the claimant spoke by telephone to Brad Graves who she identified as an employee of the State University of New York at Plattsburgh. She informed Mr. Graves that she had been injured in the P-29 parking lot the previous evening and identified the area where her fall occurred.

On cross-examination Ms. Brunelle testified that she completed an accident report concerning the slip-and-fall in the P-29 parking lot on the evening of February 13, 2005. The accident report, received at trial as Exhibit 1, was completed by Officer Erich Pflanz and states, in part, "[s]he said that she slipped on black ice near her vehicle and landed on her buttocks. She said the ice was not visible and she did not notice it before she fell".

Claimant related that she did not experience any difficulty in operating her vehicle in the P-29 parking lot prior to her slip-and-fall and agreed that the Roto-Rooter truck depicted in Exhibit 14 is approximately four parking spaces to the left of the field house as most clearly depicted in Exhibit 12. When confronted with her examination before trial testimony in which she testified that she parked her vehicle approximately six spaces from the field house building claimant responded that to the best of her knowledge she parked in either the parking space occupied by the Roto-Rooter truck or the space immediately to the left of the truck occupied by the blue automobile as shown in Exhibit 14. Claimant did not recall what footwear she was wearing on the evening of February 13, 2005. She related that she had been to the field house on many occasions prior to the evening of her fall and that it was her usual practice to park in P-29 parking lot. She did not recall encountering ice or slippery conditions on the prior occasions when she had used the P-29 parking lot, except on those occasions when it was snowing.

On redirect examination claimant testified that although she does not recall the type of footwear she was wearing on the evening of February 13, 2005 it was her usual custom to wear weather-appropriate footwear during winter months. Claimant reiterated that she did not see the ice upon which she slipped prior to her accident due to inadequate lighting in the P-29 lot. She recalled that she noticed that the parking lot appeared icy as she was being helped across the lot to the field house following her fall and that the ice made walking on the parking lot surface difficult. With regard to the accident report completed on the evening of February 13, 2005 (Exhibit 1) claimant denies that she told Officer Pflanz that she fell on black ice and stated that she did not see the report until it was shown to her at her examination before trial.

On re-cross-examination the claimant again testified that she had difficulty walking from the scene of her fall to the field house because of ice in the parking lot which made walking difficult. She acknowledged her prior deposition testimony in which she had stated that she did not experience difficulty walking across the parking lot after her fall since she was being assisted by two other people and that she was not sure whether the individuals assisting her had encountered problems in walking across the parking lot.

The Court received in evidence portions of the examinations before trial of Bradley Graves, Kevin Soucia and Ronald Marbut. The claimant rested her case and the defendant moved to dismiss the claim for failure to establish a prima facie case. The Court reserved decision on the motion at trial.

The first witness presented by the defendant was Mr. Brad Graves who testified that he has been employed by the State University of New York at Plattsburgh since 1978 and has been in his current position of Assistant Director of the SUNY Plattsburgh field house since 1983. Mr. Graves testified that he is familiar with the P-29 parking lot adjacent to the field house although his duties do not include maintenance of the parking lot which is the responsibility of the University buildings and grounds crew. Mr. Graves testified that a men's hockey game was held at the field house on the evening of Friday, February 11, 2005. On Saturday, February 12, 2005, events were held beginning in the morning and included recreational skating in the afternoon and a men's basketball game that evening. On Sunday, February 13, 2005, the date of the claimant's accident, youth hockey practice was held at the field house in the morning followed by recreational skating in the afternoon and use of the field house by the Skating Club of the Adirondacks and the women's hockey team thereafter.

On cross-examination Mr. Graves acknowledged that the field house and the P-29 parking lot are used by the public on a regular basis. Responsibility for clearing parking lots of snow is assigned to the building and grounds crews. The witness testified that he parks his vehicle in the P-29 lot every day and that snow plowed from the parking lot would occasionally be piled against both a berm which runs parallel to the southern edge of the parking lot and also against the field house wall. According to Mr. Graves snow piled against the berm and field house building would "on occasion" melt and drain back into the parking lot ultimately turning to ice. On those occasions when he observed that the parking lot surface was slippery the witness did not notify the building and grounds crews as the condition of the parking lot was outside his area of responsibility.

On redirect examination Mr. Graves testified that he generally arrives at the P-29 parking lot between 7:30 and 8:00 a.m. each day. He parks as close to the field house building as possible and stated that the first three to four parking spots next to the field house buildings are sometimes slippery. In this regard the witness reviewed Exhibit A and testified that the area occupied by the first three formal parking spaces shown in the photo was the same area where he had observed slippery or icy conditions in the past.

On re-cross-examination the witness clarified that he cannot precisely identify the area where he experienced slippery or icy conditions when attempting to reconcile his previous testimony in which he variously stated that the first three or the first three to four parking spaces were subject to the slippery conditions described earlier. Mr. Graves reviewed Exhibit 12 and testified that the area where he had in the past observed ice form on the parking lot surface included, from right to left, the first, second and third formal parking spaces depicted in the Exhibit.

The defendant next called Ronald Marbut who testified that he has been employed by the State University of New York at Plattsburgh for the past 28 years, the last six years as a senior groundsman. Part of Mr. Marbut's responsibilities at the University involve snowplowing, including clearing the P-29 parking lot which he testified he plowed "on occasion". The manner in which the plowing was accomplished varied depending upon the number of parking spaces occupied by vehicles and would sometimes involve plowing snow into the corner near the field house staircase while at other times snow would be removed using a dump truck or back-blading snow away from the southern edge of the parking lot.

On cross-examination the witness stated that it was common to leave some snow next to the field house building and against the berm which parallels the southern edge of the P-29 lot. Mr. Marbut testified that prior to February 2005 snow left or pushed against the berm would "on occasion" melt back into the parking lot and, depending upon weather conditions, thereafter turn to ice. In reviewing Exhibit 14 Mr. Marbut clarified that snow melt from the snow piled against the berm would run onto the southern edge of the parking area making the parking lot surface slippery. When the witness observed ice having formed against the southern edge of the parking lot he would generally advise his supervisor of the condition. According to Mr. Marbut a crown in the center of the P-29 parking lot also caused water to accumulate along the edges of the parking lot, including the southern edge where the berm was located.

On redirect examination the claimant reviewed Exhibit 14, a photograph showing the parking spaces along the southern edge of the P-29 parking lot and stated that the area where he observed slippery conditions due to snow melt was within the spaces occupied by the Roto-Rooter truck depicted in the photograph and the red SUV parked immediately to the right of the Roto-Rooter truck.

Defendant next called Lesley Maynard who testified that she was an acquaintance of the claimant and that their daughters skated together for several years as part of the Skating Club of the Adirondacks. Ms. Maynard testified that on February 13, 2005 she left the SUNY Plattsburgh field house with her daughter at approximately 6:30 p.m, exiting the field house using a door which opens onto the P-29 parking lot where she had parked her vehicle earlier in the evening. As she exited the building, Ms. Maynard observed the claimant lying on her back in the parking lot asking for help. The witness marked on Exhibit B both the door by which she exited the field house and the spot in the parking lot where she first observed the claimant. According to Ms. Maynard she walked over to the claimant and helped or coached her to a standing position. The witness did not observe the condition of the parking lot surface in the area where the claimant fell and did not notice anything out of the ordinary, although she did observe that the parking lot had been plowed. According to the witness she experienced no problems in driving her vehicle into the parking lot upon arrival at the field house.

On cross-examination Ms. Maynard testified that when she first observed the claimant she was not within the area occupied by the parking spaces but rather was "behind the cars". Claimant was asking for assistance and Ms. Maynard helped her to stand and then assisted her into the field house building. During this time the witness was focused on assisting the claimant and did not notice conditions in the parking lot other than as stated in her direct testimony.

On redirect examination the witness testified that although she was focused on assisting the claimant, she experienced no problems or difficulty in walking either to the claimant or in assisting the claimant across the parking lot and into the field house following her fall. Nor did she experience any difficulty in walking across the parking lot later that evening when returning to her car, which was parked in the P-29 lot. Ms. Maynard did recall noticing that the claimant was wearing "leather loafer type shoes" which she described as black colored "nurses shoes" made of light, soft leather. Ms. Maynard was at the time wearing what she described as "big Columbia boots".

Defendant's final witness was Ms. Marybeth Weeden who testified that she also was familiar with the claimant through her daughter's participation in the Skating Club of the Adirondacks. Ms. Weeden exited the field house using the same door utilized by Lesley Maynard and noticed the claimant in the parking lot with Ms. Maynard. According to Ms. Weeden the claimant was located halfway between the rear of the cars parked along the southern edge of the P-29 lot and the field house building. The witness identified the claimant's location as "behind the blue car" as shown in Exhibit B.

According to Ms. Weeden the claimant's car was parked in the space occupied by the blue automobile depicted in Exhibit B or in the space immediately next to the blue car on the left as one looks at Exhibit B. The witness walked to the claimant's location and assisted the claimant, together with Lesley Maynard, back to the field house building. The witness did not recall any difficulty in walking from the field house doorway exit to the claimant's location in the parking lot or in assisting the claimant back from the parking lot into the field house building. Thereafter Ms. Weeden again exited the building into the P-29 parking lot where she walked to the claimant's car and drove the car through the parking lot and around to the front of the building. Ms. Weeden did not recall any difficulties in walking to the claimant's car or in driving the vehicle through the parking lot and around to the front of the building. The witness's cross-examination was unremarkable.

At the conclusion of Ms. Weeden's testimony the defendant offered in evidence Exhibit D, portions of the transcript of an examination before trial of Erich Pflanz. The defendant renewed its motion to dismiss and thereafter rested its direct case. The defendant's motion to dismiss is denied.

In order to establish a prima facie case of negligence for injuries sustained in a slip and fall accident the claimant was required to establish that the defendant either caused the alleged dangerous condition or had actual or constructive notice of its existence (Kivlan v Dake Bros., 255 AD2d 782 [1998]).

Claimant does not contend that the defendant caused the icy condition by virtue of its snowplowing activities (see DiGrazia v Lemmon, 28 AD3d 926 [2006]) but, rather, argues in her post-trial brief that the defendant's actual knowledge of a recurring dangerous condition forms the basis for liability. In order to establish liability for a recurrent condition, it must be demonstrated that the defendant "was aware of an ongoing and recurring unsafe condition which regularly went unaddressed" (Kivlan v Dake Bros., supra, 255 AD2d at 783 [citations omitted]). So long as the defendant has " 'actual knowledge of the tendency of a particular dangerous condition to reoccur, he is charged with constructive notice of each specific recurrence of that condition' " (id. at 783, quoting Columbo v James River, II, Inc., 197 AD2d 760, 761 [1993]; see also Lowe v Spada, 282 AD2d 815 [2001]; Irizarry v 15 Mosholu Four, LLC, 24 AD3d 373 [2005]; Roussos v Ciccotto, 15 AD3d 641 [2005]; Loguidice v Fiorito, 254 AD2d 714 [1998]). However, proof which establishes no more than a "general awareness" that outdoor areas become wet or icy during inclement weather is insufficient to establish constructive notice of the specific condition causing the injury (Solazzo v New York City Tr. Auth., 6 NY3d 734, 734 [2005], citing, Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]; see also Rivera v 2160 Realty Co., L.L.C., 4 NY3d 837 [2005]; Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). It has therefore been held that absent evidence as to the origin of a patch of ice, the mere fact that the proof adduced at trial established that icy patches had been noticed in a parking lot weeks before the accident was insufficient to establish a prima facie case of negligence (Simmons v Metropolitan Life Ins. Co., 84 NY2d 972 [1994]). "[G]eneral awareness that an icy condition might exist is not sufficient, without more, to constitute notice of a particular condition" (Stoddard v G.E. Plastics Corp., 11 AD3d 862, 863 [2004]).

Here, the claimant's proof at trial established no more than a general awareness that snow plowed from the parking lot and piled on a nearby berm would occasionally drain into the parking lot and create an icy condition. Critically absent from the proof adduced at trial was any evidence from which it could be inferred that the ice upon which the claimant slipped was caused by a recurring condition or that such a condition caused the accident (cf. Zanki v Cahill, 2 AD3d 197 [2003], affd 2 NY3d 783 [2004]). The only testimony at trial regarding the issue was that of Brad Graves and Ronald Marbut who both stated only that snow piled along the berm would "on occasion" melt and create a slippery condition in the general area of claimant's fall. No proof was offered, meteorological or otherwise, as to the weather conditions on the day of the accident or in the days preceding it. While claimant may arguably have established a recurring condition generally, the suggestion that the ice patch upon which she slipped was caused by that condition is based upon nothing other than pure speculation (see Robinson v Trade Link America, ___AD3d ___, 2007 NY Slip Op 03116 [2007]; 2007 WL 1080414 [2007]; Richer v State of New York, 31 AD3d 943 [2006]; Cardinale v Watervliet Hous. Auth., 302 AD2d 666 [2003]).

The premise for liability advanced by the claimant requires a finding that snow piled on the berm adjoining the southern boundary of the subject parking lot melted and later turned to ice. Such a finding requires proof that prevailing conditions including temperatures, temperature fluctuations and snowfall accumulation at or near the time of the event at issue were likely to cause such a result. Absent such evidence the claimant's proof at trial was inadequate to sustain a finding that she was caused to slip and fall as the result of a recurring condition of which the defendant had actual or constructive notice.

Moreover, inconsistencies in the testimony at trial leave considerable doubt as to the condition of the parking lot on the date of the accident. The claimant twice testified that the parking lot appeared icy and that the icy surface of the P-29 lot made walking to the field house following her fall difficult. However, both Leslie Maynard and Marybeth Weeden testified that they experienced no difficulty either in walking across the parking lot to reach the claimant or while assisting her in reaching the field house. Nor did Ms. Maynard experience any such difficulty when exiting the field house and crossing the P-29 parking lot later that evening. Likewise, Ms. Weeden testified that she had no trouble in walking to the claimant's car or in driving the vehicle through the parking lot following the claimant's fall.

Further, although the claimant testified that she could not recall what footwear she was wearing on the evening of February 13, 2005 Ms. Maynard recalled that the claimant was wearing what she described as "leather loafer type shoes" or "nurses shoes".

These issues of credibility, together with the absence of proof concerning climatological conditions on and before the day at issue prevent a finding that the ice upon which the claimant slipped and fell resulted when snow piled along the berm adjoining the southern edge of the P-29 parking lot melted and refroze. As a result, the Court finds that the claimant failed to prove that her injuries were caused by a recurring dangerous condition.

There is no proof that any individual employed by the defendant was aware of the existence of the ice upon which the claimant slipped and fell. In fact, the claimant did not notice the ice prior to her fall and, as related in the accident report completed that evening, there is evidence that the claimant described the condition as "black ice" which was "not visible". Proof of constructive notice of the ice upon which claimant slipped and fell is also absent in that there is no evidence of the length of time the icy condition existed.

Lastly, although the claimant alleged that poor lighting contributed to the happening of the incident there was no proof to establish that the lighting in the P-29 parking lot was inadequate on the evening in question.

Based on the foregoing, the Court concludes that the claimant failed to prove by a preponderance of the credible evidence that the accident was caused by the negligence of the defendant in failing to remedy an unsafe condition of which it had actual or constructive notice. As a result, the claim is dismissed.

Let judgment be entered accordingly.


May 9, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims