New York State Court of Claims

New York State Court of Claims

ANKUM v. STATE OF NEW YORK, #2007-018-565, Claim No. 103757


Synopsis


Claim is dismissed. Claimant presented no evidence that the State was negligent in the snow removal, nor did he show that the State knew or should have known of the dangerous condition. Defendant is afforded a reasonable time after a temperature fluctuation to exercise due care to remedy the dangerous condition. Here, at most, only a couple of hours had passed, and this fails to support the inference that Defendant breached its duty of care.

Case Information

UID:
2007-018-565
Claimant(s):
ERIC ANKUM
Claimant short name:
ANKUM
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103757
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
ERIC ANKUMPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: EDWARD F. McARDLE, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 29, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks damages for injuries he sustained on January 18, 2001, after falling on an icy sidewalk while an inmate at Cape Vincent Correctional Facility (hereinafter CVCF). He claims the State was negligent by not attending to the slippery conditions.

Claimant testified that on January 18, 2001, he was housed in the C-2 Dormitory at CVCF and had been incarcerated at the facility since September 2000. Claimant prepared a diagram[1] of the facility layout to assist the Court. Claimant had been to the mess hall early that morning and then attended his program from 8:00 to 11:00 a.m. He had no intention of going out again that day because of the weather and “hazardous conditions.”[2] One of the facility’s policies is to randomly obtain urine samples from the inmates and test for banned substances. The inmates are not told in advance of the testing, and Claimant was taken to the infirmary for such a procedure around 6:00 p.m. that evening.

A correction officer escorted Claimant and others to the infirmary but the inmates, when so directed, returned to their dorms unattended. According to Claimant, the correction officer took him from C-2 to other dorms to gather other inmates also scheduled for testing so they did not take the direct route from C-2 to the infirmary. When it was time to return to his dorm, Claimant testified he left the infirmary between 6:15 and 6:30 p.m., and took the only walkway he was allowed to use to return to C-2. He was walking very carefully because the walkway was slippery. When Claimant was in front of Dormitory A-1, he fell and hurt his lower back because of the way the ice had frozen there was a little slope. Claimant reported his fall when he returned to his dorm and the correction officer sent him back to the infirmary.

At the infirmary, Claimant complained of pain while sitting and twisting. Nurse Dangerfield provided Claimant with Motrin and an analgesic balm, and told him to rest. The next day, Claimant went to work at the mess hall but the correction officer sent him to the infirmary because of his back pain. The nurse on duty noted[3] that he was bent over, moving slowly. His mid-back muscles were firm when he sat. The treatment was the same as the previous evening, and Claimant was directed to follow-up. Claimant returned later that same day and asked to be relieved from his work assignment but the nurse refused. On January 22, 2001, Claimant went back to the infirmary still complaining of back pain, bent over, and moving slowly. His medication was continued, and he was scheduled to see the doctor who admitted him to the infirmary unit. He was discharged on January 24, 2001, with prescription medication and exercises. X-rays of his back were negative and the pain had improved with back exercises. He was restricted from work for two days and from use of the gymnasium for two weeks.

Claimant went to the infirmary again on January 26, 2001, to get other medications and exercises from the doctor. He was still having trouble lying flat on his left side. A doctor’s appointment was made.

Claimant had a doctor’s appointment on January 29, 2001. The medical records indicate he asked for a back board for his bed, inquired about physical therapy and an exercise program. His condition had not improved so he was told to return in one week if he did not improve.

Claimant continued seeking treatment and was sent for physical therapy which began on February 15 and ended on March 8, 2001. The records indicate Claimant was improving and that an authorization for four more visits was requested; however, Claimant testified that all physical therapy was discontinued due to transportation issues. Claimant continued with medications and the use of a heating pad. He had an MRI but the results are not in the medical records in evidence.

After his release from custody, Claimant worked as a manual laborer laying pipe for drainage work. He testified that recently he began his own power- washing business because he could not do heavy manual labor anymore. He has to hire people to do some of the power-washing.

Claimant submitted the watch commander’s log for January 18, 2001.[4] At 4:30 p.m. that afternoon, Officer K. Shaughnessy fell on ice in front of the administration building. The housing unit log was also contained in that exhibit and it reflected Claimant’s fall at 6:44 p.m.

On cross-examination, Claimant was asked why the report of inmate injury from January 18, 2001, indicates he fell in front of the mess hall, not near dorm A-1 as shown on Claimant’s diagram.[5] He said it was all the same area. Claimant acknowledged that he had taken the same walkway earlier that day, but said the snow piles on each corner of the walkway by the infirmary and Dorm A had melted some that afternoon and then refroze leaving the walkway icy.

The State called Correction Officer David Bowhall. He was the Fire and Safety Officer for CVCF from August 1988 through September 1990. He was a correction officer at the facility at the time of Claimant’s accident. He said the procedures for snow and ice removal were still the same. The facility uses sand and salt, snowplows, and snowblowers on the walkways. The inmate crews do this work during the 7:00 a.m. to 3:00 p.m. shift, but can be called out at other times as needed. He identified two photographs[6] that show the asphalt walkway which runs in front of dorms A, B and C.[7]

Correction Officer Bowhall estimated the distance is about 65 yards from the northside of the mess hall door to Dormitory A; the dormitory is around the corner. The administration building where Officer K. Shaughnessy fell earlier in the day, is approximately 100 to 125 yards and around the corner from where Claimant said he fell in front of Dormitory A.

Claimant argues that the State created the dangerous condition by piling the snow near the walkway, or that the State had notice of the condition after Correction Officer Shaughnessy fell earlier that day yet failed to remedy the icy walkway.

The State owes a duty to those in its institutions to protect them from the foreseeable risk of harm (see Condon v State of New York, 193 AD2d 874). As part of that duty and as a landowner, the State must maintain its property in a reasonably safe condition in light of all the circumstances (Basso v Miller, 40 NY2d 233; Miller v State of New York, 62 NY2d 506, 513; Preston v State of New York, 59 NY2d 997, 998). Yet, the State is not an insurer and the mere happening of an accident does not alone warrant an inference of negligence (see Matter of Boettcher v State of New York, 256 AD2d 882; Mochen v State of New York, 57 AD2d 719). Rather, the State’s negligence must be established by a preponderance of the credible evidence establishing that Defendant either created or had actual or constructive notice of the condition which caused Claimant’s fall and failed, within a reasonable time, to remedy the condition causing Claimant’s injuries (see Herman v State of New York, 63 NY2d 822; see also Gordon v American Museum of Natural History, 67 NY2d 836; Piacquadio v Ricene Realty Corp., 84 NY2d 967). Consideration must be given to the realities of living in a climate with winter weather (see Marcellus v Littauer Hosp. Assn., 145 AD2d 680).

Claimant presented no evidence that Defendant created a hazardous condition by its snow removal efforts or that Defendant’s snow removal was negligent, or caused, or exacerbated the icy condition (Keese v Imperial Gardens Assoc. LLC, 36 AD3d 666; Glick v City of New York, 139 AD2d 402). Nor did Claimant establish that Defendant had actual or constructive notice of the icy conditions is front of the A-1 Dormitory where he fell. Although Correction Officer K. Shaughnessy fell on ice approximately two hours before Claimant on January 18, he fell at a different location. His fall was not notice to the State of a dangerous condition in front of A-1 Dormitory. Nor is Claimant’s testimony that he told the correction officer that escorted him to the infirmary about the icy condition on that walkway notice of the dangerous condition where he fell. Defendant’s general awareness that icy conditions might have existed in some areas of the facility is not sufficient to establish constructive notice of the icy condition that caused Claimant to fall (Solazzo v New York City Tr. Auth., 6 NY3d 734, 735; DiGrazia v Lemmon, 28 AD3d 926, 927).

Even if Defendant should have had notice of the icy condition, Claimant himself testified that the temperature dropped very quickly that day; it became very cold after the 4:00 p.m. shift change. Where there is a quick drop in temperature causing the icy condition, Defendant is afforded a reasonable time after such a temperature fluctuation to exercise due care to remedy the dangerous condition (Marcellus, 145 AD2d at 681). Here, at most, only a couple of hours had passed, and this fails to support the inference that Defendant breached its duty of care.

The claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.

March 29, 2007
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1].Contained in Exhibit 1.
[2].All quotes are from the trial transcript.
[3].Claimant’s ambulatory health record is Exhibit D.
[4].Exhibit 5.
[5].Exhibit 1.
[6].Exhibits C-1 and C-2.
[7].See diagram in Exhibit 1.