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
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
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
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
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
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,
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.
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
that show the asphalt walkway
which runs in front of dorms A, B and C.
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
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.