New York State Court of Claims

New York State Court of Claims

WILSON v. STATE OF NEW YORK, #2007-037-502, Claim No. 109148


Synopsis


Case Information

UID:
2007-037-502
Claimant(s):
NICOLE WILSON
1 1.The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
WILSON
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109148
Motion number(s):

Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Sarles, Frey & JosephBy: Gary A. Joseph, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Gregory P. Miller, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 26, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant, Nicole Wilson, seeks to hold the Defendant liable for injuries she sustained on February 23, 2003 when she slipped and fell on a patch of ice in the main quadrangle area on the campus of State University College at Buffalo (SUCB)[2] located in the City of Buffalo, New York.


Trial of the issues were bifurcated by a court order filed April 25, 2007, and this decision addresses solely the issue of liability.
Claimant testified that she had been a full-time student at SUCB since the fall of 2001 and resided off-campus with her family. On Sunday, February 23, 2003, at approximately 6:30
P.M.
, Claimant left her home to drive to the college to meet with friends to study for an examination. She described the weather conditions as clear with little or no precipitation, but she encountered ice on the windshield of her car and the streets were slushy and wet. Claimant also indicated that she experienced rain and icy conditions upon her return home from work late the previous evening.

At approximately 7:00
P.M
. Claimant entered the Rockwell Road entrance to the campus and proceeded westerly to visitors parking lot C near Cleveland Hall where she parked and walked in a northerly direction from the parking lot onto a concrete walkway which passes through a covered archway in Cleveland Hall into the main quadrangle area.[3] She was wearing a down coat, gloves and winter boots with thick ribbed soles and was carrying a backpack weighing between thirty and thirty-five pounds. Claimant described the surface of the parking lot as wet and slushy with no accumulation of snow, the walkways were icy and she did not see any evidence of salt on the surface of the area where she fell. It was dark and the quad area was illuminated by artificial overhead lighting (see Defendant’s Exhibit G).
Once in the quad area, Claimant walked to the library looking for her friends and, not finding them there, she reversed direction to walk to Cassety Hall, which is located across the quad on the northwest side of the student union building. As she walked in a westerly direction parallel to a large fountain[4] located in front of the library she slipped and fell on the concrete surface, allegedly sustaining left wrist and elbow injuries. Claimant was able to regain her footing and continue on to Cassety Hall where she met one of her friends and studied for about ninety minutes before leaving the campus. There were no witnesses to the accident and Claimant did not report the incident to college police officials until Tuesday, February 25, 2003 (Claimant’s Exhibit 6). Claimant reported at that time and later testified at trial that she slipped on a “patch of ice” located between the fountain and a storm drain on the south side of the fountain.[5]

On cross-examination, Claimant admitted that although she was able to see white ice on the concrete surface of the quad area where she fell, she did not choose an alternate route or report the condition to anyone at the college. It is her claim that the Defendant is liable for not properly treating the surface with salt or warning her of a dangerous condition.

Claimant called Terry Harding, Director of Campus Services at SUCB since 1995, to testify on her behalf. Mr. Harding explained that he oversees the management of physical services on the campus and is responsible for all outside grounds maintenance, including snow and ice removal. He stated that prior to this incident he issued a written snow and ice removal policy on December 3, 2002, which outlined the general snow removal strategy and established priorities for the order in which campus areas were to be addressed (Defendant’s Exhibit E). The normal procedure was to remove the surface snow and then apply ice melting agents as necessary. He also confirmed that as a high pedestrian traffic area, the main quadrangle would routinely be one of the priority areas for snow and ice removal.

Mr. Harding testified that in February, 2003 the grounds department essentially worked in three shifts, Monday through Friday, with the “normal” work day (first shift) commencing at 6:00
A.M
. and concluding at 2:30
P.M
. On weekends employees would be called in to work by their supervisor, William Smock, based upon his assessment of weather related conditions. Faculty, staff and constituents were encouraged to notify the customer service office or campus police if they encountered surface conditions requiring attention. There were no weather related calls logged in at the college on February 22-23, 2003 and, more particularly, no complaints regarding the quad area where Claimant fell (Defendant’s Exhibit D).

Under cross-examination, referring to the photograph in evidence as Claimant’s Exhibit 1, Mr. Harding stated that there are several hundred similar storm drains on the campus and there are no special rules or procedures for maintaining them during winter weather conditions.

Claimant next called William Smock, the SUCB grounds supervisor, to testify. Mr. Smock corroborated Mr. Harding’s testimony that SUCB owns and operates snow removal equipment, as well as equipment to spread salt, and the employees of his department followed the written snow removal policy in the course of clearing the campus of snow and ice on February 23, 2003.

Mr. Smock testified that the employees in his department work regular shifts during the week (Monday through Friday) and are not normally scheduled to work on weekends except for garbage removal. If a winter weather event occurs over a weekend, he relies on call-in lists to mobilize grounds staff during those two days. On weekends, Mr. Smock is often notified of adverse weather related surface conditions by campus police, but early in the morning of Sunday, February 23, 2003, he found icy conditions at his home from an overnight storm and immediately called his list of workers and traveled to the campus arriving at approximately 6:00
A.M
. Unable to reach any of the workers on the list, he mobilized the two employees who were already on the campus for garbage detail and himself to operate the equipment for snow/ice removal and salt application. Together, Smock and the two garbage detail workers, accumulated over twenty- three hours of overtime on that day (Defendant’s Exhibit C). He stated that the roads, parking lots and walkways were cleared of ice and treated with salt by 1:30
P.M
. and all surfaces were clear and wet when he left the campus at 2:30
P.M
. The next group of grounds employees were scheduled to report for work at midnight Sunday to prepare the campus for Monday classes.

On direct examination, Mr. Smock testified that he personally plowed the main quad area[6] and treated the surface with salt on February 23, 2003, and then inspected the area before leaving the campus that afternoon. On cross-examination he confirmed that he did not receive any reports from campus police or anyone else on that day regarding icy surface conditions at the college, including the main quad area.

Defendant provided climatological data covering the period of February 21-23, 2003 for SUCB, located at 1300 Elmwood Avenue, Buffalo, New York, which was stipulated into evidence as Defendant’s Exhibits A and B. Exhibit A is a Site Specific Weather Analysis Report prepared by CompuWeather, forensic meteorologists, which states that there was no precipitation on February 21, 2003 and on February 22, 2003 (Saturday) precipitation in the form of rain occurred between approximately 6:45
A.M
. and 5:30
P.M
., followed by a mixture of freezing rain and snow that fell through the remainder of the evening. Approximately 1.03 inches of liquid equivalent precipitation fell on that day, which included a trace (less than 0.1 inch) of snow and ice. The report notes that the temperature was above freezing from 2:45
A.M.
to 5:30
P.M
.

The report indicates that on February 23, 2003 precipitation in the form of freezing rain, occasionally mixed with sleet, continued from the previous day until approximately 7:40
A.M.
and then changed to snow which fell throughout the day until about 9:15
P.M
. Approximately 1.5 inches of ice and snow fell on that day and the temperature ranged from 32° to 14°(all temperature references are to Fahrenheit).

Exhibit B consists of certified copies of meteorological records on file in the National Climatic Data Center for Buffalo, New York, which basically confirm the accuracy of the weather data relied upon by CompuWeather in its analysis.

The State of New York is under a duty to maintain its property in a reasonably safe condition under prevailing circumstances (Basso v Miller, 40 NY2d 233 [1976]; Preston v State of New York, 59 NY2d 997 [1983]). The State is not, however, an insurer against all potential injuries and the mere occurrence of an accident does not establish liability, instead it must be affirmatively established by competent evidence of a breach of a duty of care (Killeen v State of New York, 66 NY2d 850 [1985]; Clairmont v State of New York, 277 AD2d 767 [2000], lv denied 96 NY2d 704 [2001]; Mochen v State of New York, 57 AD2d 719 [1977]). 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 [1988]). Even then, however, the failure of a landowner to remove every patch of ice and snow from a walkway following a storm does not, without more, constitute negligence (Cardinale v Watervliet Hous. Auth., 302 AD2d 666 [2003]). In addition, Defendant is entitled to a reasonable amount of time at the conclusion of a storm or other weather event to take corrective action (Boyko v Limowski, 223 AD2d 962 [1996]; Downes v Equitable Life Assur. Socy. of U.S., 209 AD2d 769 [1994]).

Claimant urges the Court to find that SUCB employees somehow created the accumulation of ice upon which Claimant fell by failing to adequately respond to the adverse weather conditions on February 23, 2003. However, there is no evidence that the Defendant had actual notice of the icy condition at the site of the accident. Nor is there sufficient evidence to justify a finding of constructive notice. There was no factual evidence establishing the length of time the ice was present on the quad surface and no expert testimony to describe the effect of climatological conditions upon the formation of ice or to establish that the ice formed as a result of the type and amount of precipitation which fell that day coupled with prevailing conditions and temperatures. The lack of evidence connecting the alleged icy condition of the quad area to meteorological events occurring on or before February 23, 2003 precludes a finding of constructive notice on the part of Defendant. “A property owner is not liable for an alleged hazard on its property involving snow or ice unless it created the defect, or had actual or constructive notice of its existence.” (Murphy v N. Blvd. Assoc., 304 AD2d 540 [2003]). 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 [2004]). Nor was there any showing that in the process of clearing snow and ice, Defendant created or exacerbated a dangerous condition (Richer v State of New York, 31 AD3d 943 [2006]; Gentile v Rotterdam Sq., 226 AD2d 973 [1996]).

While Ms. Wilson’s fall was unfortunate, she bears the burden of proving that the State breached a duty of care by a fair preponderance of the credible evidence (Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191 [1976]) and she has failed in that burden. The evidence instead supports that Defendant had a satisfactory snow and ice removal plan spelled out in detail by Terry Harding credibly affirming that such procedures were in place on February 23, 2003, and William Smock confirmed that he personally treated the surface of the quad area with salt a few hours before Claimant’s fall. There is no proof that any individual employed by the Defendant was aware of the existence of the patch of ice upon which Claimant slipped and fell and there is no evidence of the length of time the alleged icy condition existed. Moreover, there were no reported complaints or prior similar accidents at the site of this incident.

Lastly, although Claimant alleged that poor lighting may have contributed to the happening of the accident there was no proof to establish that the lighting in the quad area was inadequate on the evening in question.

Therefore, after carefully considering all of the proof, this Court must find that Claimant has failed to establish, by a preponderance of the evidence, that Defendant 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 her burden of establishing Defendant’s negligence and this claim is hereby dismissed.

LET JUDGMENT BE ENTERED ACCORDINGLY.



July 26, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[2].Referred to in the claim as Buffalo State College.
[3]. The quad area is formed by Cleveland Hall on the south, Campbell Student Union on the west, Bulger Communication Center on the north, and Butler Library on the east. A map of the campus is in evidence as Defendant’s Exhibit F and a copy of the Exhibit with markings by Claimant showing the route she followed is in evidence as Defendant’s Exhibit FF.
[4]. The fountain is shown on a sketch in evidence as Defendant’s Exhibit G and in photographs in evidence as Claimant’s Exhibits 1, 2, 3, and 4.
[5]. Claimant’s Exhibit 1 is a photograph of the fountain area taken during the first week of March, 2003, which has been marked by Claimant to show the location of her fall. Claimant testified that this photograph depicted approximately the same conditions as on the date of the accident.
[6]. The Court notes that Mr. Smock previously testified at a deposition held on May 16, 2006 that he did not plow the quad area but did spread salt on the surface that day (see Claimant’s Exhibit 7, page 40).