New York State Court of Claims

New York State Court of Claims

STUART v. THE STATE OF NEW YORK, #2007-038-106, Claim No. 110700


Synopsis



Case Information

UID:
2007-038-106
Claimant(s):
ROSE A. STUART
Claimant short name:
STUART
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110700
Motion number(s):

Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
ANDERSON, MOSCHETTI & TAFFANY, PLLCBy: David J. Taffany, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Kevan J. Acton, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 28, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks to recover for injuries she sustained when she fell and struck her head in the employee parking lot of the Gideon Putnam Hotel (hereinafter “the Gideon Putnam”) on December 26, 2004. The liability phase of the trial of this claim was conducted on February 28, 2007 in Albany, New York. Claimant presented her testimony and the testimony of: (1) Bruce Maceinas, her boyfriend; (2) Gideon Putnam employee Eric L. Groff; (3) Gideon Putnam employee James Freebern; (4) New York State Department of Transportation (hereinafter “NYSDOT”) employee James Lawya; and (5) New York State Parks and Recreation employee Jay Downing. Defendant presented the testimony of New York State Parks Police Officer John C. McCabe. Numerous photographic and documentary exhibits were received into evidence. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
On Sunday, December 26, 2004, claimant drove her car to the Gideon Putnam, which is located on the grounds of the Saratoga Spa State Park in Saratoga Springs, New York. She parked in the Gideon Putnam employee parking lot, and proceeded into the Gideon Putnam to work her 6:00 a.m. to 2:00 p.m. shift as a short-order cook. Prior to the end of her shift, Bruce Maceinas, claimant’s boyfriend of 27 years, arrived at the Park in a separate vehicle, parked next to the employee parking lot, and exercised his dog. At approximately 1:50 p.m., he walked over to claimant’s vehicle and started it to warm it up. At that time, there was a dusting of approximately an eighth of an inch to a half inch of snow on the ground in the parking lot. Although there was no testimony that it was snowing at the time of claimant’s fall, a “Storm Log” maintained by NYSDOT at a facility that was located between one quarter and one half of a mile from the Gideon Putnam indicated that dry snow had begun to fall in the vicinity of the Gideon Putnam at 11:00 that morning.

At approximately 2:00 p.m., Maceinas observed claimant walking toward the employee parking lot. When “she was halfway to the car in the parking lot, her feet just went out in front of her and she fell directly back” onto the ground (T:17).[1] The back of claimant’s head struck the pavement with a “very loud bang” (T:18). As claimant lay on the pavement, Maceinas rushed immediately to her and put his hand under the back of her head to check for bleeding. As he brushed snow away from underneath her head, Maceinas noticed that there was ice under her head. At no time during his testimony, however, did Maceinas state that he had seen claimant step and slip on ice.

At trial, claimant had no first-hand recollection of the events of that day. The transcript of claimant’s examination before trial (EBT), conducted on March 29, 2006, was received in evidence as Defendant’s Exhibit O. At that time, claimant testified that she did not think that there had been any snow in the Gideon Putnam employee parking lot when she arrived shortly before 6:00 in the morning, and from what she remembered, the pavement in the Gideon Putnam employee parking lot was clear. When she left the Gideon Putnam at the end of her shift, there was a light dusting of snow. James Freebern, a Gideon Putnam employee, testified that he could not recall the condition of the Gideon Putnam employee parking lot when he arrived for work at approximately 5:50 a.m. on the day of claimant’s fall. Very shortly after claimant’s fall, Freebern generally observed “ice and a little bit of snow,” which he indicated was noticeable in the grassy part of the parking area (T:92). Neither party called any other witness who personally observed claimant’s slip and fall.

The NYSDOT Storm Log recorded snow and ice events requiring remediation by NYSDOT in Saratoga Springs in 2004-05. The Storm Log indicates that light rain and one half inch of snow fell on December 19, 2004, and light rain and icy conditions were observed on December 22 and 23, 2004. A National Oceanic and Atmospheric Administration (NOAA) Climatological Data report for December 2004 recorded the following precipitation totals for the “Saratoga Springs 4 SW” station: (1) 0.02 inches on December 19 and 20, 2004; (2) no recording on December 21, 2004; (3) 0.01 inches on December 22, 2004; (4) 0.10 for December 23, 2004; (5) no recording for December 24 or December 25, 2004; and (6) a trace of precipitation on December 26, 2004. No evidence was adduced at trial as to the location of the Saratoga Springs 4 SW station in relation to the Saratoga Spa State Park. The NOAA Climatological Data report also reported that the Saratoga Springs 4 SW station experienced a high temperature of 56 degrees Fahrenheit on December 23 and 24, 2004, with temperatures thereafter remaining below freezing until the time of claimant’s fall. A diary compiled by the Maintenance Division of the Saratoga Spa State Park in December 2004 states that: (1) there was a “little rain freezing” and employees “sprayed ice” on December 22, 2004; (2) it was “cool them [sic] real warm” and “rain” on December 23, 2004, and that an employee “sanded” on that day; and (3) December 24, 2004 was “cold dry, no snow on the ground yet!!” (Defendant’s Exhibit D). The diary contains no entries for December 25 and 26, 2004.

The credible testimony of Jay Downing, an employee in the Maintenance Division at the Saratoga Spa State Park, established that the State Park is responsible for ice and snow removal at the Gideon Putnam parking lots, including the parking lot in which claimant fell. When questioned about maintenance procedures in effect in December 2004, Downing testified that maintenance staff would “come in every day, and depending on what the weather was, we [maintenance staff] would go out and evaluate what we need to do, and basically, we do a check depending on the weather conditions of every parking lot and every roadway” (T:139). If roadways needed to be treated, maintenance staff would clear off snow with plows and spread sand and/or salt, depending upon the location of the roadway. However, the State Park maintenance staff did not work on Saturday or Sunday, December 25 and 26, 2004, and no snow and ice removal was done in any of the parking lots at the State Park that weekend. Downing further testified that in the past, Gideon Putnam staff members have contacted the Maintenance Division or the Park Police to report conditions in its parking lots that required treatment, and that there was no indication that any such calls were received on December 25 or 26, 2004.
DISCUSSION

The parties waived opening and closing statements during the trial on February 28, 2007, and their arguments were presented to the Court in post-trial memoranda. The sole theory of liability stated by claimant is that she stepped and slipped on a pre-existing sheet of ice that was beneath a dusting of snow, and that defendant was negligent in having failed to remove that underlying ice from the parking lot.

The basis for the State’s liability for a claimant’s slip and fall on the State’s property due to icy conditions has been stated as follows:

While the State clearly owes a duty to claimants and others entering upon its property to maintain it in a reasonably safe condition under the circumstances, it is not obligated to insure against every injury which may occur (see, Boettcher v State of New York, 256 AD2d 882). Tempered with “an awareness of the realities of the problems caused by winter weather” (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681), it is well settled that liability may be imposed upon the State if it can be shown that it had actual or constructive notice of the hazardous condition that caused the fall (see, Piacquadio v Recine Realty Corp., 84 NY2d 967)


(Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]). At the liability phase of this “slip and fall” claim, claimant must demonstrate the existence of a dangerous condition, that the dangerous condition was a proximate cause of her fall, and that defendant either created the dangerous condition or had actual or constructive notice of the dangerous condition. Here, because there was no evidence that the State created or had actual notice of a dangerous condition, claimant asserts that the State had constructive notice of the alleged icy condition in the Gideon Putnam employee parking lot. Claimant must therefore demonstrate that the icy condition that caused her fall existed, and that it was visible and apparent for a sufficient period of time prior to her fall to allow defendant to discover it (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; DiGrazia v Lemmon, 28 AD3d 926, 927 [3d Dept 2006], Iv denied 7 NY3d 706 [2006]; Olmstead v State of New York, UID #2007-009-172, Claim No. 107383, Midey, J. [May 7, 2007]).

The burden rests upon claimant to establish her claim by a preponderance of the credible evidence (see Racz v State of New York, UID # 2007-030-004, Claim No. 109495, Scuccimarra, J. [Feb. 13, 2007]; Santiago v State of New York, UID # 2007-044-003, Claim No. 109131, Schaewe, J. [Jan. 10, 2007]). Claimant attempts to lessen this burden of proof by application of the Noseworthy doctrine (see Noseworthy v City of New York, 298 NY 76 [1948]). While the Noseworthy doctrine may be applied in cases in which an amnesiac plaintiff cannot recall the events that led to his or her injury (see Schecter v Klanfer, 28 NY2d 228 [1971]), the doctrine may not be invoked “[i]n the absence of expert evidence establishing a loss of memory and its causal relationship to defendant’s fault” (Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 335 [1986]; see Boyd v Hall, Ltd., 307 AD2d 624, 625 [3d Dept 2003]; Menekou v Crean, 222 AD2d 418, 419 [2d Dept 1995]). Here, claimant did not offer such expert evidence, and thus, the Noseworthy doctrine may not be applied.

At the threshold, it must be noted that there was a troubling lack of direct proof that claimant slipped on ice. Claimant did not remember her fall, and offered no testimony that she had stepped on ice. Her EBT testimony indicated that the Gideon Putnam employee parking lot was clear when she went into work on the morning of her fall (Defendant’s Exhibit O, at 10). Although Maceinas testified that he saw “her feet go out in front of her” (T:18), and that he saw ice beneath her head as she lay on the ground after her fall, he did not state that he saw her slip on ice, nor did he identify any patch of ice that caused her fall. Similarly, a written statement given by Maceinas to the State Park Police two days after claimant’s fall states that there was snow in the parking lot, but does not mention the presence of any ice. Accordingly, the Court is hard-pressed to find that the preponderance of the evidence demonstrates that claimant slipped on ice.

Even assuming arguendo that claimant had proved that her slip and fall was caused by ice, claimant’s argument that defendant had constructive notice of the alleged sheet of ice in the Gideon Putnam employee parking lot is not supported by a preponderance of the evidence. The evidentiary basis for claimant’s allegation that the ice existed for a significant period of time is the lack of precipitation in the few days preceding her fall (see Claimant’s Post-Trial Memorandum, at 3). However, there was no evidence of any complaints or reports of individuals slipping on icy conditions at any location within the employee parking lot during any of the several days prior to claimant’s fall (compare Kozak v Broadway Joe’s, 296 AD2d 683, 686 [3d Dept 2002]). Maceinas’ limited testimony about the condition of the ice, without any description of the nature or quality of the ice, does not enable the Court to determine that the ice had been present for a sufficient period of time to allow defendant an opportunity to remedy the dangerous condition (compare Saunders v Bryant’s Towing, 27 AD3d 992, 994 [3d Dept 2006] [ice that caused plaintiff to fall “had been packed down over time”]). Further, although the NOAA Climatological Data report indicates that it was unseasonably warm (56 degrees Fahrenheit) on December 24, two days before claimant’s fall, the Maintenance Division diary states that there was not yet snow on the ground on December 24, and thus, the Court cannot infer that the alleged icy condition was caused by a thaw and re-freeze (compare Kozak v Broadway Joe’s, supra at 685). While the weather and maintenance records received into evidence indicate that there had been rain and icy conditions in the proximity of the Gideon Putnam on December 22 and 23, 2004, the State Park maintenance diary reflects that State Park maintenance personnel treated the icy conditions on those dates. Moreover, even if defendant could be ascribed with a general awareness that the weather conditions might lead to an accumulation of ice in the general area, such knowledge is not sufficient to charge defendant with constructive notice of the patch of ice upon which claimant allegedly slipped (see Martin v RP Assoc., 37 AD3d 1017, 1017-1018 [3d Dept 2007]). In sum, the lack of precipitation for several days before the accident, without more, is insufficient to persuade the Court by a preponderance of the credible evidence that an ice patch existed for any sufficient period of time prior to claimant’s fall so as to permit a finding of constructive notice. Accordingly, the Court must conclude that defendant lacked constructive notice of the alleged dangerous condition, and thus, that the State is not liable to claimant.
Finally, because claimant does not allege that she slipped on newly fallen snow or ice that formed during the storm that began on December 26, the “storm-in-progress” rule argued by defendant does not apply.

In sum, notwithstanding the able efforts of claimant’s counsel, the claim must be dismissed due to the failure to prove by a preponderance of the credible evidence that defendant created or had actual or constructive notice of the dangerous condition that allegedly caused claimant’s injuries.
CONCLUSION
It is the conclusion of this Court that defendant is not liable to claimant for her injuries, and the claim must be dismissed. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim. Any motions not previously ruled upon are hereby DENIED.

Let judgment be entered accordingly.


September 28, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims




[1]. All references to the trial transcript are designated by “T”.