New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2007-041-502, Claim No. 111843


Claim for injuries suffered in a fall is dismissed due to the failure to prove the existence of a dangerous condition and, further, due to claimant’s conduct constituting a superseding act severing any causal link between defendant’s alleged negligence and claimant’s injuries, thereby becoming the sole proximate cause of her injuries.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
THE ROTHSCHILD LAW FIRM, P.C.By: Martin J. Rothschild, Esq.
Defendant’s attorney:
New York State Attorney GeneralBy: Dennis Acton, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 2, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


On December 19, 2005, Elizabeth Anne Williams (claimant), then a student at the State University of New York at Albany (SUNY), while proceeding to a final examination, slipped and fell in a campus parking lot, fracturing her ankle. The parking lot, alternately referred to at trial as the State parking lot, the State Quad parking lot, the State Gold parking lot or the student parking lot will hereafter be referred to simply as the parking lot.

The facts, largely, are not in dispute. On Friday, December 16, 2005, approximately 1.1 inch of snow fell in Albany, necessitating the 15 parking lots at SUNY be plowed. Timothy Reilly, the SUNY grounds manager, responsible for all outside grounds maintenance at the campus, including snow removal, arrived at the campus that morning at 3:00 a.m. At 6:00 a.m. that day he assigned Brian Wimble of his staff to plow the parking lot in question.

Testifying credibly, Mr. Reilly indicated the parking lot was plowed that morning, and detailed monitoring all of the snow removal being performed throughout the campus that morning by various members of his staff, his usual custom. Mr. Reilly described that in campus parking lots a center driving lane would be plowed to within a safe and appropriate distance of the bumpers of cars parked to the left and right of the parking lot driving lane. That the parking lot had been plowed in such a fashion was corroborated by several witnesses, including the claimant, each testifying as to the condition of the parking lot three days later, December 19, 2005, the day of claimant’s fall.

These witnesses described snowbanks around the parking lot perimeter, plowed driving lanes within the parking lot and swaths (the Court’s terminology) of between 12-24 inches of unplowed snow on either side of the parking lot driving lane, between the edge of the plowed driving lane driving surface and the edge of bumpers of cars parked to the left and right of the center driving lane.

No precipitation fell on Saturday, December 17, 2005, with Albany County Airport, located 4.5 miles from the SUNY campus, reporting a high temperature of 35º (all temperature references are to Fahrenheit). Similarly, no precipitation fell on Sunday, December 18, 2005, with Albany County Airport reporting a high temperature of 33º.

Claimant arrived on campus on December 19, 2005 sometime before 9:00 a.m. for a final exam scheduled at 9:00 a.m. Although claimant testified that her time of arrival was 8:45 a.m., absent an unexplained passage of time (e.g. sitting in her parked car in the parking lot for a number of minutes after arrival), other testimony and the independent records of police and EMT dispatch documents indicate that her arrival was but a few minutes before 9:00 a.m., and that her fall occurred at 8:56 or 8:57 a.m. The weather that morning, as described by several witnesses, was cold, the temperature never rising above 28º from midnight to 9:30 a.m. that morning, with trace flurries of snow.

Claimant testified that upon her arrival, she parked her car between two vehicles, exited her car, walked between the cars to reach the edge of the driving lane, turned left at the rear of her car (having parked headfirst) and began to walk to her exam along the left edge of the driving lane. She was wearing “sneakers,” claiming, counterintuitively in the Court’s assessment, that she found them to give her better traction than rubber-soled boots. After turning left, claimant testified to staying within two to three inches of the edge of the bumpers of the parked cars, walking within the unplowed swath, not in the driving lane to her immediate right, and walking “four or five car lengths” before slipping, falling and injuring her ankle. Claimant described the swath, her chosen path of travel, as “bumpy, hard-packed snow, some spots with ice.” Claimant expressly testified to her chosen path of travel as being confined to the unplowed and unshoveled swath.

Within one minute of having fallen, claimant called for help on her cell phone. Exhibits 1 and 7 show that campus police and a local EMT squad, respectively, were dispatched to the parking lot at 8:58 a.m., placing claimant’s fall at 8:56 or 8:57 a.m.

SUNY Police Officer Edward Kercado was the dispatched responding police officer. Responding within minutes, Officer Kercado found claimant on the ground, at the edge of car bumpers and immediately next to the parking lot driving lane. He reported no precipitation was occurring at the time. While reporting to the scene, he observed snow around the claimant, and also reported that the parking lot had been plowed and that he observed bare pavement in the parking lot driving lane.

Responding at 9:04 a.m., EMT Howard Huth repeated much the same testimony as Officer Kercado. He too reported finding claimant in close proximity to the bumper of a vehicle, on a portion of snow. He further described an unplowed swath of one to two feet in width between the driving lane and the bumpers of parked cars. He described proceeding to the call and, while describing the conditions of the parking lot, stated, “the roads were cleared.”

EMT Bart Cohen, responding with Mr. Huth, also testified that the swath between the parking lot driving lane and parked cars was one to two feet in width, containing a few to several inches of snow in depth.

None of the witnesses reported having observed the presence of either sand or salt anywhere in the parking lot on December 19, 2005, the day of claimant’s fall. Mr. Reilly said that no requests were made for snow or ice removal in the parking lot on December 19, 2005.

Claimant called Wayne Mahar, a long-practicing meteorologist familiar with weather conditions in Albany, as an expert witness in weather. Mr. Mahar testified in detail about weather conditions reported at Albany County Airport from Friday, December 16, 2005 to Monday, December 19, 2005. Mr. Mahar testified temperatures were predominately below freezing (32º) for the four-day period but for, at most, a few hours each day, peaking at 35º/36º on December 16, 2005, 35º on December 17, 2005, 33º on December 18, 2005, and never exceeding 28º on December 19, 2005 until after claimant’s fall.

Mr. Mahar generally described the meteorological concept of a “freeze/thaw” cycle in which temperatures rising above and falling below 32º could, and depending upon sunlight and pavement conditions would, result in a thawing and refreezing of previously deposited snow. Mr. Mahar, while exceedingly qualified, testified generally and exclusively based upon his expertise and weather records recorded at Albany County Airport during the days in question, going so far as to describe Sunday, December 18, 2005, a day on which the high temperature recorded at Albany County Airport was 33º, as the third straight day of a freeze/thaw cycle in Albany.

In Marcellus v Nathan Littauer Hosp. Assn. (145 AD2d 680, 681 [3d Dept 1988]), the guiding legal principles are set forth:
“Analysis of a case involving a slip and fall in winter conditions starts with the well-settled principle that a party who possesses or controls real property is under a duty to exercise reasonable care under the circumstances . . . . This standard must be applied with an awareness of the realities of the problems caused by winter weather . . . . Thus, 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 . . . . A defendant is afforded a reasonable time after the cessation of the storm or temperature fluctuations which created the dangerous condition to exercise due care to correct the situation . . . .”

Claimant asserts that defendant created a dangerous condition on December 16, 2005 by leaving between 12-24 inches of unplowed snow on either side of the parking lot driving lane, between the edge of the plowed driving lane driving surface and the edge of bumpers of cars parked to the left and right of the center driving lane, and by failing to take further action, such as hand shoveling, salting or sanding the swath prior to claimant’s fall.

The Court of Appeals has instructed that a municipality will be held liable where snow or ice creates an interference with travel that is: “(1) Dangerous, (2) Unusual or exceptional; that is to say different in character from conditions ordinarily and generally brought about by the winter weather prevalent in the given locality” (Williams v City of New York, 214 NY 259, 263-264 [1915]; see Dello v State of New York, 105 AD2d 571, 572-573 [3d Dept 1984]). It is further clear that “proof [that] establishes nothing more than defendant failed to remove all of the snow and ice from the subject [area] . . . does not constitute negligence” (Cardinale v Watervliet Hous. Auth., 302 AD2d 666, 666-667 [3d Dept 2003]). Finally, “Where . . . a defendant has undertaken snow removal efforts in the context of an ongoing storm, the relevant inquiry becomes whether the defendant’s efforts either created a hazardous condition or exacerbated a natural hazard already created by the snowstorm” (Gentile v Rotterdam Sq., 226 AD2d 973, 974 [3d Dept 1996]).

The undisputed facts show that the one inch snowfall of December 16th was plowed in the defendant’s usual and customary manner. Because the large campus parking lots generally contained many vehicles which would remain parked and unmoved for periods of time, a center driving lane would customarily be plowed to within a close distance of the bumpers of parked cars to the left and right of the parking lot driving lane.

Initially, the Court finds that the defendant’s response in plowing the parking lot on December 16th to address a one inch snowfall was reasonable and did not create a dangerous condition. Further, to expect the defendant to hand shovel, over the intervening weekend, the residual swaths in 15 parking lots containing multiple and lengthy driving lanes, left by the plowing of but one inch of snow, is unreasonable and would demand extraordinary efforts on the part of the defendant.

Claimant’s expectation that all unplowed pavement within several, several hundred-spot parking lots (including areas fronting parked cars and the areas between parked cars), upon which one inch of snow had fallen, be hand shoveled and/or salted or sanded, clearly and substantially exceeds the well established standard that reasonable efforts, not extraordinary efforts, be used to address winter conditions in New York (Cohen v New York City Hous. Auth., 44 AD2d 817, 818 [1st Dept 1974]; De Boulet v City of New York, 192 App Div 359 [1st Dept 1920]; Fox v State of New York, 35 Misc 2d 728, 730 [Ct Cl 1962]).

The Court finds defendant’s response to the one inch snowfall of December 16, 2005, in view of the minimal amount of snow and the lack of inclement weather thereafter (i.e. no precipitation on the days between the one inch snowfall and the morning of claimant’s fall), to have been reasonable.

The Court further finds the testimony of Mr. Mahar to have been unpersuasive on the issue of whether a dangerous condition was created by a thawing and freezing of the unplowed and unshoveled areas of the parking lot. Mr. Mahar did not testify, nor could he, that the one inch snowfall had actually thawed and refrozen in the parking lot at SUNY at anytime between December 16, 2005 and December 19, 2005. Nor could he testify as to what the conditions were in the parking lot on the morning of December 19, 2005, and most relevantly, what the conditions were at the location of claimant’s fall.

The Court is not unmindful of the concept of a freeze-thaw-refreeze cycle, and not unwilling, under the appropriate set of circumstances and facts, to factually conclude that thawing and refreezing has occurred. However, given the predominantly cloudy weather conditions in Albany between December 16 and December 19, 2005 (as detailed through the testimony of Mr. Reilly and Mr. Mahar), and considering the extremely narrow range of temperatures by which the freezing mark of 32º was at all exceeded during this several day period (by no more than 3º or 4º, at its warmest), and further considering the exceedingly limited number of hours the freezing point of 32º was exceeded at all, and finally, given the necessarily non-specific testimony of Mr. Mahar (and thereby, the limited probative value thereof), the Court concludes that claimant failed to meet her burden of proof that a dangerous condition had been created by a thaw and refreezing of the unplowed and unshoveled snow in the parking lot.

Even were the Court to have found that a dangerous condition was created through the acts and/or omissions of the defendant and to have further found that the defendant’s response to its creation was insufficient, the claimant’s conduct nevertheless constituted a superseding act which severed any causal link between defendant’s negligence and claimant’s injuries.

Claimant bears the burden of showing that defendant’s negligence was the proximate cause of her injuries. “To meet her burden, [claimant] was required to submit evidentiary proof to demonstrate that her injury was a natural and probable consequence of conditions for which defendants are responsible” (Ellis v County of Albany, 205 AD2d 1005, 1007 [3d Dept 1994]).

“[I]n order to be a superseding cause, a plaintiff's negligence must be more than mere contributory negligence, which would be relevant in apportioning culpable conduct. Rather, such conduct, in addition to being unforeseeable, must rise to such a level of culpability as to replace the defendant's negligence as the legal cause of the accident” (Mesick v State of New York, 118 AD2d 214, 218 [3d Dept 1986], lv denied 68 NY2d 611 [1986]).

To establish a superceding act, it must be demonstrated that claimant’s intervening conduct was “extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from . . . defendant’s conduct” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]).

Claimant knowingly and intentionally chose the one to two foot icy swath as her path of travel for the four to five car-length distance she navigated in the parking lot prior to her fall. She described the swath as “bumpy, hard-packed snow, some spots with ice.” Immediately to her right was a plowed driving lane, described by other witnesses as generally clear, with bare pavement observable. And yet, claimant walked exclusively within the icy swath, “within two inches to three inches” of the presumably filthy bumpers of cars to her immediate left.

The claimant made a conscious and knowing election to exclusively walk within the one area of the parking lot self-described as the most dangerous portion of the lot, eschewing the plowed, bare pavement driving lane to her immediate right. She made this choice while wearing sneakers, rather than more appropriate winter footwear, and with only a matter of minutes remaining until her final examination would begin. Claimant did not testify that her choice to walk upon the “bumpy, hard-packed snow” was compelled by a concern that she was endangered by cars traveling in the driving lane of the parking lot. The Court finds that it was not foreseeable that claimant would choose to walk upon the one to two foot wide icy, snow-covered swath rather than the easily passable pavement immediately adjacent to her, and further finds that such deliberate conduct so far exceeds the actions of a reasonable person that it constitutes extraordinary conduct under the circumstances.

The present claim is unlike the situation addressed by the Third Department Appellate Division in Nash v Fitzgerald (14 AD3d 850 [3d Dept 2005]). In Nash, a jury verdict which found the defendant negligent in permitting snow-covered ice to remain upon an apartment building’s steps, but which also found that such negligence was not a proximate cause of the accident, was set aside by the trial court. The Appellate Division affirmed the lower court, pointing out that the “[p]laintiff was wearing proper footwear for traversing in snow and did not see the underlying ice before he fell” (Nash, 14 AD3d at 852). The Nash decision found that while the jury had a basis to find that plaintiff's failure to perceive the danger that ice could be present under the snow, while repeatedly traversing the steps, was negligent, such negligence amounts only to comparative negligence rather than a superceding cause of the accident.

This claim is also distinguishable from Skibinski v Salvation Army (307 AD2d 427, 428 [3d Dept 2003]), in which the court held that a plaintiff’s “inattentiveness and failure to perceive the danger [of the icy condition of a parking lot] was not a superceding cause of the accident, although it is pertinent to the issue of comparative negligence.”

Claimant’s conduct here is more akin to those “cases where the plaintiff recognized the danger and chose to disregard it, thus rendering the plaintiff's conduct the sole proximate cause” (Skibinski, 307 AD2d at 428).

In Schermerhorn v Warfield (213 AD2d 877 [3d Dept 1995]), the court affirmed a judgment entered upon a jury verdict rendered in favor of the defendants in a case involving a slip and fall on an icy sidewalk. The plaintiff and his companion were each walking a dog along the sidewalk. Plaintiff had consumed some alcohol at a wedding earlier in the day and was wearing tinted prescription sunglasses and smooth-soled cowboy boots. The Schermerhorn court, at p. 877, describes the accident:
“After walking about 35 to 40 minutes, they saw some ice on the sidewalk ahead of them. As they approached the icy area, [the companion] was walking with one dog on a leash to the right of plaintiff who was walking beside her. They noticed the ice was larger on the left or street side of the sidewalk and thinned out and was smaller on the right side of the walk. [The companion] stepped over the ice without difficulty but plaintiff stepped on it and fell, injuring his ankle.”

Significantly, the plaintiff “admitted on cross-examination that [the companion] had stepped over the ice without mishap and that he could have easily stepped over the ice on the right side of the sidewalk as [the companion] had done” (Schermerhorn, 213 AD2d at 878).

The Schermerhorn court concluded, at p. 878, as follows:

“The jury could reasonably have concluded that although defendants were negligent, that negligence was not a proximate cause of plaintiff's injuries. There was evidence that plaintiff had consumed significant amounts of alcohol, was wearing tinted glasses after dark, had on cowboy boots with smooth soles and 1 1/2-inch heels and was walking an 83-pound dog. Further, he admitted that he could easily have gone around the ice as his girlfriend had done. Thus, the jury could properly conclude that notwithstanding some negligence on the part of defendants, the sole proximate cause of the accident was the willful negligence of plaintiff in continuing to walk over the ice instead of easily stepping around and over it as did [the companion].”

In Button v Rainbow Prods. & Servs. (234 AD2d 664 [3d Dept 1996]), the court reversed an order of the lower court which had denied the defendant’s summary judgment motion seeking dismissal of a complaint alleging that plaintiff was injured after falling in defendant’s parking lot due to defendant’s negligent creation of a dangerous condition. Button explained, at p. 665, that as plaintiff entered the parking lot after a rainstorm, he encountered a puddle, and held that:
“Although plaintiff could have taken a ‘non-puddled’ path to his truck, he elected to pursue the most direct course by jumping over the corner of a puddle. When he landed on the wet clay surface of the parking lot, his feet went out from under him, causing him to injure his leg. Based upon the foregoing evidence, we conclude that plaintiff's election to jump a clearly visible puddle was the proximate cause of his injuries.”

Finally, in Thomas v City of New York (16 AD3d 203, 203-204 [1st Dept 2005]), the court affirmed an order of a lower court which denied plaintiff’s motion to set aside a verdict which found that the defendant’s negligence in maintaining a sidewalk was not the proximate cause of plaintiff’s injuries:
“A water-filled depression of the size depicted in the photographs, and the existence of a safe alternative route around the depression along the curb, fairly support a finding that plaintiff's attempt at a one-legged vault over the depression was so unsafe and unreasonable as to constitute the sole cause of her accident . . . . Although plaintiff testified that a pile of garbage on one side of the depression and traffic in the street on the other side left her with no choice but to attempt to jump or stride over the depression, the jury apparently was not persuaded, and the evidence of a dangerous flow of traffic near the curb did not so preponderate in plaintiff's favor that a finding of a safe alternative route could not have been reached under any fair interpretation of the evidence.”

In sum, claimant’s unforeseeable and deliberate choice to walk upon an icy, snow-covered swath, rather than the adjacent plowed pavement, was the sole proximate cause of claimant’s injuries.

For all of the foregoing reasons, the claim is dismissed. All motions not previously decided are hereby denied. Let judgment be entered accordingly.

April 2, 2007
Albany, New York

Judge of the Court of Claims