John Lopez (claimant) seeks to recover for injuries sustained as a result of
falling upon a patch of ice on January 31, 2003 while incarcerated at Great
Meadow Correctional Facility (Great Meadow), located in Washington County, near
Glens Falls, New York.
The claimant, at approximately 7:45 a.m. on January 31, 2003, exited the Great
Meadow mess hall proceeding to his program, or work station, in the
facility’s print shop. He testified to leaving the mess hall through a
double set of doors leading outside, descending a set of concrete stairs and
walking approximately five paces upon an eight-foot-wide walkway (leading to the
print shop), having his left foot give way and falling upon and injuring a knee.
The location of his fall was marked upon Exhibit 1, a photograph depicting the
scene at Great Meadow.
Claimant, prior to his fall, “looking straight ahead” down the
walkway, did not observe what caused him to slip and fall. After falling, he
observed thin, clear patches of ice where he fell and reported that no salt or
sand was on the ice. Claimant was walking on the left side of the walkway, near
the building he had just exited. To his right, walking and talking with him,
and closest to the grass bordering the walkway on the right, was a fellow
inmate, Elvis Araujo.
Mr. Araujo also testified, largely corroborating the claimant’s account
of the accident. He also reported seeing no ice prior to the claimant’s
fall, but described observing it after the fall. Mr. Araujo described clear
ice, with “a nice size to it, round” and also reported the absence
of salt or sand in the area. Both men reported it was very cold on the morning
of January 31, 2003, but that there was no precipitation.
After falling, the claimant went to the print shop and reported his fall to
Correction Officer Tim Brockway. He testified, without objection, that Officer
Brockway, in response to claimant’s report of the fall, stated claimant
needed “to be more careful, because I will find myself slipping and
falling out there on that ice.”
Claimant also testified to observing mounds of snow piled to the right of the
walkway, on the grass immediately adjacent to the walkway. However, in so
doing, claimant provided contradictory testimony. Having previously testified
to looking straight ahead down the walkway and also to having failed to observe
the ice upon which he fell, he later testified “the whole pathway was just
covered, it wasn’t clean, it was covered in snow and ice.”
January 31, 2003 was a Friday. Both claimant and Mr. Araujo, upon
cross-examination, reported having traveled at the same time each day the
precise route taken that morning each of the four previous days, on their way to
their respective work programs. Although claimant also reported that it had
been “some days” (later introduced evidence demonstrated snow of 1.5
inches had fallen on Monday, January 27, 2003, in Washington County) since it
had last snowed at Great Meadow, neither claimant nor Mr. Araujo observed any
conditions of snow or ice on the walkway during the preceding four days. Nor
did they, therefore, report or complain of any such conditions on the walkway to
anyone at any time during the preceding four days.
Received without objection at the close of claimant’s case as Exhibits 4
and 5 were records of weather conditions in Washington County and in nearby
Glens Falls, New York, in the days and weeks leading up to January 31, 2003.
Defendant produced two witnesses, both of whom testified (one generally, the
other specifically) as to the custom and practice of wintertime grounds
maintenance, including snow and ice removal, at Great Meadow.
Patrick Vanguilder, the six-year deputy of security at Great Meadow,
responsible for the direct supervision of line staff and subordinate
supervisors, testified, generally, regarding duties and staffing relevant to
snow and ice removal at the facility. Stairs and walkways, particularly those
near the mess hall and the program work areas, were monitored Monday through
Friday for snow and ice removal, even in the absence of freshly fallen snow, by
work crews of inmates overseen by two correction officers. Although Deputy
Vanguilder, as part of his duties, would personally inspect such work, as needed
and appropriate, he was unable to specifically recount the work performed upon
or the condition of the walkway in question from January 27, 2003 through
January 31, 2003.
Sergeant David Merton, then Correction Officer Merton, was one of the
correction officers responsible for supervising an inmate work crew assigned to
maintain the steps and walkway adjacent to the Great Meadow mess hall during
Overseeing an inmate work crew of between 10 and 15 men, Officer Merton would
have the men congregate at the maintenance building between 8:30 a.m. and 9:00
a.m. each weekday (as the work crew would be composed of inmates from different
companies, eating at slightly staggered times, the crew would assemble over a
period of time between 8:30 a.m. and 9:00 a.m.). The crew, equipped with snow
shovels, ice scrapers, snowblowers and salt, would then tend to the stairs and
walkways each morning for approximately 90 minutes. This process was repeated
again each afternoon, with the crew reassembling between 12:30 p.m. and 1:00
p.m. each weekday, to monitor and attend, as needed, to the grounds.
Sergeant Merton indicated that the maintenance crew would assemble and perform
its duties twice daily, five weekdays (Monday through Friday) each week,
regardless of whether or not snow had freshly fallen.
Upon cross-examination, Sergeant Merton allowed that he had no current
recollection of what specific steps were taken the week of January 27, 2003
through January 31, 2003 to address snow and ice removal at Great Meadow and
that no written records of the work performed were kept or maintained.
Having been advised that approximately 25 inches of snow had fallen in the
month of January 2003 in Washington County (reflected in Exhibit 4), Sergeant
Merton testified his work crew would have assisted in removing that snow from
the eight-foot-wide walkway in question, piling it next to the walkway on the
grass. This pile of snow, sometimes referred to as a mound of snow, was to the
immediate right of the walkway, exiting the mess hall.
DiGrazia v Lemmon
(28 AD3d 926, 927 [3d Dept 2006], lv denied 7 NY3d 706 ), instructs
that claimant is “required to present evidence that ice existed, and that
it was visible and apparent and had existed for a sufficient period of time
prior to [his] fall to permit defendant to discover and remedy it.”
Further, defendant's “general awareness that icy conditions might have
existed is insufficient to establish constructive notice of the specific
condition that resulted in [claimant’s] injuries” (DiGrazia,
28 AD3d at 927).
It is the burden of the claimant to prove each and every element of his claim
by a preponderance of the credible evidence. This, he has failed to do.
Two witnesses (one characterized as a disinterested witness, notwithstanding
that Mr. Araujo is an acknowledged friend of claimant), gave uncontradicted
testimony that, although unseen, the claimant fell on clear, unsanded and
unsalted ice. That such testimony was provided is so.
However, several factors counterbalance that testimony. First, claimant
himself gave contradictory testimony concerning the condition of the walkway,
first detailing unseen ice upon it and subsequently testifying “the whole
pathway was just covered, it wasn’t clean, it was covered in snow and
ice.” Such seemingly inconsistent testimony undermines claimant’s
Second, neither claimant nor Mr. Araujo observed (or reported) snowy or icy
conditions on the walkway during any of the four days preceding claimant’s
fall on January 31, 2003.
Next, Deputy Vanguilder and Sergeant Merton set forth the regular and specified
set of protocols used in winter months at Great Meadow to monitor and address
snow and ice conditions on the grounds. These protocols involved the regular,
twice daily, several-hour regimens for the inspection and remediation of snow
and ice conditions on the mess hall walkway. It is difficult to conceive that a
work crew of between 10 and 15 inmates, overseen by two correction officers,
working upwards of three hours a day, would fail to see and address icy
conditions on the walkway (their primary work function) for the four days
following the last snowfall and leading up to claimant’s fall on Friday,
January 31, 2003.
Finally, it was suggested that a freeze-thaw cycle had resulted in a melting of
the snow mound to the immediate right of the walkway, causing ice to form on the
walkway. This, notwithstanding the fact that at the time of claimant’s
fall it was 0º F and that the temperature in Washington County had not
exceeded the freezing mark of 32º F since January 9, 2003, some 22 days
prior to claimant’s fall. This theory would require ice to have formed 22
days prior to claimant’s fall and thereafter to have not only gone
unnoticed by claimant and Mr. Araujo, but unnoticed and untreated by a
maintenance crew of 10 to15 men, responsible for addressing such matters, in the
intervening 15 weekday workdays between January 9, 2003 and January 31, 2003
(even assuming a freeze-thaw took place and further, that it had resulted in
ice forming on the walkway). The Court finds such a circumstance to be
The claimant, under the facts presented, has failed to prove he slipped and
fell on ice. Indeed, while not doubting that he did in fact fall and injure
himself, it is equally possible, rather, even more likely, that he tripped over
his own feet or slipped or tripped and fell for reasons unidentified or
unrelated to the condition of the walkway. As such, speculation would be
required to find claimant fell on untreated ice on the walkway. “[F]ailure
to prove what actually caused a [claimant] to fall in a situation where there
could be other causes is fatal to a [claimant’s] cause of action”
(Dapp v Larson, 240 AD2d 918, 919 [3d Dept 1997]).
Even were the Court to have found claimant slipped and fell on untreated ice,
the record is absolutely barren as to how long the ice had existed. “An
owner of real property may be liable for a hazardous ice condition existing on
its property as a result of a storm or temperature fluctuation only upon a
showing that it had actual or constructive notice of the hazardous condition,
and that a sufficient period of time elapsed since the cessation of the storm or
temperature fluctuation to remedy the condition” (Ronconi v Denzel
Assoc., 20 AD3d 559-560 [2d Dept 2005]).
In Simmons v Metropolitan Life Ins. Co. (84 NY2d 972, 973 ), the
Court of Appeals affirmed a First Department Appellate Division decision which
had reversed a trial level judgment, based upon a jury verdict, after a trial
involving a slip and fall on ice: