New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, #2007-044-013, Claim No. 110068


Synopsis


Inmate's claim for injuries incurred when he slipped on ice on his way to the recreation yard dismissed where claimant did not prove the existence of a dangerous condition or prior notice to defendant, and further did not prove that the fall was the proximate cause of his injuries

Case Information

UID:
2007-044-013
Claimant(s):
GARFIELD ALLEN
Claimant short name:
ALLEN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110068
Motion number(s):

Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
GARFIELD ALLEN, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 30, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant, an inmate proceeding pro se, filed this claim against defendant State of New York (defendant) alleging that on March 6, 2003, he suffered personal injuries when he slipped and fell on an icy and snowy walkway while going to the recreation area at Southport Correctional Facility (Southport). Trial of the matter was held at Elmira Correctional Facility on March 6, 2007.

At trial, claimant testified that he was physically restrained (via handcuffs and a waist chain) according to prison procedure when he was taken out of his cell for recreation at approximately 10:00 a.m. In order to get to the exercise cages, it was necessary for claimant to travel over an outside walkway. Claimant stated that it was snowing, and the snow concealed patches of ice already existing on the walk. Claimant testified that when he slipped, he could not break his fall because of his restraints, and he landed on his back on the padlock. The nurse on duty for that cellblock on that day, Nurse DeMeritt, also testified at trial. She stated that she came outside to where claimant had fallen, and examined him. DeMeritt advised claimant to apply cold compresses to reduce potential swelling and gave him some ibuprofen for the pain. After she consulted with the facility physician, an X ray was ordered for claimant, which was performed the following day. Claimant stated that he has had back spasms on an intermittent basis since the fall, requiring medication and a back brace as needed.

In his claim, claimant alleged that the ice and snow had been on the walkway for four to five days prior to his fall, and that he had made numerous complaints of the allegedly dangerous condition to several correction officers (Sergeant Manos and Officers Sullivan, Donaldson and Augustine). However, at trial claimant testified that other inmates had fallen and complained, but that he had not registered any prior complaints. Moreover, claimant also testified that he had traversed the walkway the previous day and that the walkway had been relatively clear. He stated that the ice had built up overnight and that it was snowing that morning. Claimant stated that he routinely observed the walkway from the window in his cell, and the correction officers responsible for the yard had neither shoveled nor salted the walkway that morning. He further testified that the officers had not shoveled or salted the walkway the previous day, as there was no need to do so.

Claimant filed an inmate grievance regarding the incident the next day. He also requested that a copy of the videotape recording the incident be retained by the facility. The grievance was denied. Claimant appealed, and the appeal was also denied, on the basis that “facility records do not indicate any accident occuring [sic] on this particular day. Also, no calls were made to medical regarding the alleged incident.” The grievance records indicate that the tape was not retained, because no incident had occurred.

Interestingly and notwithstanding the Superintendent's finding on appeal that the facility's records indicated that the accident did not occur, claimant introduced a copy of the nurse's report, which documented claimant's fall and that she had gone to the recreation yard to examine him.[1] Moreover, defendant introduced a copy of the log notes kept by the correction officers regarding incidents at the facility that day.[2] The log notes state: “10:15 am [Claimant] fell in yard was seen by nurse and escorted back to cell.” At trial, defendant did not contest claimant's allegation that he had fallen on the walkway.

Dr. John Alves, the facility Health Services Director, testified for defendant. He confirmed that he had ordered an X ray for claimant after the accident. However, he also stated that claimant had complained twice of severe back pain in the month prior to the accident. Claimant's health record indicated claimant complained on February 19, 2003 and February 27, 2003 of mid-back “shocking” pains which had been ongoing for “a few weeks.”[3] Dr. Alves had ordered an X ray subsequent to those complaints, but the X ray had not yet been performed by the date of the accident. The X ray taken the day after claimant's fall noted “[a]nterior osteophytes at multiple levels.”[4] Dr. Alves testified that this is a degenerative disease of the spine, which would have been a preexisting condition, and could not possibly have been caused by claimant's fall. This disease can cause symptoms such as back spasms and pain, similar to those described by claimant.

Sergeant Gregory Manos also testified for defendant. He described the routine procedures followed by the facility regarding the care of the recreation yard during inclement weather, such as snow and ice. Manos also drew a diagram of the cellblock in which claimant resided,[5] which showed that claimant could not possibly have seen the recreation yard from his cell, despite his earlier testimony. Claimant acknowledged that he had falsely testified regarding routinely watching the care and maintenance of the recreation yard from his cell window.

At the close of its case, defendant moved to dismiss the claim for failure to set forth a prima facie cause of action, on the ground that claimant had proved neither the existence of an unusually dangerous condition nor the requisite prior notice. The Court reserved decision on the motion.

The State, as a landowner, owes a duty to maintain its property in a reasonably safe condition under the prevailing circumstances, but “it is not obligated to insure against every injury which may occur” (Smith v State of New York, 260 AD2d 819, 820 [1999]; see Basso v Miller, 40 NY2d 233, 240-241 [1976]; Matter of Boettcher v State of New York, 256 AD2d 882 [1998]; Condon v State of New York, 193 AD2d 874, 875 [1993]). 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. However, “ ‘general awareness’ that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition” (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]). “Among other things, a party who slips and falls on ice or snow must establish that the injury causing condition was dangerous and different in character from conditions ordinarily and generally brought about by winter weather in the given locality” (Tobias v State of New York, Ct Cl, Dec. 19, 2000, Patti, J., Claim No. 96244 [UID # 2000-013-520]; see Williams v City of New York, 214 NY 259, 263-264 [1915]; Schwabl v St. Augustine's Church, 288 NY 554 [1942]; Van Slyke v New York Cent.

R. R. Co.,
21 AD2d 147 [1964]; Tirado v State of New York, Ct Cl, Aug. 12, 1998, Bell, J., Claim No. 96320). Mere failure to remove all snow and ice from a walkway does not constitute negligence (Rector v City of New York, 259 AD2d 319, 320 [1999]), unless it is shown that the hazard was increased by what was done to remove the snow (Reidy v EZE Equip. Co., 234 AD2d 593, 594 [1996]). Moreover, a landowner must be afforded a reasonable time after the cessation of the storm or temperature fluctuations which created the hazardous condition to take corrective action (see Boyko v Limowski, 223 AD2d 962 [1996]; Downes v Equitable Life Assur. Socy. of U.S., 209 AD2d 769 [1994]).

In this case, despite claimant's obvious credibility problem, and despite defendant's indefensible denial during the grievance process that the accident had even occurred, there is no dispute that claimant fell on snow and ice while on his way to the recreation yard. However, a number of different issues require dismissal of the claim.

First, claimant's own testimony indicated that the walkway was clear the previous day, that the ice had formed overnight, and that it was snowing at the time he fell. Claimant has made no showing that the condition of the walkway was dangerous and different in character from those conditions routinely caused by winter weather on outdoor walkways in upstate New York. Further, although claimant attempted to establish that other inmates had fallen on this walkway in the past and had complained to the prison administration, claimant introduced no actual non-hearsay evidence that would have made such a showing. Moreover, any competent evidence claimant might have submitted to that effect would only have established that defendant had general knowledge that the walkway became slippery when snow or freezing rain fell. This would not have established that defendant had actual or constructive knowledge of this particular condition, particularly given that the snow and ice had not been there the previous day, and that the snow was still falling at the time of the accident.

In addition to claimant's failure to prove either an unusually dangerous condition or the requisite prior notice (actual or constructive) to defendant, defendant has raised a legitimate issue regarding the causal relationship between claimant's fall and the back spasms and pain of which he complains. In the trial of a negligence claim such as this, the claimant must establish by a preponderance of the evidence that the defendant's negligence was the proximate cause of his injuries (Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550 [1998]). In this case, claimant's medical records indicate that he had complained prior to his fall of the exact symptoms he contends were caused by the fall. Defendant showed by credible expert medical testimony and documentation that claimant's physical problems were actually caused by a preexisting degenerative medical condition. In light of this substantial evidence that claimant's injuries did not arise from his fall, which was not controverted by claimant, the Court finds that claimant did not sustain his burden of proof regarding the proximate cause of his maladies (Matter of Lamphron v Regan, 191 AD2d 894 [1993]).

For the foregoing reasons, defendant's motion to dismiss the claim is granted.

Let judgment be entered accordingly.


March 30, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims




[1]. Exhibit 1.
[2]. Exhibit D.
[3]. Exhibit B.
[4]. Id.
[5]. Exhibit C.