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
Moreover, defendant introduced a copy of
the log notes kept by the correction officers regarding incidents at the
facility that day.
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
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
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,
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 ; see Basso v Miller, 40
NY2d 233, 240-241 ; Matter of Boettcher v State of New York, 256
AD2d 882 ; Condon v State of New York, 193 AD2d 874, 875 ).
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 ). “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 ; Schwabl v
St. Augustine's Church, 288 NY 554 ; Van Slyke v New York Cent.
R. R. Co.,
21 AD2d 147 ; 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 ), 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
). 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 ; Downes v Equitable Life Assur. Socy. of U.S., 209 AD2d
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
). 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 ).
For the foregoing reasons, defendant's motion to dismiss the claim is granted.
Let judgment be entered accordingly.