Claimant Michael DeGregorio slipped and fell on the walkway between Dorm D-2
and the school building at the Orleans Correctional Facility (Orleans) on April
8, 2003, at approximately 7:50 a.m.
of this claim was bifurcated and this decision deals solely with the issues
relating to liability. As the claim of Brooke DeGregorio is derivative,
reference herein to Claimant shall mean Michael DeGregorio.
This claim raises classic questions of snow and ice in upstate climes, the
efforts by State authorities to clear roadways and walkways for safe passage,
whether the weather events preceding and during this incident fall within the
penumbra of a “storm in progress,” which would afford the Defendant
a degree of insulation from culpability, and whether if, indeed as the State
purports, there was a storm in progress with snowy and icy conditions, it should
have restricted the movement of this and other inmates, or perhaps directed them
off the icy paved pathway onto the grass where perambulation would be less
dangerous. There was undisputed testimony that, by facility regulation, inmates
were not permitted to leave the walkway and were subject to disciplinary charges
for insubordination if they did so.
A review of the events surrounding Claimant’s accident will be
instructive. Starting on April 3 and continuing on April 4, 2003, there was an
ice storm in Orleans County (where Orleans Correctional Facility is situated)
and other surrounding counties of such severity that they were declared by
federal and state governments as disaster areas. The Defendant’s expert
meteorologist testified that by April 5, 2003, ice was reported by a volunteer
weather observer from Albion to have melted from the trees, in his opinion, due
to the angle of the sun, and with temperatures near 40°(F), the ice was
“nasty” but didn’t linger long. He noted that April 5 and 6
were relatively uneventful weatherwise, with no significant precipitation. He
reported that on April 7, in the afternoon and continuing into the morning hours
of April 8, there were patches of light snow and freezing drizzle, with
temperatures in the upper 20s and low 30s. The National Weather Service issued
a warning that people use extra care due to icy conditions. Defendant’s
expert allowed that no travel advisories from the Orleans County Sheriff’s
Department were issued for April 8, and noted that after plowing or shoveling,
surfaces should have been treated with salt, but that if they were not so
treated, could have been dangerous.
Here the storm in progress theory works as a sword and a shield for the
Defendant. Thus, if the weather was severe enough to constitute a storm, to
wit, patches of light snow and freezing drizzle, then was the Defendant given a
sufficient period of time to plow and salt before the Claimant traversed the
area? The countervailing question arises: if the storm was in progress and an
insufficient period of time to plow and salt the walkways was allotted, should
the Defendant, which has complete custody and control over the movement of
inmates under the authority of its Department of Correctional Services (DOCS),
have restricted inmates from walking on as yet untreated walkways? The
Defendant cannot have it both ways.
That begs the question, discussed below, of whether salt was applied at all in
the early morning hours preceding the Claimant’s slip and fall.
Claimant was a school porter whose job was to sweep and mop floors in the
classrooms and bathrooms of the facility school, which opened at 8:15 a.m. At
10:45 a.m. the inmates at the school went back to their housing blocks.
Claimant, as a school porter, had no responsibility for the maintenance of
outdoor sidewalks, only the small stoop area at the entrance to the
Claimant was walking from his
dormitory to his job, a total distance of perhaps 400 yards, when he slipped and
fell at approximately 7:50 a.m. on what was described as an icy walkway some 20
to 25 feet from the schoolhouse door, a walkway which Maintenance Supervisor
Fredenberg testified was not subject to snow and ice removal by inmate work
crews (Exhibit 8, p. 10), impliedly thus the sole responsibility of the civilian
staff at Orleans. Claimant testified that it was not snowing or raining at that
time, and that the walkway seemed to have been plowed but still had patches of
ice. He was wearing state-issued black boots with a synthetic rubber sole when
he slipped and fell on an icy patch that he described as being the entire width
of the walkway, then putting his hand out to cushion his fall and injuring his
wrist. Claimant went into the school and then was escorted by another inmate to
the facility medical office.
The Defendant demurs as to its culpability, relying primarily on the storm in
progress theory, but also providing evidence with respect to its efforts in snow
and ice removal during the period starting on April 3 and continuing into the
evening and morning hours immediately preceding the accident complained of.
Specifically, it established that it had called in civilian employees Gurney and
Papponetti during the early hours of April 8 for 4½ hours of overtime work
starting at 3:30 a.m. (Exhibits F and G, respectively), and purportedly
demonstrating that it was addressing the precipitation of that storm in progress
and noting that inmate Banks was called in for overtime snow removal services
from 3:00 a.m. to 8:00 a.m. (Exhibit H), as well as inmate Zornow’s
overtime snow removal work on April 7 from 8:00 p.m. to 11:00 p.m. (Exhibit H).
All of this proof, combined with the notations in the Watch Commander’s
Log reflecting snow and 32° at 7:00 a.m. on April 8 (see Exhibits E
and 11, p. 306), are supportive of Defendant’s arguments.
However, offsetting these arguments is the record of the salt deliveries to the
vehicles providing snow and ice removal services within the facility. Of course
the State, as part of its storm in progress defense, demonstrates that it
utilized civilian employees and inmates in its snow and ice removal efforts.
Mr. Gurney recalled being called in for overtime duty on April 4, 5 and 8, and,
while he could not recall at trial the specific weather conditions, surmised
that it must have been snowing. He described using pickup Truck No. 6, which
has a spreader on the back for distribution of salt, which he controlled. He
usually plowed first and then followed up with salt. He testified that he
normally always used salt if he plowed. He noted that a single complete run of
the interior pathways would use a one-ton load of salt. He described a process
wherein the truck is loaded with salt on the night or day before from the
Department of Transportation (DOT) facilities. The loading of salt, much like
all events within the control of DOCS, is rigidly documented.
Thus, a dramatic gap in the record of salt deliveries is significant. It was
acknowledged that salt was accessible from DOT during the season 24 hours a day.
The “Orleans Correctional Salt Deliveries and Correctional Takeouts”
form (Exhibit D) reflects a chronological record of all salt deliveries to Truck
Nos. 6 and 43 from January 17, 2003 through and including March 13, 2003.
Exhibit D then records salt deliveries solely for Truck No. 6 of two tons on
April 3; one ton on April 4, and finally two pickups on April 5, first of one
ton and then two tons. Both April 5 pickups show Mr. Gurney’s signature.
There is no record of any salt deliveries or takeouts thereafter, and thus it
appears undisputed that there was no salt pickup for use at Orleans after April
The nagging question, which the State suggests should not be asked and can only
lead to speculation, is whether any salt was used on the icy pathways during the
snow and ice removal efforts of Gurney and Papponetti during their 4½ hours
of overtime work starting at 3:30 a.m. on April 8 (Exhibits F and G). So, it
appears uncontroverted that there was no refill of salt on either facility truck
(6 or 43) after April 5, and if it is reasonable to conclude that only plowing
was done during those overtime hours on April 8, there was presumptively no salt
distributed on the interior walkways, including the one outside the school where
the Claimant fell and was injured. Neither Gurney nor Papponetti had specific
recollections of the weather or of the particular snow and ice efforts utilized
that morning, allowing that icy conditions would warrant the use of salt.
There was testimony that inmate work crews had available an ample supply of
non-DOT salt and sand mixture (grit) and could use wheelbarrows to spread
“grit” in areas where staff could not get vehicles in or out.
However, the walkway in question was maintained for snow and ice removal
purposes solely by civilian staff, and was not serviced by inmate work
Moreover, there is ample evidence in the record, along with Defendant’s
storm in progress theory, that the State was on notice of icy conditions on
various walkways at Orleans. On April 6 at 1:10 a.m., Correction Officer (CO)
Wehling slipped on ice at the Visitors Center (Exhibit 11, p. 301). While
Defendant distinguished this incident as being at a location “outside the
fence” and an area where snow and ice removal had not been effectuated, it
serves to provide notice of icy conditions. Also on April 6 at 10:50 p.m., CO
Kazmark slipped and fell on ice on his way to D-Block (Exhibit 11, p. 301).
Similarly, on April 7 at 1:50 p.m., CO Lamar slipped on ice behind the
Commissary (Exhibit 11, p. 304), a location which is “some distance”
from the school. These incidents, at the least, provide a degree of notice to
the Defendant of icy conditions sufficient to have caused slips and falls that
were reported and recorded. These incidents also occurred in the days
subsequent to the last pickup of salt from the DOT’s facilities recorded
on April 5, and prior to Claimant’s accident.
Thus, rather than engaging in speculation as Defendant suggests, it is a
reasonable inference from the evidence before me that no additional salt was
picked up after April 5 and that whatever snow plowing efforts were effectuated
on April 6 and 7 and clearly on April 8 by Gurney and Papponetti, no salt was
spread on the icy walkway where Claimant fell in the morning hours of April
Here the record shows that the Defendant was on notice of icy conditions on
walkways in the facility, that no salt was loaded on Truck No. 6, and therefore
no salt was spread on these icy walkways, that Claimant was obligated by threat
of disciplinary action to walk on said dangerously icy conditions, and that
because of the same he was caused to slip and fall on said icy walkway through
no fault of his own.
Under these circumstances, the State’s reliance on a storm in progress
theory (see Crabtree v State of New York, Ct Cl, Claim No. 85882,
March 11, 1994, Bell, J.) will not immunize it from liability, particularly
where it is aware of a dangerous condition because of the various slips and
falls by correction officers and failed to act in a diligent manner, to wit, by
salting and/or prohibiting perambulation on unsalted icy walkways.
Unlike Rodriguez v State of New York
(Ct Cl, UID #2005-013-501, Claim
No. 95574, Feb. 28, 2005, Patti, J.)
that claimant could walk across grass, here Claimant DeGregorio was subject to
discipline if he left the paved walkway. Moreover, unlike the application of
rock salt by inmate porters at Attica in Rodriguez
, and snow
removal by inmate work crews in Ansbro v State of New York
(Ct Cl, UID
#2002-013-516, Claim No. 100889, Dec. 12, 2002, Patti, J.), here the 15- to
20-foot wide walkway was serviced by civilians with a pickup truck with a plow
and a salt spreader mounted on the rear. These distinguishable underlying facts
make the holding in Rodriguez v State of New York
I find that the Defendant must be held answerable in damages for the injuries
Claimant sustained in the slip and fall at Orleans Correctional Facility at 7:50
a.m. on April 8, 2003.
A conference to set a timetable for the completion of pre-trial discovery
relating to damages and setting a trial date will be scheduled under separate
All motions not heretofore decided are now denied.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.