New York State Court of Claims

New York State Court of Claims

DeGREGORIO v. THE STATE OF NEW YORK, #2008-013-510, Claim No. 109305


Synopsis


In this inmate slip and fall claim, the State's reliance on a storm in progress theory did not immunize it from liability, where it was 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.

Case Information

UID:
2008-013-510
Claimant(s):
MICHAEL DeGREGORIO and BROOKE DeGREGORIO
Claimant short name:
DeGREGORIO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109305
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant’s attorney:
ZILLER, MARSH & LANG, LLPBY: ARTHUR J. ZILLER, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 20, 2008
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


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.[1] The trial 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 building.[2] 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 5, 2003.

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 crews.

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 8.

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.)[3], where 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, id., 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 (UID #2005-013-501, supra) inapposite.

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 cover.

All motions not heretofore decided are now denied.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.


October 20, 2008
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. [1]See DeGregorio v State of New York, 13 Misc 3d 1090.
  2. [2]See the deposition testimony of Defendant’s Maintenance Supervisor, Calvin Fredenberg (Exhibit 8, p. 10).
  3. Decisions and selected orders of the New York State Court of Claims are available on the Internet at