New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2008-015-507, Claim No. 112476


Synopsis


In a slip and fall on ice outside an entrance to a ski lodge, claim was dismissed following a trial on liability. Evidence was insufficient to permit the conclusion that icy condition was caused by the recurrent leaky condition of the gutter.

Case Information

UID:
2008-015-507
Claimant(s):
GEORGE J. DAVIS
Claimant short name:
DAVIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112476
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Gralicer & KaiserBy: Richard Gralicer, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, Esquire and Saul Aronson, EsquireAssistant Attorneys General
Third-party defendant’s attorney:

Signature date:
September 17, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The claim alleges that on February 15, 2006 claimant, George Davis, sustained severe and permanent injuries as the result of the defendant's negligence in creating or allowing the existence of ice outside an entrance to the Overlook Lodge at Belleayre Mountain Ski Center in Highmount, New York.


The claimant’s first witness was Robert Zimmerman who testified that on February 15, 2006 he was employed by the New York State Department of Environmental Conservation as a Ski Patrol Officer at Belleayre Mountain Ski Center (Belleayre). Mr. Zimmerman, who is also an Emergency Medical Technician, described his duties as a Ski Patroller as primarily involving the provision of medical assistance to persons injured either while skiing on the mountain or at the lodge facilities.

Each morning Mr. Zimmerman and other ski patrollers would report to the first aid office at the Overlook Lodge. The lodge has three outside entrances according to the witness. The main entrance is located to the west of the first aid office, which also has a separate outside entrance. The third entrance is located on the eastern side of the lodge and accesses primarily the bar area, great room and bathroom facilities. This entrance, which was referred to at trial as the bar door entrance, consists of a blacktop area which leads to a wooden deck at the end of which is a set of doors providing access to the building. According to Mr. Zimmerman, a short length of chain, which he estimated to be between three or four inches in length, is embedded into the blacktop area in front of the deck. The area immediately in front of the wooden decking is often snow-covered during wintertime and groomed to within a few inches of the deck using one of the facility’s large grooming machines. The chains embedded in the blacktop in front of the deck are generally not visible during winter months because they are covered with snow.

The witness testified that as a Ski Patroller his primary concern in responding to an accident call is to provide the injured person timely medical assistance. In responding to a call for assistance a Ski Patroller must also analyze the area where the accident occurred to insure that it is safe to enter and treat the patient. In this regard Mr. Zimmerman testified that in responding to an accident scene he looks first to determine the "mechanism of injury" (T. 26)[1]. If informed by the patient or other individual that the accident occurred as a result of a slip on ice he stated that he would "definitely" examine whether in fact the area was icy (T. 27) .

On February 15, 2006 the witness was informed while at the Summit Ski Patrol Office that an injury had occurred outside one of the entrances to the Overlook Lodge. The Ski Patroller stationed at the Overlook Lodge responded to the scene as did Mr. Zimmerman who left the Summit and skied down the mountain to the lodge. Ski Patrollers William Vitarius, Carrie Margarano and Christina Amundsen were already at the scene upon Mr. Zimmerman’s arrival. The witness observed an individual lying on his back on the ground with his body on the snow-covered area in front of the deck outside the bar entrance to the Overlook Lodge and his feet resting on top of the decking. He learned that Mr. Vitarius had been informed by the patient that he had slipped and fallen on ice and stated his belief that the cause of the accident, as related by the patient, was recorded in an accident report prepared by the first ski patroller responding, in this case Mr. Vitarius. Because he was aware that Mr. Davis had stated he had slipped and fallen on ice, Mr. Zimmerman examined the area where the claimant was lying but did not observe any ice. According to Mr. Zimmerman, the patient was stabilized, placed on a backboard and emergency transport was arranged. The patient was removed from the area and taken to the first aid room to await arrival of the ambulance.

Once the patient was placed in the ambulance and taken from the mountain the witness and Ski Patroller Vitarius returned to the scene of the accident and took several photographs as part of an effort to re-create the scene as it existed at the time the ski patrollers arrived. According to Mr. Zimmerman, both he and Mr. Vitarius examined the area and determined that there was no ice in the area where the claimant was found lying on his back.

The witness estimated that he and patroller Vitarius performed the reconstruction of the scene at approximately 9:00 a.m. or 45 minutes following the time the ski patrol first received notice of the claimant's accident. Upon returning to the scene for purposes of the re-creation, Mr. Zimmerman examined the wood deck and did not observe any ice. He stated that he observed salt on the decking both at the time he first arrived on the scene and upon his return at the time of the accident reconstruction. As part of the reconstruction Mr. Vitarius lay on his back in the same position he found the claimant when he first arrived at the accident site. Photographs were then taken showing both Mr. Vitarius lying prone and the surrounding area (Exhibits 9 - 17). The witness marked Exhibit 10 to indicate the area in which the claimant was lying at the time that he first responded to the scene. He described the surface of the area immediately in front of the decking on February 15, 2006 as composed of hard-packed snow. According to the witness, Exhibit 16 depicts the area of hard-packed snow in front of the decking where the claimant was found immediately following the accident. Exhibits 1 and 2 were received in evidence. Exhibit 1 is a Belleayre Mountain ski condition report which indicates, inter alia, that the temperature at the Overlook Lodge was 33° at 6:30 a.m. on Wednesday, February 15, 2006. Mr. Zimmerman identified Exhibit 17 as a copy of the photograph received as Exhibit 10 upon which he had entered information indicating that the temperature at Belleayre was 37° at 8:00 a.m. on February 15, 2006. The photograph itself was taken at 9:28 a.m. According to the witness a hazardous condition in the area around the Overlook Lodge would be marked using an orange fluorescent bamboo pole with a disk at the top, the same implement used to mark hazardous conditions on the facility’s ski trails. On cross-examination Mr. Zimmerman testified that when he arrived at the scene of claimant’s accident he first examined the area in order to determine that it was safe to work in and walk through. It was his view based upon his observations that the area was composed of hard-packed snow and did not pose a danger. He also observed at that time that the claimant was wearing what he described as "some form of after-ski boot or a sneaker" with little tread on the bottom (T. 79). The witness testified that in addition to insuring that the area was safe to work in while treating the claimant it was also his duty as a Ski Patroller to cordon off an area which could potentially pose a danger to Belleayre patrons. The area where the claimant fell was not cordoned off following the claimant’s accident because the witness determined the area was composed of hard-packed snow, not ice, and therefore posed no danger to persons entering the facility using the bar door entrance. As to the notations made by the witness on Exhibit 17, he testified that he determined the temperature indicated thereon (37°) by referring to an outdoor thermometer located in the office area of the Overlook Lodge.

The witness testified that he assisted Patroller Vitarius and other individuals in lifting the claimant on a backboard and transporting him to the first aid room. He examined the area directly underneath the claimant before crossing it while carrying the backboard and observed only hard-packed snow. According to the witness, the photograph received in evidence as Exhibit 16 fairly and accurately represents the surface of the area where the claimant was lying prior to being transferred to the first aid room. In the 20 years that he has been responding to injury causing accidents at Belleayre, Mr. Zimmerman has never responded to an accident in the area where the claimant fell nor is he aware of any such accidents. The witness testified that he did not slip at any time while holding the backboard and transporting the claimant from the accident site.

On redirect examination the witness testified to his observation that the shoes the claimant

was wearing on the day of his accident had little tread. He described the bottom of the claimant’s shoes as "fairly smooth" (T. 86).

Gerald Ingram was called to the stand and testified that on February 15, 2006 he was employed in the carpentry department at Belleayre. He had been so employed for approximately 18 years and described his duties as pertaining primarily to building maintenance, including repair and replacement of gutters and downspouts as well as snow and ice removal. In this regard the witness testified that he "sometimes" placed what he described as "DOT cones" (T. 99) in the area depicted in Exhibit 10 although he could not recall if the cones were placed there to provide warning of an icy condition (T.101). The witness stated that he has observed icicles on the gutters in front of the Overlook Lodge in the area where the claimant fell. In particular, he has observed icicles on the gutter over the bar door entrance to the Overlook Lodge on frequent occasions.

Mr. Ingram examined Exhibit 13, which he testified is a photograph depicting the gutter system outside the great room of the Overlook Lodge. The system includes a gutter running the length of the building. He noted that the system as depicted in Exhibit 13 was missing a portion of the downspout, between 2 and 2½ feet in length, which would ordinarily connect the end of the gutter to the vertical portion of the downspout attached to the great room wall. He was not aware how long the piece of downspout had been missing from the gutter system. He identified Exhibits 10 and 9 as showing different aspects of the corner of the great room where the gutter system containing the missing downspout is located.

Mr. Ingram testified that he was working at Belleayre on the morning of February 15, 2006. Upon reporting to work he first went to the facility nursery and then to the Overlook Lodge where he arrived at approximately 7:15 a.m. He observed snow on the two-inch by six-inch wood decking outside the bar door entrance but could not recall at trial whether he observed ice on the deck as well. He stated that he could not recall whether he applied salt to the deck although he stated "I do that all the time" (T. 120). The witness marked Exhibit 14 with two lines delineating the area where the asphalt walkway in front of the deck near the bar door entrance was located. The witness estimated that the bottom of the downspout attached to the exterior surface of the great room was located approximately one foot from the inside edge of the walkway as marked on the exhibit.

Mr. Ingram testified that on the morning of February 15, 2006 he began to shovel snow from the deck in front of the bar doors of the Overlook Lodge. He testified that it took him approximately 15 minutes to shovel an area which he estimated to be approximately 10 feet by 12 - 15 feet. He applied salt to the area he shoveled but not to the area immediately in front of the deck which he described as snow covered. He did not recall observing that the area in front of the decking was either glassy or shiny in appearance. Although he did not see the claimant fall, Mr. Ingram testified that he observed the claimant placing his skis on a rack located approximately twenty feet from the deck in front of the bar door entrance. As he continued shoveling he heard a thud and turned to observe the claimant on the ground. The claimant informed Mr. Ingram that he had injured his back and the witness then went to report the accident to the ski patrol. He described the claimant as lying on his back with his feet "just barely on the deck" (T. 141). He did not specifically observe the area where the claimant was lying but simply left to report the accident to the ski patrol office in the Overlook Lodge. There he spoke to Ski Patroller Vitarius who responded to the scene. While the ski patrollers worked to assist the claimant Mr. Ingram directed pedestrian traffic around the area. The witness testified that he replaced the gutter over the bar door entrance to the Overlook Lodge the day following claimant’s accident. Mr. Ingram testified that he replaced the gutter because "I saw something wrong with it" (T. 157) but could not recall at trial what he observed to be wrong with the gutter. The witness confirmed that Exhibit 26 is a photograph depicting him during the course of replacing the gutters over the bar door entrance at the Overlook Lodge.

On cross-examination Mr. Ingram testified that he walked through the walkway area marked on Exhibit 14 upon his arrival at the bar door entrance to the Overlook Lodge on the morning of February 15, 2006. He did not slip nor did he recall observing any ice on the walkway. He did not shovel snow taken from the deck onto the walkway. He stated that he checks the area outside the bar doors every day for snow and ice. Mr. Ingram returned to the scene of claimant’s accident after informing Mr. Vitarius of the incident and did not observe any of the patrollers slip while providing the claimant assistance.

William Vitarius, Jr. was called to the stand. Mr. Vitarius testified that he was employed at Belleayre as an OEC (Outdoor Emergency Care) Certified Ski Patroller on February 15, 2006. At approximately 8:40 a.m. that morning he was informed by Mr. Ingram that someone had slipped and fallen outside the bar doors. Mr. Vitarius left the ski patrol room in the Overlook Lodge and responded to the bar door entrance. Upon arriving at the scene he observed the claimant lying on his back with his hands at his chest. He inquired of the claimant what had occurred to which the claimant responded that he had slipped and fallen on ice. Standard procedure at Belleayre at that time required the first ski patroller who arrived on the scene to take charge and make a record of the incident. He examined the area where the claimant was lying on his back but observed only what he described as "hard-packed snow" (T. 177). He did not observe ice in the area around the claimant. The claimant was placed on a backboard, a neck collar was applied and when strapped to the backboard the claimant was taken inside to the ski patrol room. After the claimant was transported to the hospital by ambulance Mr. Vitarius returned to the scene of the accident and took photographs.

The witness confirmed that Exhibit 8 is an accident report form he completed in connection with the February 15, 2006 incident involving the claimant. He stated that although the patroller’s comments entered on the form indicate "[p]atient stated he slipped on the ice" he did not note the existence of ice at the scene because, based on his observations while at the scene, the claimant had slipped on packed snow and not ice. In this regard the witness testified "if there was ice there, I would have put it in my report" (T. 183). Mr. Vitarius testified that he entered the description of the accident contained in the accident report exactly as it was related to him by the claimant pursuant to standard procedures at Belleayre at the time. When asked whether he had ever observed "water coming down out of the gutters or the leaders out around the building" he responded that he had but did not recall that an icy condition was created thereby (T. 187).

The witness reviewed the following Exhibits (Belleayre Ski Condition Reports) and confirmed that they provide the following information with regard to temperatures and snowfall amounts recorded at Belleayre between February 12, 2006 and February 15, 2006:
- Exhibit 19 - February 12, 2006 (6:35 a.m.)

Temperature 14°/snowfall three inches
- Exhibit 20 - February 12, 2006 (11:34 a.m.)

Temperature 12°/snowfall one inch
- Exhibit 21 - February 13, 2006 (6:31 a.m.)

Temperature 10°/snowfall zero inches
- Exhibit 22 - February 13, 2006 (11:31 a.m.)

Temperature 18°/snowfall zero inches
- Exhibit 23 - February 14, 2006 (6:30 a.m.)

Temperature 19°/snowfall zero inches
- Exhibit 24 - February 14, 2006 (10:52 a.m.)

Temperature 26°/snowfall zero inches
- Exhibit 1 - February 15, 2006 (6:30 a.m.)

Temperature 33°/snowfall zero inches
- Exhibit 2 - February 15, 2006 (11:31 a.m.)

Temperature 44°/snowfall zero inches
Mr. Vitarius estimated thirty minutes elapsed between the time he arrived at the scene of the claimant’s accident and the time he and Mr. Zimmerman re-created the event. He did not recall observing dripping water in the area. When asked whether he observed slushy or icy conditions at the scene he responded "I didn’t see any ice conditions" (T. 196). Nor did he observe ice on the deck although he noticed what he described as "a little bit of snow" on the deck and that ice melt had been applied there (T. 196). Although he did not pay specific attention to the shoes the claimant was wearing, the witness stated "they appeared to be worn" (T. 197).

On cross-examination Mr. Vitarius stated that upon his arrival at the scene he surveyed the area where the claimant lay to insure it was safe to enter and that he concluded it was. He confirmed that in completing the accident report received in evidence as Exhibit 8 he noted "[p]atient was also wearing street shoes with little tread" (T. 205). He related that he did not feel ice, he did not see ice and he did not slip on ice while examining the claimant and providing treatment at the scene. Nor did he observe the other responding ski patrollers slip or otherwise experience difficulty in maintaining their footing during the time he was there.

The claimant, George Davis, was called to the stand and testified that he first began skiing at the age of 28 while a member of the United States Armed Forces in Japan. Mr. Davis, who was 80 years old on February 15, 2006, testified that he continued skiing every year since "all across the northeast, out west, California, Utah, Nevada, Colorado" and also at Belleayre (T. 229).

He described himself as very familiar with the Overlook Lodge at Belleayre and estimated that he had attended the ski area on three occasions during the 2006 skiing season prior to February 15, 2006. On that date he traveled from his home in Hyde Park, New York, approximately 45 miles to Belleayre where he arrived at approximately 8:30 a.m. Upon his arrival at Belleayre the claimant removed his skis, poles and ski bag from his pickup truck. He was at the time wearing the boots depicted in Exhibit 18 and received in evidence as Exhibit 27. He walked around the Overlook Lodge and placed his skis and poles on a ski rack near the bar door entrance. He then began walking toward that entrance intending to use the restroom facilities which were located through the bar doors and down a set of stairs. He was carrying his ski bag at the time which he estimated weighed between six and eight pounds. According to Mr. Davis he walked across an area of groomed snow and noticed an individual in front of the bar doors shoveling snow. The individual stepped back and indicated through gestures that the claimant could proceed past him. According to the witness he was "a step or two away from the wooden deck" when his feet suddenly went out from under him (T. 248).

The individual the claimant had observed shoveling snow came to him and then departed to alert the ski patrol. The claimant provided the following testimony regarding the time he was lying on his back awaiting the arrival of the ski patrol:
"[D]uring this interval, I just felt around with my hands as much as I could, up near my shoulders, down near my waist, and near my shoulders, I was on - I could feel softer snow, but as I got to where my hips and legs were – or as far down as I could reach, very hard surface. And I tried to dig into it, and it clearly felt to me like ice. Had it been packed powder, I think I would have been able to dig into it. And that’s why I told the ski patrol guy, the first one who arrived, that I fell on ice" (T. 242 - 243).
The claimant testified that as he waited for assistance to arrive, he looked up and noticed "something about the gutters didn’t seem right . . . it didn’t look like the system was complete or something of that nature" (T. 245). He went on to testify that "there was dripping or some water coming down onto the deck area or right close to where I was on the ground" (T. 246).

On cross-examination the claimant testified that he had skied at Belleayre four or five times a year for several years preceding the date of his accident and each time he had visited the Overlook Lodge. He confirmed that on the morning of February 15, 2006 he was wearing the boots received as Exhibit 27 and that he placed his skis and poles on a ski rack and walked toward the bar door entrance to the Overlook Lodge with his ski bag in his right hand. The boots were five or six years old at the time of the accident. An individual shoveling snow from in front of the bar doors motioned for the claimant to pass and as he approached he slipped in an area one or two strides from the front edge of the decking. He did not trip nor did he stumble prior to slipping on the surface. He laid on his back in the same position for approximately fifteen minutes, which he estimated was the time between his original fall and his removal from the area on a backboard. During that period he felt the area around him and noticed a difference between the texture of the surface covering the area at his shoulders and at the area near his legs and hips. He testified that the surface of the ground near his legs and hips was extremely hard. Mr. Davis confirmed that his examination of the ground around him was conducted while he was wearing gloves on his hands. He also confirmed that he observed water dripping in the area near where he fell.

Claimant was examined with regard to certain portions of his examination before trial testimony relating to the cause of the slippery condition he encountered that morning. He testified as follows at the examination before trial and thereafter submitted the following corrections to the answers provided[2]:
Question: "Now, do you know or have any idea or understanding as to what may have caused what you sensed as a slippery condition that morning?"

Answer: "Well, water must have come from somewhere to freeze on top of the snow to make – "

Question: "Now, is this something that you observed?"

Answer: "I can’t say I observed any particular thing" (T. 259).

Corrected Answer: "I observed the ice on top of the snow, but from my position on the ground, I could not then observe the source of the water - of where the water came from" (T. 261).
* * *
Question: "Well, is this something that you’re making a conjecture or speculation about, or is this based on an observation or information that you know?"
Answer: "Well I have to say it's more conjecture" (T. 263).
Corrected Answer: "At the time I fell, the source of the water was conjectural. This source is now conclusive upon subsequent investigation" (T. 264).

* * *

Question: "So, it is fair to say that there’s nothing that you observed or sensed or otherwise perceived on the day of the accident to make you aware as to what caused the specific condition that caused you to fall?" (T. 266).
Answer: "True."

Question: "Is that true?"

Answer: "Yes. Basically, yes."
Corrected Answer: "Yes. Basically, yes. At the time I fell and due to my injuries, I could not locate the cause of the condition, but it is now conclusive upon subsequent investigation" (T. 266 - 267).
At trial the claimant attempted to clarify his EBT testimony stating:
"I think I saw some evidence of a gutter problem and some water, but at the time, I probably didn’t make an association as to what it was causing or might have caused or could have caused" (T. 268).
Mr. Davis testified that the area where his fall took place appeared to him to be snow covered as he approached the bar door entrance. He testified that he frequently used the restroom located downstairs from the bar room doors on those occasions when he skied at Belleayre. The witness related that he had experienced a slip and fall while exiting the bar doors a year earlier. He acknowledged that the conditions at that time were different than those which existed on February 15, 2006 and that he did not report his prior fall to representatives of Belleayre. He testified that he had also seen other individuals slip at or near the bar doors but had not reported those incidents either. When asked how often he experienced slippery conditions in the area around the bar door entrance the witness responded "[v]ery seldom. Sometimes perhaps" (T. 273).

On redirect examination the claimant testified that he did not determine the conditions which caused his previous fall in front of the bar doors stating "I guess I didn’t take the time. We just got myself up and moved on towards the ski rack" (T. 276).

The claimant called Grace Mosconi who testified that she and her husband have known the claimant for over 30 years and had arranged to meet him at Belleayre on the morning of February 15, 2006. Mr. and Mrs. Mosconi are season pass holders at Belleayre and have skied there exclusively for approximately fifteen years. Mrs. Mosconi testified that in her experience "there’s usually snow or ice around in that area" (T. 280), referring to the bar door entrance to the Overlook Lodge at Belleayre. In fact, she had slipped and fallen while approaching the doors approximately one year prior to the date of claimant’s accident. After her fall she looked and observed snow and ice but did not at that time determine the source or cause of the ice in the area where she fell. She was assisted to her feet by her husband and advised a Belleayre employee at the Overlook Lodge ticket desk that she had fallen. She then informed an individual at the facility's administrative office of her fall and recommended that sand and salt be applied in the area. Mrs. Mosconi testified that she has also observed other individuals fall in the same location.

Mrs. Mosconi related that she and her husband planned to meet Mr. Davis and other friends at Belleayre on the morning of February 15, 2006. They were late arriving at the ski area. As they parked their car they overheard a message, presumably on the facility loudspeaker, requesting that they please report to the office. They entered the Overlook Lodge using an entrance other than the bar door entrance and were informed that Mr. Davis had been involved in an accident earlier that morning. They next went to the ski patrol room where they were informed that Mr. Davis had been injured and transported by ambulance to Margaretville Hospital. After several calls to the hospital they left the main office and skied with friends for the remainder of the morning. At some point they were informed by other individuals that the claimant’s accident had taken place outside the bar door entrance. When they returned to the Overlook Lodge for lunch at approximately noon the Mosconi’s took pictures of the area outside the bar door entrance, including a photograph received in evidence as Exhibit 28. The photograph depicts water dripping from a gutter which the witness identified as "[d]irectly over the two – the double bar door. Directly over the doors" (T. 294). Mrs. Mosconi also took photographs at Belleayre the day following the claimant’s accident. Exhibit 26, which depicts an individual working on a gutter outside the great room and near the bar door entrance, was taken by Mrs. Mosconi on February 16, 2006. Mrs. Mosconi testified that the downspout affixed to the corner of the building shown in Exhibit 26 ends approximately two inches above a hole or receptacle cut in the wooden deck. With regard to the leaking gutter depicted in Exhibit 28, when asked what she observed at the time the photograph was taken she replied "[b]y the time I saw all of those things, it was a couple of hours after he had fallen, and the sun was shining. . ." (T. 301). When asked why she took the photograph of the gutter she replied that it was "[b]ecause of my previous awareness of water leaking in that area" (T. 303). Exhibit 29, a photograph taken by the witness some time after the date of claimant’s accident, was received in evidence "for the sole purpose of showing the exterior of the building and the contour of the front of the Overlook Lodge with the positioning of the rooftops and the areas of the edges of the roofs" (T. 316).

On cross-examination the witness acknowledged that she did not fill out an accident report following her slip and fall in front of the bar doors approximately one year prior to claimant’s accident. She could not recall observing ice in the area where she fell that day. Nor could she recall observing water dripping from the gutters. She also related that she was not informed of the precise location where the claimant fell, although her understanding was that he had fallen approaching the lodge from the ski rack located outside the bar door entrance. She examined that area "an hour or more" (T. 321) after arriving at Belleayre while retrieving her skis from the ski rack outside the bar doors. She agreed that the sun was shining and temperatures became progressively warmer as the day went on and could not recall whether she had seen sand and salt on the deck that morning. Nor could she recall making any specific observations concerning the area two to three feet from the edge of the deck in front of the bar door entrance. Mrs. Mosconi testified that in her view the area outside the bar door entrance to the Overlook Lodge was poorly maintained.

On redirect Mrs. Mosconi testified that during the course of her previous visits to Belleayre she had observed icicles in the area over the bar doors and along the front and side of the Overlook Lodge.

Louis Mosconi, husband of Grace Mosconi, testified next. Mr. Mosconi related that he and the claimant are good friends who taught together in public schools for approximately 30 years. He described the claimant as an accomplished skier. Mr. Mosconi has skied for approximately 30 years, the last 15 exclusively at Belleayre. Each day he and his wife arrived at Belleayre they would follow a similar pattern in which they would park their car in the parking lot, walk to the ski racks in front of the bar doors where they would place their skis and poles and then walk through the bar doors into the Overlook Lodge. He described the boots received in evidence as Exhibit 27 as having a raised lug sole of the same type he would wear to the mountain prior to changing into ski boots.

The witness testified that he was very familiar with the bar door entrance to the Overlook Lodge. It was his testimony that on many occasions he observed the approach to the bar doors to be icy and that the deck outside the doors was covered in ice. From his observations Mr. Mosconi testified that the ice was caused by water leaking from the gutter above the bar doors. In addition, he had in the past observed that a downspout located to the left of the doors "just dumped right out on the ground . . . almost daily, especially later in the day when the sun - when it would melt" (T. 343). The witness testified that a year prior to the claimant’s accident his wife had fallen while walking from the ski racks referenced previously to the bar door entrance of the Overlook Lodge. According to the witness "as my wife approached the doors, there was a little downgrade, she slipped on that, her feet went out from under her, and she landed half on the deck and half on that mound approaching the deck" (T. 344). Following his wife’s fall the witness assisted her in standing and observed that the area was icy and that water was leaking from a gutter located above the bar door entrance. As described by Mr. Mosconi "[t]he water was dripping above the two doors going into the bar area. It was dripping onto the deck, and it was running along the deck and it was freezing . . ." (T. 346).

Mr. Mosconi testified that on February 15, 2006 he and his wife had parked their car and were making their way to the ski racks located outside the bar door entrance when they heard their names called over the facility loudspeaker. Mr. and Mrs. Mosconi walked to the administration office where they learned that Mr. Davis had been injured earlier that morning and was transported to a hospital. He and his wife contacted the hospital which informed them the claimant had been airlifted to Westchester Medical Center. At some point Mr. Mosconi and his wife were informed by unidentified individuals that the claimant had fallen "in the two doors going into the bar area" (T. 350). After lunch Mr. and Mrs. Mosconi went to the bar door entrance. There the witness observed "the gutters were leaking at that time" (T. 351). The witness also observed white salt pellets in the area in front of the deck and that a yellow traffic cone had been placed at that location. Mr. Mosconi reviewed Exhibit 28 which he described as a photograph depicting water leaking from the gutter above the bar door entrance of the Overlook Lodge. According to the witness he had observed the gutter leaking water "every time I went skiing" (T. 353). The water would collect on the deck and migrate away from the doors toward "the area adjacent just before the wooden deck" (T. 355).

On cross-examination the witness testified that friends informed him and his wife that the claimant had been injured while approaching the bar doors. No one specifically pointed out the area where the claimant fell and, in fact, Mr. Mosconi confirmed that it was his understanding the claimant had fallen while on the deck in close proximity to the bar doors. He testified that the area in front of the deck near the bar doors was snow covered and that he did not specifically observe ice in that area on the day of the claimant’s accident. He did, however, observe ice on the wood deck when he and his wife went to the bar door entrance later that day. With regard to his wife’s fall near the bar door entrance the witness testified that his wife "slipped right as you approach the deck and her feet landed on the deck" (T. 362). He agreed, however, that he had testified at an examination before trial that his wife had slipped right on the edge or beginning of the deck as a result of black ice.

Victor Kittle was called to the stand. He testified that he has been employed by the New York State Department of Environmental Conservation for approximately 30 years and has served as the Building Maintenance Supervisor at Belleayre for the last 18 years. Mr. Kittle testified that his duties include maintenance and repair of gutters, leaders and drains on the exterior of the Overlook Lodge and that as Building Maintenance Supervisor it is his responsibility to insure that gutters and other related appurtenances are in good repair. Any problems or repairs needed would be performed by one of four building maintenance department employees. He described the drainage system of the Overlook Lodge as including, on the south side, gutters along the exterior wall of the great room, over the bar doors and along the eaves outside the bar door entrance. Mr. Kittle confirmed that a ski rack is located near the bar door entrance to the lodge but testified that its exact location changes as the rack is moved daily so that the area can be groomed.

The witness testified that the distance from the bar doors to the edge of the wooden deck is approximately 12 feet in length. He agreed that the area located between the two red lines placed on Exhibit 14 is commonly used by pedestrians walking between the ski rack and the bar doors. Upon reviewing Exhibit 11 the witness indicated that the area circled in red indicates the location of a chain approximately 20 inches in length. The area depicted in the photograph is groomed regularly. According to Mr. Kittle, building maintenance employees are responsible only for the maintenance of the deck area outside the bar doors. Any snow surface is the responsibility of the ski patrol.

The witness reviewed Exhibit 10 and testified that the drainage system at the corner of the great room is missing a piece of downspout, the purpose of which was to direct water from a horizontal plane along the eaves of the building into a downspout attached to the building. If working properly and fully constituted the drainage system would take water from the roof of the building through the gutters and into the downspout. The water would exit the bottom of the downspout and flow under the snow along the front of the deck through a swale and into storm drains placed in the blacktop. The witness identified Exhibit 37 as a photograph fairly and accurately representing the manner in which the downspout was designed to disperse water onto the asphalt surface.

Mr. Kittle testified that the boards of the deck outside the bar door entrance are separated from one another by approximately a one-quarter inch space. He agreed that should ice or snow become embedded in those spaces water would not flow through the deck to the ground. Mr. Kittle testified that Frank Ingram left him a note informing him that he had replaced the gutters over the bar door entrance to the Overlook Lodge. The witness did not direct Mr. Ingram to replace the gutters nor did he inquire of him why the work was performed. He testified that the gutter above the bar door entrance is connected to a downspout which terminates above a hole cut in the wooden deck. The witness agreed that Exhibit 40 depicts the bottom of the downspout and that it does not appear that all of the water is draining through the opening in the deck. Although the witness testified that Exhibit 40 fairly represents the design of the gutter system around the bar doors as it existed on February 15, 2006 he could not state that the position of the downspout as depicted in the photograph was the same as existed on that date.

On cross-examination the witness testified that he had not noticed water dripping from the gutter above the bar door entrance prior to February 15, 2006. He estimated that there are between 6 and 12 circular drains, each approximately 12 to 14 inches in diameter, located approximately 20 inches from the outside edge of the wood deck in front of the bar door entrance. He stated that although the photograph received in evidence as Exhibit 40 appears to show that the downspout adjacent to the bar doors is not fully aligned with the hole cut in the wood decking, the photograph (Exhibit 40) is dated August 10, 2006, six months following the date of the incident. Mr. Kittle testified that during winter months a 55 gallon garbage can and a 55 gallon recycling barrel are placed in that particular corner of the decking.

The claimant next called Adrienne Citrin who testified that she has skied for approximately 35 years, including the last seven years at Belleayre. Ms. Citrin testified that she has in the past been involved in a slip-and-fall on what she described as ice on the deck outside the bar door entrance to the Overlook Lodge. According to the witness, she reported her fall and the existence of icy conditions on at least two of the "three or four" occasions when she was caused to slip and fall on ice near the bar door entrance (T. 465). Although the witness stated that she had in the past observed what she described as "a hanging gutter off the building on that side" (T. 462) she did not make any observations at the time of her previous falls as to what had caused the icy condition upon which she slipped nor did she ever examine the gutters above the bar door entrance. The only gutter observed by the witness was located opposite the great room near the bar windows. She did not recall having seen water coming out of the gutter or downspout on previous occasions.

On cross-examination Ms. Citrin admitted that she was not advised of the exact spot where the claimant had fallen. She had testified previously on her direct examination that she was informed by Grace Mosconi that the claimant fell near the bar door entrance to the Overlook Lodge. Ms. Citrin also reiterated testimony previously given on direct examination that the boots received in evidence as Exhibit 27 were similar to the type of after-ski boots which she would normally wear prior to skiing. She stated, however, that the after-ski boots she wore had better tread than that on the boots received as Exhibit 27. Although she testified that the area between the ski rack and the deck outside the bar door entrance could be slippery at times, she admitted that she had never observed any other person fall at or near the bar doors. Ms. Citrin did not complete a written report or complaint on those occasions where she advised Belleayre facility staff of slippery conditions outside the bar doors nor did she ever determine the cause of the ice upon which she slipped.

The claimant called Thomas Parisi who testified that he is a Licensed Professional Engineer and familiar with various aspects of building drainage systems. Mr. Parisi testified that he made two site visits to inspect the area where the claimant slipped and fell. The first such visit occurred on August 10, 2006. He described that visit by saying "I just walked around the premises, looked at it, and I took some pictures" (T. 481). During the visual inspection he noticed that a piece of the gutter system which connected the gutter to a vertical downspout attached to the exterior great room wall was missing. He examined the leader or downspout and observed a hole in the bottom of the downspout just above the grade line. Although the witness testified that the design of the gutter system at the Overlook Lodge was "probably okay" (T. 483), it was his belief that it should have been equipped with snow guards and ice melting heat trace coils in the gutters and downspouts. In Mr. Parisi's opinion the gutter system he observed outside the bar room entrance to the Overlook Lodge on August 10, 2006 was not properly constructed because the downspout was detached from the gutter and there was a hole at the bottom of the downspout near ground level. Because the gutter was detached, rainwater collected in the gutter would "just go straight down in the corner of that building" and collect on the ground beneath (T. 484).

Photographs taken by the witness during his site visit on August 10, 2006 were received in evidence as Exhibits 45 - 49. Comparing Exhibit 13, a photograph taken by Belleayre employees on February 15, 2006, and Exhibit 45, one of the photographs taken by the witness on August 10, 2006, Mr. Parisi testified that both photographs show that a piece of the drainage system which connects the gutter and downspout attached to the exterior great room wall is missing. The witness testified that as a result of the missing connection between the gutter and downspout, water collected in the gutter "gets channeled to this point here and it just simply spills out onto the ground, the grade level, and also against the building" (T. 498). He estimated that the water exiting the gutter would fall within a three- foot by three-foot area directly beneath the opening created by the missing portion of the gutter system. Mr. Parisi stated that he observed drains in the blacktop area outside the bar door entrance which he estimated ran in a line parallel with the building approximately four to five feet from the building edge. He described the contour of the blacktop in the area of the drains as "highly irregular" (T. 504). The witness did not take level or grade measurements but visually observed the area around the drains which he stated appeared to pitch towards the deck.

Mr. Parisi conducted a second site inspection on November 13, 2006. During this inspection he noted that the downspouts in the area around the bar door entrance were constructed so as to discharge water onto the ground below the deck when, in his opinion, the water should have drained into a subterranean piping system. Instead, water collected in the gutters ran through the downspouts and emptied onto a sloped area underneath the wood decking. During his site visit in November, 2006 Belleayre was conducting snow-making operations which, according to the witness, "actually created like a light mist and raining conditions. So we were able to see, you know, water accumulate in the gutters and also go out into the leaders" (T. 519). The witness also took certain measurements during his November, 2006 inspection by which he determined that the deck outside the bar door entrance pitched approximately two inches from the doors to the outside edge of the deck, a distance of eleven feet, one inch. The distance from the top of the asphalt surface to the top of the wood deck was two inches. He testified that in November, 2006 the gutter and downspout which had been previously attached to the outside corner of the great room wall had been removed.

The witness reviewed Exhibit 37 which depicts the downspout attached to the great room corner and a hole at the bottom of the downspout at approximately ground level. According to the witness the downspout should have tied into an underground piping system but did not. Instead, the downspout terminated below ground level. The witness theorized that the hole at the bottom of the downspout was an attempt "to relieve pressure. When water comes down this leader, since it can't go out the other end, . . . it would come out this hole and onto the ground. . . it would prevent the leader from backing up" (T. 528). Mr. Parisi testified that the downspouts attached to the gutter above the bar doors terminated one to two inches above holes cut in the wood decking. In his opinion the downspouts should have properly passed through the deck and discharged water underneath the deck. Because the downspouts ended one to two inches above the holes cut in the deck, it was his opinion that the gutter system above the bar doors was improperly constructed. The witness also reviewed Exhibit 28, a photograph depicting water leaking from the gutter above the bar door entrance. He stated his opinion that water dripping from the gutter would fall and create ice upon the deck surface which would "gradually gravitate and lead towards the asphalt area" (T. 533). Finally, the witness testified that the various deficiencies noted in his testimony lead him to conclude that the system of gutters and downspouts in the area outside the bar door entrance to the Overlook Lodge was not functioning properly on the date of the claimant's accident. In this regard Mr. Parisi cited the missing portion of downspout between the gutter and vertical downspout on the corner of the great room which would have permitted water to run directly from the gutter to the ground below. In addition, even had the downspout been properly connected to the gutter, the hole at the bottom of the downspout would have permitted water to discharge directly onto the ground in front of the wood deck. Also, the downspouts attached to the gutter above the bar doors do not continue through the deck but rather terminated one to two inches above the decking.

On cross-examination the witness testified that he was not aware of any testimony or other proof demonstrating that water was dripping from the gutters above the bar doors on the days preceding claimant's accident.

The claimant rested his case at the conclusion of Mr. Parisi's testimony and the State moved to dismiss the claim based upon the claimant's failure to establish a prima facie case of negligence. The Court reserved on the motion and the defendant called Christina Amundsen to the stand.

Ms. Amundsen testified that she was employed as a Ski Patroller at Belleayre Mountain on February 15, 2006. On that date she overheard a radio call relating an accident which had occurred near the Overlook Lodge. She skied down the mountain and arrived at the scene where she assisted other patrollers in stabilizing the claimant by holding his head in a stationary position. Although Ms. Amundsen did not make any specific observations of the ground around where Mr. Davis was lying, she did not experience any difficulties in maintaining her footing while assisting in treating the claimant nor did she observe any of the other ski patrollers slipping due to icy or slippery conditions. Nor did she experience difficulty in maintaining her footing while assisting the other patrollers in carrying the claimant from the scene on a backboard.

On cross-examination the witness testified that she had not previously noticed ice on the deck near the bar door entrance of the Overlook Lodge although she had observed snow on the deck on prior occasions. She described February 15, 2006 as "a beautiful sunny blue day" (T. 555). The witness testified that she and other ski patrollers were responsible for addressing hazards which might exist in the area outside the deck in front of the bar door entrance. She testified that she skis past the bar door entrance every morning and did not recall observing any hazards in the area on the day of the claimant's accident.

The defendant rested its case at the conclusion of Ms. Amundsen's testimony and renewed it's motion to dismiss for failure to establish a prima facie case. The Court reserved on the motion as well as claimant's motion for a directed verdict.

As landowner, the State owes a duty to keep its premises reasonably safe in view of the existing circumstances (see Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233 [1976]). The State is not an insurer, however, and negligence may not be presumed from the mere happening of an accident (Tripoli v State of New York, 72 AD2d 823 [1979]; Mochen v State of New York, 57 AD2d 719 [1977]). In order to establish liability in a slip and fall case, it is incumbent upon the claimant to establish by a preponderance of the credible evidence that a dangerous condition existed, that the defendant either caused the alleged dangerous condition or had actual or constructive notice of its existence and that the dangerous condition was a proximate cause of the accident (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Lewis v Metropolitan Transp. Auth., 64 NY2d 670, affg on op 99 AD2d 246 [1984]; Dapp v Larson, 240 AD2d 918 [1997]). Constructive notice can be established "through evidence that the defendant 'was aware of an ongoing and recurring unsafe condition which regularly went unaddressed' " (Mazerbo v Murphy, 52 AD3d 1064, 1066 [2008], quoting Kivlan v Dake Bros., 255 AD2d 782, 783). So long as "a property owner has actual knowledge of the tendency of a particular dangerous condition to reoccur, he [or she] is charged with constructive notice of each specific recurrence of that condition " (Mazerbo v Murphy, 52 AD3d at 1066 [internal quotations and citations omitted]; see also Irizarry v 15 Mosholu Four, LLC, 24 AD3d 373 [2005]; Roussos v Ciccotto, 15 AD3d 641 [2005]; Lowe v Spada, 282 AD2d 815 [2001]; Loguidice v Fiorito, 254 AD2d 714 [1998]; Columbo v James River II, Inc., 197 AD2d 760, 761 [1993]). However, proof which establishes no more than a "general awareness" that outdoor areas become wet or icy during inclement weather is insufficient to establish constructive notice of the specific condition causing an injury (Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005], citing Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]; see also Rivera v 2160 Realty Co., L.L.C., 4 NY3d 837 [2005]). Absent evidence as to the origin of an icy condition, the mere fact that icy patches had been noticed before an accident is insufficient to establish a prima facie case of negligence (Simmons v Metropolitan Life Ins. Co., 84 NY2d 972 [1994]). "General awareness that an icy condition might exist is not sufficient, without more, to constitute notice of a particular condition" (Stoddard v G.E. Plastics Corp., 11 AD3d 862, 863 [2004]).

The Court finds, upon the proof presented at trial, that the claimant failed to establish both the existence of ice or that any such condition was caused by the allegedly defective condition of the gutters on the Overlook Lodge. Only the claimant testified that the walkway in front of the wooden deck was icy on the morning of February 15, 2006. Claimant did not actually see ice at the location where he fell. Rather he determined that he slipped on ice by feeling the relative texture and consistency of the surface of the ground at his head and his legs, while wearing gloves on his hands. In this regard claimant testified that while he was lying on his back he tried to dig his gloved fingers into the surface near his hips. He testified he "tried to dig into it, and it clearly felt to me like ice" (T. 242-243). On cross-examination the claimant admitted to wearing gloves on his hands, a fact which, in this court's view, makes it unlikely the claimant could discern the difference between ice and hard-packed snow with any reasonable level of certainty or precision.

Each individual who had an opportunity to inspect the area of the accident after it occurred testified that they observed no ice. Mr. Zimmerman testified that he examined the area where he observed the claimant lying on his back both before entering the area to assist in treating the claimant and at the time he and Mr. Vitarius returned for the purpose of taking photographs. Neither time did the witness observe ice. Nor did he observe ice when he examined the ground beneath the claimant prior to crossing the area while assisting the other patrollers in transporting the claimant from the scene on a backboard. Mr. Ingram shoveled and salted the deck in front of the bar doors before the accident occurred and testified that although he did not specifically observe the area where the claimant was lying, he did not slip on the walkway leading to the deck nor did he observe any of the patrollers slip while providing the claimant assistance. William Vitarius and Christina Amundsen were the only other witnesses to testify at trial regarding the conditions on the date of the accident. Mr. Vitarius testified that he inspected the area where the claimant was lying to insure it was safe to enter. He did not see ice in the area and he did not slip or otherwise lose his footing while assisting the claimant. Nor did he see any of the other responding ski patrollers slip. Ms. Amundsen did not recall any specific observations of the ground around the claimant. She did testify, however, that she experienced no difficulty in maintaining her footing nor did she observe the other ski patrollers at the scene slip while treating and transporting the claimant.

Even if it were assumed that ice existed in the area of the claimant's accident, a fact which the Court finds was not established at trial, claimant failed to establish that the defective condition of the gutters and downspouts created the icy condition which caused his accident (see Mosquera v Orin, 48 AD3d 935, 937 [2008]; Drissi v Kelly, 30 AD3d 1009 [2006]; Richardson-Dorn v Golub Corp., 252 AD2d 790, 791 [1998]; Segretti v Shorenstein Co., E., 256 AD2d 234 [1998]). "Significantly, it is well settled that 'conclusions based upon surmise, conjecture, speculation or assertions are without probative value' " (Richardson-Dorn v Golub Corp., 252 AD2d at 791 [citations omitted]; see also Acevedo v York Intl. Corp., 31 AD3d 255 [2006], lv denied 8 NY3d 803 [2007]).

Claimant's testimony at trial that while he was lying on the ground he observed water "coming down onto the deck area or right close to where I was on the ground" (T. 246) was undermined on cross-examination by his prior testimony at his examination before trial in which he admitted that any conclusion regarding the source of the ice was based on nothing more than conjecture.

When asked at his EBT what may have caused the icy condition upon which he slipped claimant testified "Well, water must have come from somewhere to freeze on top of the snow" (T. 259). Asked whether he observed such a condition or whether his statement (above) was the result of conjecture claimant stated "I can't say I observed any particular thing" (T. 259) and "well, I have to say it's more conjecture" (T. 263). Claimant's corrected answer to the question regarding the cause of the alleged ice similarly failed to provide a factual predicate for the conclusion that it was caused by the defective gutters or downspouts. In the corrected answer, the claimant admitted that "[a]t the time I fell, the source of the water was conjectural. This source is now conclusive upon subsequent investigation" (T. 263).

In view of the claimant's admissions during his examination before trial that his conclusion regarding the source of the alleged ice was nothing more than "conjecture" and that he neither "observed or sensed or otherwise perceived" anything that would make him aware of the cause of the condition (T. 266), the Court does not credit his contrary trial testimony that he observed water dripping from the gutter on the date the accident occurred.

Claimant's theory of liability appears to rest on the contention that, due to rising temperatures on the date of the accident, melting ice or snow from the roof caused water to drip from the defective gutters and form ice in the area where Mr. Davis slipped and fell. How such rapid ice formation could occur with temperatures on the rise was left unexplained. There is no proof establishing that water was dripping from the gutter attached to the exterior great room wall at the time claimant slipped and fell and, without evidence that water was dripping from the gutters above the bar doors prior to the accident, claimant's expert's conclusion that this dripping would create ice upon the deck surface which would "gradually gravitate and lead toward the asphalt area" is of no probative value. In Drissi v Kelly, supra, the Appellate Division rejected an expert's conclusion that the absence of gutters created a recurrent dangerous condition which was the proximate cause of the plaintiff's accident because "the opinion of plaintiffs expert that ice formed in the area of plaintiff's fall as the result of the absence of gutters on one of defendants' buildings was speculative and lacking in factual foundation, and plaintiffs otherwise failed to present any evidence to support that theory" (Id. at 1010). Here, too, Mr. Parisi's conclusion that the defective gutters were the cause of the alleged ice is speculative and without probative value.

No argument was made that the allegedly defective condition of the gutters and downspouts caused the formation of ice in the days or weeks preceding the accident. Had such an argument been made, any such conclusion could only be based on mere speculation (see Bernstein v City of New York, 69 NY2d 1020, 1022 [1987]; Campagnano v Highgate Manor of Rensselaer, 299 AD2d 714, 715 - 716 [2002]; Chapman v Pounds, 268 AD2d 769, 771 [2000]; Jornov v Ace Suzuki Sales & Serv., 232 AD2d 855, 857 [1996]). No meteorological evidence of temperature fluctuations support the conclusion that the ice upon which the claimant allegedly slipped formed prior to the date of the accident. Indeed, the only meteorological evidence adduced at trial indicates that temperatures remained below freezing from February 12, 2006 through the morning of the accident on February 15, 2006. At 6:30 a.m. on February 15, 2006 the recorded temperature was 33° (Exhibit 1) and the temperature continued to rise for the remainder of the day (Exhibits 2 and 6). In sum, there is simply no evidence to support the conclusion that the ice upon which the claimant allegedly slipped was caused by the condition of the gutters or downspouts either on the date of the accident or prior thereto.

The fact that Grace Mosconi and Adrienne Citrin previously slipped on ice in the area of the bar door entrance provides no support for the conclusion that the defendant had notice of the icy condition that allegedly caused the claimant's accident or that the defective gutters were the cause. Such proof establishes no more than a "general awareness" that outdoor areas become wet or icy during inclement weather and is insufficient to establish notice of the specific condition that allegedly caused the claimant's injury (Solazzo v New York City Tr. Auth., 6 NY3d at 735). From the proof adduced at trial it is equally likely that claimant slipped on hard-packed snow, a condition not out of character with conditions at a ski resort (see Mercer v City of New York, 223 AD2d 688, 691 [1996], affd 88 NY2d 955 [1996] [grease and oil spots on floor were necessarily incidental to its use as a garage and should not form the basis for liability]; Tripoli v State of New York, 72 AD2d 823, 824 [1979] [depression in picnic area of State Park not so out of character with surroundings as to be the foreseeable cause of accident]). Notable in this regard is the fact that the tread on claimant's shoes (Exhibit 27) was quite worn. While negligence may be proved circumstantially, and claimant need not " 'positively exclude every other possible cause' of the [incident] but defendant's negligence . . . [his] proof must render those other causes sufficiently 'remote' or 'technical' to enable [the fact finder] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence" (Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743, 744 [1986] [citations omitted]; see also Bernstein v City of New York, 69 NY2d at 1022). In the Court's view, the evidence in this case was insufficient to permit the inference that the claimant slipped on ice or that if there was ice, it was caused or created by the defective condition of the gutters.

Based on the foregoing, the Court finds that the claimant failed to establish by a preponderance of the credible evidence that the negligence of the defendant was the proximate cause of his injuries. Accordingly, the claim is dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.







September 17, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[1].Numbers in parentheses preceded by the letter "T" refer to the page numbers of the trial transcript.
[2].Quotations of claimant's EBT testimony are taken from those portions recited on the record at trial.