Travis Williams alleges in his claim that the defendant failed to remove ice
and/or snow from the stairwell of a building it owned or operated on February 8,
2001. On that day, claimant and three other employees were transporting a large
spool of wire. Because of the dangerous snow and ice conditions, he alleges,
the spool of wire - weighing between 250 and 300 pounds - tumbled down the steps
and struck claimant, causing him injury. Trial on the matter was held on
January 23, 2008. This decision relates only to liability.
On the day of the accident, claimant was employed by Rockland Electric as an
electrician apprentice. Rockland Electric had been hired to perform electrical
renovations in the boiler room of the Pyramid Reception Center in the Bronx, a
juvenile detention center. Mr. Williams and his coworkers, Christopher Bishop,
who was the foreman, and David Arlotta, a fellow apprentice, had been to the
facility between six and ten times previously, over approximately three months.
Their procedure had been to drive the van to the “sally port” or
loading dock area, remove their equipment, and take the steps down a stairwell
leading down to the kitchen area. Through the kitchen, the workers could then
gain access to the boiler room where they were working. Although there was an
elevator from the sally port, some witnesses said it was out of order on that
day. They had never used the elevator in any event. Another elevator, accessed
through the main door and going down to the kitchen supply area or the boiler
room itself - the testimony was not clear on this point - “wasn’t
convenient” according to Mr. Bishop.
On this record, none of the workers
was ever told that the loading dock stairwell leading down to the kitchen was
the only way to enter the building to do their work.
A snowstorm three days earlier had dropped approximately 3½ inches of snow
according to the climatological data. [Exhibit F]. In the days following the
snowfall and preceding the accident the weather temperature had varied to as
high as forty five degrees. Nonetheless, according to claimant and his
coworkers, snow and ice covered the entire area of the loading dock, including
the top of the step area, and the stairs. Claimant observed that the snow was
packed and “there was an unevenness about it.” [T-82].
Describing the stairs and the stairwell, Mr. Bishop said they were very narrow
stairs, in not very good condition. The stairs ended at the bottom in a landing
facing a wall, with the heavy, solid door to the kitchen to the right. [Exhibits
C,D,E]. It was his recollection that all the stairs had a cracked concrete
surface similar to the photograph depicting the landing step just before the
bottom of the stairwell and the door. [Exhibit E]. That step contains a piece
of metal “kind of like laid into the concrete.” [T-27]. He said
there was snow and ice in the landing area where they placed the spool. He
could not remember exactly what the condition of the stairs themselves was, but
knew there was still snow from a snowfall some days earlier that they were
“trekking through.” [T-32]. He could not say whether it had been
shoveled, or if there had been some tapping down “from people walking up
and down the steps,” but he knew “there was snow there.”
[T-33]. There was also a pile-up of snow in the back corner, some ten feet away
from the top landing.
That morning, Bishop and Arlotta removed a spool of wire weighing between 250
and 300 pounds from the van, placing it on the landing at the top of the
stairwell leading down to the kitchen. Mr. Bishop said that as they tried to
lower the spool from the van, it “crashed” to the ground it was so
heavy. [T-30]. He could not recall how they got it there - by rolling or other
means - but he and Arlotta moved the spool to the top landing by the stairwell,
some distance back from the stairs themselves [see Exhibit C], placing it
on its flat end. None of the witnesses quantified how far back from the stairs
the spool was placed, indicating only that it was where the photographer would
have been standing to take the photographs in Exhibit C. They then went inside
to check in with the security department while Mr. Williams continued to unload
tools and other material they would need.
Mr. Williams had been up and down the stairs that morning approximately two or
three times, he said. Just as Mr. Bishop and Mr. Arlotta had walked by the spool
of wire as they went up and down the stairs, so had Mr. Williams. All said they
had not disturbed the spool and all declared at trial that it was placed on its
flat end, although in earlier deposition testimony Mr. Williams had been unsure,
and Mr. Bishop appeared to base his memory of placing it on its flat end as part
of his custom and practice. Mr. Williams did not see Bishop and Arlotta place
the spool as he was not “focused” on them. [T-93]. The men had all
spoken to one another shortly before the trial and admitted to discussing the
While the others were inside, Mr. Williams went down to the bottom of the steps
with some of the equipment he had unloaded, and waited on the outside for the
solid locked door to be opened from the inside. Suddenly, Mr. Williams heard a
noise, turned, and saw the spool of wire tumbling down toward him. His only
retreat was to try to “jump over it” in an attempt to avoid the
spool, but he was unsuccessful and became trapped on the bottom by the spool of
As Mr. Bishop came from the kitchen to open the solid door, he saw that it
appeared to be stuck. After applying some force, he was able to open it 3 to 4
inches, and saw the spool at the bottom of the landing. He was able to open the
door a little more, and reach his arm through to “roll it a little more
to the right” [T-36]. At that point, he said he was able see Travis kind
of walking up the steps, . . . he was even like moaning,” [Ibid.].
He and Mr. Arlotta were able to get out the door - “at this point Travis
was maybe like halfway up the steps, like working his way up. We kind of helped
him to the top of the steps.” [Ibid.].
On cross-examination Mr. Bishop clarified that prior to the accident, he had
walked up and down the stairs to the kitchen once or twice that morning [T-46].
Indeed, he had propped the stairwell door open earlier, and had carried perhaps
a drill and some wires inside. He himself did not slip on the stairs, and was
able to open the door without snow getting in the way. He confirmed that there
was no snow piled up in the staircase itself, but only eight to ten feet away.
He also confirmed that he knew of an elevator next to the staircase used by the
kitchen staff, that was operational on that day. [T-52-53]. He said they had
never asked permission to use the elevator nor had it been offered. The plan
for getting the spool into the building had been for all three workers to lower
it step by step.
The spool was taken out of
the van first because all the rest of their equipment was behind it. It was
completely his and Mr. Arlotta’s decision where and how to place the
spool. No one from the State of New York told them to take it out, or how or
where to place it.
Dave Arlotta said he went in through the front door that morning to check them
in, but could not recall how he got back to the area where they had parked the
van. He had taken at least one trip in through the kitchen to the boiler room
with a milk crate’s worth of tools. He recalled that the area was very
icy and there was snow on the stairs leading down to the kitchen. He slipped as
he walked down the stairs. He, too, recalled setting the spool down on its flat
end, in an area that was packed with snow, but could not “recall exactly
where [they] actually set the spool down,” except that it was at the top
of the stairs.[T-63].
When they tried to come back out the kitchen door, he said they could not get
out because the spool of wire was blocking the door. He “. . . noticed
Travis was laying [sic] halfway . . . up the stairs . . . ” [T-64].
George Green worked as a maintenance supervisor at Pyramid Reception Center on
February 8, 2001. He supervised five workers and was responsible for the
mechanical operation of the building as well as keeping the outside areas clean.
His own workday began at 6:00 a.m. One porter came in at 6:00 a.m. also, and
then another came in between 8:00 and 8:30 a.m. Two more came in at 10:00 a.m.
and 10:30 a.m. respectively.
With regard to snow and ice removal, if the snow was under one inch, they would
sweep it, or scrape it, starting from “161st Street and between Washington
and Elton” in front of the building. [T-101]. If more than two inches had
fallen, they would call in a contractor. Whatever the snowfall, however, the
maintenance crew would “try to keep a hold of it [in] the parking
lot.” [T-101]. They had “antiquated” equipment, but would
use shovels or the one snow blower they possessed. In terms of the order of
snow removal, the areas were prioritized, with the main streets first, then the
side streets and the perimeter of the building, the parking lot, and finally the
steps going down to the kitchen. Those steps were taken care of by his crew or
the kitchen crew, he said. Usually, however, the kitchen crew did not utilize
those stairs because they were “pretty corroded”. There was an
elevator immediately adjacent to the steps to the kitchen. [T-104]. The
elevator directly to the boiler room was not operational except in a dire
emergency, and required jumping the safety relays to operate.
When there was a significant snowfall, it could take one to two days to clear,
Mr. Green said, and even then they were basically pushing snow about until it
would either melt or get taken away. They would push snow to the sides of the
parking lot in areas where the lot would not be utilized. Snow would be pushed
near the steps leading down to the kitchen, approximately twenty (20) feet from
the steps against a wall, as well as into a corner wall approximately eight to
ten feet from the staircase, as shown where there is furniture piled up in
Exhibit E. He said there was always a problem with ice forming on the steps
leading down to the kitchen, because the drains on each platform of the stairs
would clog up, or freeze up, and icing would follow. They would throw salt on
it but there was no guarantee that it would work because of the drainage issue.
Mr. Green could not recall if there was snow and ice on the steps and loading
area on the day of the accident, nor did he recall what the weather conditions
Gloria Gordon, the head cook at the Pyramid Reception Center confirmed that her
kitchen staff used a freight elevator immediately adjacent to the steps up on
the platform of the loading dock. [See Exhibit C]. The elevator was also
used by whatever contractors might be working at the facility. She could not
recall whether there was snow and ice on the steps or the sally port area on
February 8, 2001, nor did she remember what the weather conditions might have
Other than incident reports attesting to the happening of the accident
[Exhibits A and B], no other relevant evidence was submitted and no other
Although as an owner the State of New York has a duty to prevent foreseeable
risks of harm, it is not the insurer of public safety. Its duty is to exercise
“reasonable care under the circumstances . . .” [Basso v
Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of
harm. To establish a prima facie case of negligence generally the
following elements must exist: (1) that defendant owed the claimant a duty of
care; (2) that defendant failed to exercise proper care in the performance of
that duty; (3) that the breach of the duty was a proximate cause of
claimant’s injury; and (4) that such injury was foreseeable under the
circumstances by a person of ordinary prudence.
For premises liability, assuming the State did not create the dangerous
condition, a claimant must show that the State had actual or constructive notice
of the condition and failed to act reasonably to remedy it. Gordon v
American Museum of Natural History, 67 NY2d 836, 837 (1986). Creation of a
dangerous condition constitutes actual notice. Lewis v Metropolitan Transp.
Auth., 99 AD2d 246, 249 (1st Dept 1984), affd 64 NY2d 670
(1984). The defendant has a duty to “act as a reasonable [person]
in maintaining his property in a reasonably safe condition in view of all the
circumstances, including the likelihood of injury, to others, the seriousness of
the injury, and the burden of avoiding the risk.” Miller v State of
New York, 62 NY2d 506, 513, (1984); Preston v State of New York, 59
NY2d 997, 998 (1983).
To establish liability claimant must show that the duty of care was breached in
the instant case by proving that a dangerous condition existed relative to the
snow and icing on the parking lot area steps, that the defendant had either
created the alleged dangerous condition or had actual or constructive notice of
such condition and failed to remedy it, and, most significantly, that such
dangerous condition was a proximate cause of claimant’s accident and
It is the claimant’s burden to prove his case by a preponderance of the
credible evidence. As the trier of fact and law, charged with assessing the
credibility [see Raynor v State of New York, 98 AD2d 865, 866 (3d
Dept 1983)] of the various witnesses and evaluating the evidence, the Court
finds that the defendant is not responsible for the claimant’s accident
and resulting injury. Upon review of all the evidence, including listening to
the witnesses testify and observing their demeanor as they did so, the Court
finds that claimant has not established an adequate basis for the state’s
liability by a preponderance of the credible evidence.
Claimant asserts that as landowner, the State had a duty to clear away snow and
ice on the stairwell and dock, given that the contractors they hired would be
utilizing it as their exclusive entry and exit point. He alleges that no safer
alternative for getting equipment in and out of the building was ever provided.
The only access point provided was down the stairwell, through the kitchen, and
from there to the boiler room. Although there was a loading dock elevator -
going from the sally port area into a kitchen supply room - there was a
four-foot rise to that dock making it inconvenient, and claimant avers they were
never given permission to use it in any event. Another alternative elevator
inside the facility, to the boiler room, also inconvenient, was (apparently)
broken - although this is not clear from the testimony.
Claimant is also asserting that the paved area above the stairwell was
dangerously slanted, a condition that made a failure to clear snow and ice more
Claimant’s theories of State liability are somewhat convoluted, largely
to avoid, it would seem, an essential failure in the proof. Whatever failings
the State may have shown in keeping snow and ice off the landing and stairs, any
breach of that duty was not a proximate cause of this unwitnessed accident.
Indeed, to find liability under these circumstances, as the trier of fact, the
court would be basing its underlying assessment of proximate cause on
“nothing more than speculation.” See Curran v
Esposito, 308 AD2d 428, 429 (2d Dept 2003); Smith v Wisch, 77 AD2d
619 (2d Dept 1980), lv denied 51 NY2d 709 (1980); Penovich v
Schoeck, 252 AD2d 799, 800 (3d Dept 1998).
Unlike other cases where an individual slips and falls because of a snowy or
icy condition - even a recurring snowy or icy condition - here the injury to
claimant was not caused because he fell as a result of a snowy or icy condition,
but because the 250 to 300 pound spool of wire placed by his coworkers at the
top landing of a set of stairs fell on him. Indeed, he had descended and
ascended the same stairs without incident.
Nobody witnessed this accident. Claimant has not shown directly, or via some
permissible inference, how the accident occurred and where State liability would
be imposed in the sequence presented. Penovich v Schoeck, supra at
800. It is debatable whether snow and ice was present on the landing and the
stairs - based upon the weather documentation presented - and it is debatable
whether the coworker placed the unwieldy spool on its flat end. It is far more
likely that the coworkers rolled the wire spool to the top of the stair landing,
and kept it on its side for convenience, whatever their less than credible
testimony at trial to the effect that they placed the spool on its flat side.
Certainly, the fact that the spool moved far more logically suggests that it was
not placed on its flat side than does the notion that shifting snow or ice or
slanting terrain caused it to move the approximately three (3) to five (5) feet
to the stairs depicted in the photographic evidence. [See Exhibit C].
There has been no evidence to show that snow or ice or some other condition on
the landing caused the spool to move. No experts explained how snow shifting or
moving would have created a force sufficient to move the spool. Similarly, no
evidence was presented quantifying what the supposed slant of the landing area
was relative to the location of the spool and the staircase, from which it might
be inferred that the movement was caused by topography combined with snow and
ice. This is not a case where proximate cause can be inferred from the facts
and circumstances surrounding the injury and the logical inferences to be drawn.
Hartman v Mountain Val. Brew Pub
, 301 AD2d 570 (2d Dept
Even if there was snow and ice on the staircase and landing, the choice by
claimant’s coworkers to place the spool where they did constitutes an
intervening act and, as such, the defendant cannot be held liable for
claimant’s accident. See generally Lee v New York City Hous.
Auth., 25 AD3d 214, 217 (1st Dept 2005), lv denied 6 NY3d 708 (2006);
see also Episcopio v One Park Ave. LP, 17 Misc 3d 1136(A), 2007 NY
Slip Op 52313(U) (NY Co Sup Ct 2007).
Based on the trial testimony and other real evidence herein, claimant has
failed to establish that the State should be held liable in negligence for his
accident and resulting injuries by a preponderance of the credible evidence, and
claim number 107459 is hereby dismissed.
Let judgment be entered accordingly.