New York State Court of Claims

New York State Court of Claims

PAUL v. THE STATE OF NEW YORK, #2008-031-501, Claim No. 109802


Synopsis


Defendant was negligent in failing to clear snow and ice from campus steps. Liability apportioned 60% to Defendant, 40% to Claimant.

Case Information

UID:
2008-031-501
Claimant(s):
ABBY PAUL
Claimant short name:
PAUL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109802
Motion number(s):

Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
CELLINO & BARNES, P.C.BY: SAREER A. FAZILI, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 14, 2008
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Abby Paul (“Claimant”) filed claim number 109802 on September 7, 2004 alleging that Defendant’s negligence caused her to slip and fall on snow-covered steps on the campus of the State University of New York College at Brockport (“Brockport”) on January 26, 2004. I held the liability portion of this trial on January 8, 2008 in Rochester, New York.

Claimant called meteorologist Kevin D. Williams to describe the weather conditions on the day of the accident.[1] Mr. Williams relied upon the records comprising Exhibit 12 (particularly the January 26, 2004 local climatological data from the National Climatic Data Center) in forming his opinion about the weather, specifically around 5:30 p.m. on January 26, 2004. He testified that the conditions were “bitterly cold” with temperatures in the single digits. According to Mr. Williams, there were already six inches of snow on the ground when it started to snow around 2:00 p.m. that day. He described the snow that fell after 2:00 p.m. on January 26, 2004 as the “classic fluff that blows off your windshield.” Approximately 1½ inches fell between those hours, but the base accumulation of six inches did not increase.

Mr. Williams spoke specifically of the weather conditions in Brockport between the times of 5:45 p.m. and 6:00 p.m. He opined that it was cloudy with a light snowfall, but no weather advisories had been issued by the National Weather Service. He further explained that the conditions at Brockport at and around the time of Claimant’s fall did not constitute what a meteorologist would call a “storm in progress,” that is, having high winds, large temperature fluctuations, etc. In his opinion, there was no storm.

Claimant described the temperature as “very cold” and that it was snowing a little “light snow” on January 26, 2004. It was the first day of the spring semester and she had attended her 3:45 p.m. class and then walked to the dining hall for dinner. She testified she left the dining hall located on the west side of campus at approximately 5:45 p.m. and walked east, over the “mall” to Hartwell Hall for her 6:00 p.m. class. The mall appears to be the corridor running east/west through the length of the campus, parallel to Adams Street on the south and Holley Street/Monroe Avenue on the north (Exhibit 2). It has a wide sidewalk which Claimant described as mostly concrete with some “cobblestone” in the center (Exhibits 4 and 5). Claimant stated that on January 26, 2004 she observed snow on the sidewalk as she walked towards Hartwell Hall.

When she reached Hartwell Hall’s main entrance, commonly known as the “canopy,” she came to a stairway descending to the door. She described the stairway as five steps, a landing and another five steps. Exhibit 3 is a photograph of the steps. Each flight of steps has a handrailing down the center and on each side. Claimant indicated where she fell by placing a blue marking on the photograph.

Claimant testified she observed that the first flight of steps she approached was covered with ice and snow. She grabbed the center rail with her left hand as she began her descent, slipping slightly on the very first step, then, as she moved to the second step, her leg slipped out from underneath her, causing her to land on her other leg. She hung on to the center rail the whole time she was falling. She ended up sitting down for a couple of minutes, “stunned” and “crying.” As other people passed by her, a stranger helped her get indoors where she called University Police for assistance.

On cross-examination, Claimant stated the stairway was “ramped.” I took that to mean that the snow had been packed down in the right angle formed by the riser and the tread of the stairway in such a way that it looked like a miniature ski slope. Claimant believes that the steps on both flights were in similar condition.

David J. Gaylord responded to Claimant’s call to the University Police. At the time of this incident, Mr. Gaylord was a University Police Lieutenant and the Shift Supervisor on the 3:00 p.m to 11:00 p.m. shift. In addition to his supervisory duties, he also was on patrol, almost exclusively by motor vehicle. As such, the stairway in front of Hartwell Hall was not part of his regular patrol, but he did respond to calls for assistance.

As part of Mr. Gaylord’s duties, he was responsible for completing the “Service and Regulatory Incident Report” (“Report”) (Exhibit 1). In the narrative portion of the Report, Mr. Gaylord indicates that he inspected the area where he thought Claimant had fallen and noted that it was “not substantially different from other steps in the area - snow covered but passable” (Exhibit 1). Mr. Gaylord admitted that, at the time he wrote the Report, he was under the impression that Claimant had fallen on the flight of stairs closest to the main entrance of Hartwell Hall instead of the flight furthest from the entrance, across the landing.

Mr. Gaylord was questioned at length by both counsel concerning the condition of the stairs as he described them in the Report, his deposition testimony and at trial. Mr. Gaylord agreed with Claimant that the stairs were snow-covered, approximately two to three inches according to his deposition testimony. However, he did not agree with Claimant’s description that the stairs were “ramped.” Nor did he observe ice on the stairs.

Staff Assistant, Mark Hillman, oversees the Grounds Department at Brockport. He testified that responsibility for snow and ice removal on campus was divided among three different departments: Grounds, Housekeeping and Zone Mechanics. Each Department was assigned specific areas/responsibilities for snow and ice removal. Entranceways to campus buildings were divided between the Grounds Department and Housekeeping during regular working hours. According to Mr. Hillman, Hartwell Hall’s main entrance was Housekeeping’s responsibility.

The Grounds Department normally worked between 6:00 a.m. and 2:30 p.m., Mr. Hillman worked from 7:30 a.m. to 4:00 p.m. In January 2004, Mr. Hillman believed that Housekeeping worked in three shifts: 5:00 a.m. to 1:30 p.m.; 11:00 a.m. to 7:00 p.m.; and 3:00 p.m. to 11:00 p.m. He understood that the Zone Mechanic covering Hartwell Hall would respond to any problems identified between 1:30 p.m. and 3:00 p.m. when no Housekeeping staff were working. In addition, Mr. Hillman would also respond if called for assistance in the area. Calls for assistance, specifically snow removal, could come from students, faculty, staff and/or dorm switchboards in January of 2004.

In January 2004, Mr. Hillman supervised 12 people. They were responsible for snow removal on 8 miles of roads, 20 miles of sidewalks and 3 million square feet of paved area, including parking lots. They were not typically responsible for snow removal on stairways, except for, perhaps, a few on campus, but they did deliver salt, ice melt, shovels and ice chippers as called for to Housekeeping staff. Snow blowers were also available, as needed. It was Mr. Hillman’s understanding that the Housekeeping Staff inspected and did remove snow and ice as necessary at the start of their 6:00 a.m. shift, but that those areas were not routinely inspected and addressed again until the following day when the 6:00 a.m. shift returned to work.

Margaret A. Menear holds two positions on the Housekeeping Staff at Brockport. She is the Chief Janitor with supervisory responsibility for 90 to 100 people. I also understood that she was the Supervisory Janitor for the 25 people that tend to Hartwell Hall. Housekeeping performs its duties in campus buildings during designated shifts. Ms. Menear identified Hartwell Hall as a “5:00 to 1:30 building” that had no Housekeeping coverage after the shift ended at 1:30 p.m. The six people staffing Hartwell Hall during regular shift hours were responsible for snow and ice removal around the building entrances, specifically, the two flights of stairs and landing depicted in Exhibit 3. At the beginning of each winter season, the Grounds Department provides each staff member a personal shovel and ice chopper. If there is a heavy snow, Housekeeping calls Grounds for a snow blower and ice melt or salt. As part of her supervisory duties, Ms. Menear instructs her staff to inspect the entrances and stairs and, if they need to be shoveled and/or de-iced, they are to take care of that chore before attending to the work inside the building. She also tells them it is their responsibility to inspect the entrances and stairs before they leave at 1:30 p.m. Again, if the stairs need to be shoveled and de-iced, they are to do it themselves before they leave for the day.

After 1:30 p.m., Hartwell Hall has no Housekeeping staff on the premises. No single department had responsibility for clearing snow and ice from Hartwell Hall’s entrances and stairs after 1:30 p.m. and before 5:00 a.m. Brockport, instead, uses a reporting system. If anyone calls and reports a snow or ice problem, a Zone Mechanic is dispatched to take care of it. This system for coverage was explained in greater detail by Richard Lair, Defendant’s only witness.

Mr. Lair testified that, in January 2004, Brockport operated an emergency telephone number, answered by a “live person,” 24 hours each day, seven days each week. Any student, staff person or faculty member (and, one might presume, the University Police) could call this telephone number to report a problem on campus. Typically, Mr. Lair received a report each day of the telephone calls received between the hours of 3:00 p.m. the previous day and 7:00 a.m. that morning.

Exhibit 9 is Mr. Lair’s “Cellular Phone Log January 2004" - a compilation of these daily calls for that month. There were a couple “shovel and salt” calls at the Tuttle Complex on January 24, 2004 at 8:30 a.m. and 3:00 p.m.; no such calls on January 25; a slippery entry at Hartwell Hall on January 26, 2004 at 7:00 p.m.; a “need steps cleared of snow” at Tuttle North at 8:30 p.m. on January 27, 2004; “clear snow off rear ramp” at Harmon Hall on January 28, 2004 at 6:00 p.m. and, finally, on January 31, 2004 at 1:30 a.m., a door at Harrison Hall would not close because of ice.

Mr. Lair briefly discussed Exhibit 10, Brockport’s “Snow-Removal Program.” He stated that Brockport had no written guidelines for snow and ice removal when he commenced employment there in 1990. Since the first written policy in 1990, it has evolved over time, being reviewed yearly each October, by Mr. Lair and his staff. The last update was March 2004 but Mr. Lair testified that the reporting system was the same between January 2004 and March 2004. The reporting system is important because after 2:30 p.m., no one person or department has responsibility for inspecting campus walks, stairs and roadways for snow and ice.

It is well established that “[t]he State - just as any other party . . . is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived” (Flaherty v State of New York, 296 NY 342, 346 [citations omitted]) and with respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506). However, the State is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874).

In order to establish liability in a slip and fall case, Claimant must demonstrate, by a preponderance of the credible evidence, that a dangerous condition existed; that the State either created this dangerous condition, or had actual or constructive notice of the condition and failed to correct the problem within a reasonable period of time; and that this dangerous condition was a proximate cause of the accident (Goldman v Waldbaum, Inc., 297 AD2d 277; Dapp v Larson, 240 AD2d 918).

Liability for slip and fall on ice and/or snow must be considered in light of problems caused by winter conditions (Pappo v State of New York, 233 AD2d 379, 379-380). Claimant “must establish that the injury causing condition was dangerous and different in character from conditions ordinarily and generally brought about by winter weather in the given locality (citations omitted)” (Tobias v State of New York, Ct Cl, December 19, 2000 [Claim No. 96244], Patti, J., UID No. #2000-013-520). The failure to remove ALL snow and ice from a sidewalk is not necessarily negligence unless the hazard was somehow increased by the process of the snow and ice removal itself (id.). In addition, Defendant is entitled to a reasonable amount of time at the conclusion of a storm or other weather event to take corrective action (see Boyko v Limowski, 223 AD2d 962; Downes v Equitable Life Assur. Socy. of U. S., 209 AD2d 769).

Here, Claimant alleges that Defendant’s failure to inspect and remove snow and ice on the stairs at Hartwell Hall’s canopy entrance created a dangerous condition causing her to slip and fall severely injuring her right leg and ankle. Claimant’s expert, Kevin D. Williams, testified that six inches of snow had already accumulated prior to Claimant’s fall and no appreciable accumulation occurred that day, January 26, 2004, between 2:00 p.m., when it started snowing, and the time of the fall. In fact, the snow pack ranged from nine inches to seven inches the week before, despite daily snowfall and below freezing temperatures (Exhibit 12). No storm in progress existed on the day of the fall and, based on the climatic data for Rochester in the week prior, no weather-related emergency conditions existed either. Defendant maintains that Brockport’s Snow-Removal Program (“Program”) (Exhibit 10) applies to this situation, thus, Defendant is entitled to qualified immunity for its actions.

The Program’s introductory paragraph’s first sentence states, “During adverse winter weather conditions, it is often necessary to prioritize the assignment of personnel and equipment for snow removal” (emphasis added). The introduction further describes the Program as an elaboration of staff responsibilities, weather emergency guidelines, equipment availability and priorities for clean-up. The only notification procedure detailed in the Program is the one between the grounds supervisor and University Police should a weather-related emergency develop after 3:30 p.m. Monday through Friday. Any snow condition not considered an emergency as defined by the Program will wait to be addressed at the beginning of the next work day. The Program states that all staff are available for call-in, should the situation require it, and indicates the goal of the Program is to “simultaneously clear roads, steps, walks and parking lots within 24 hours after the snowfall ceases” (Exhibit 10, p. 2). The Program also details how clean-up will occur and where (Exhibit 10, pp. 2- 5). Based on the testimony and evidence before me, I find that no snow emergency existed at or around the time of Claimant’s fall, therefore, Brockport’s Program is not applicable to this situation. Accordingly, the qualified immunity status discussed in Weiss v Fote (7 NY2d 579) is not available to Defendant.

In January 2004, Defendant had an established 24 hour emergency telephone number so any student, staff person or faculty member could report a problem that needed attention. Mr. Lair’s phone log for January 2004 shows that the calls related not only to snow and ice issues, but also running toilets, stuck elevators, boiler problems and clogged sinks (Exhibit 9). A Zone Mechanic responded to the calls indicated on Exhibit 9. Mr. Hillman described these individuals as persons who could do a little of everything, such as plumbing, electrical and carpentry. Zone Mechanics worked during the regular 7:00 a.m. to 3:30 p.m. Grounds shift. Zone Mechanics were also on during the afternoons. A Zone Mechanic was typically assigned to one campus building or a group of specific buildings. Mr. Lair stated a Zone Mechanic covered approximately 250,000 square feet of campus property.

Further, it appears that the custodial staff is responsible for the stairs around Hartwell Hall during the “A” shift. No one has responsibility during the “B” shift, but during the “C” shift, Exhibit 11 indicates that “AZ” has responsibility. Although neither Exhibit 11 nor testimony elicited at trial clarified the definition of “AZ,” it appears that this refers to the Zone Mechanic. Ms. Menear explained that “A” shift commenced at 5:00 a.m. and concluded at 1:30 p.m. The custodial crew was responsible for clearing snow and ice at the beginning and end of each shift. If snow on the stairs and entranceways was heavier than the custodial crew’s shovels and ice choppers could handle, they were instructed to call Grounds for heavier equipment and ice melt or salt. After her crew left the building at the conclusion of the shift, the assigned “zone people” would remove any snow or ice, provided someone called the emergency number.

Claimant fell on the first day of classes following the holiday break. The week before classes started, the Grounds Department was fully staffed. Hartwell Hall’s housekeeping staff was inspecting the stairs at the canopy entranceway at the start and end of their regular shift, not only the day of the accident, but the preceding work week as well. The steps were snow covered. Mr. Gaylord stated they had at least two to three inches of snow on them but they were “passable.” Claimant testified they were “ramped” but that students were using them. Either way, I assume the Hartwell Hall housekeeping did their inspection. Thus, Defendant had actual notice that snow had accumulated on the stairs.

Two to three inches of snow on well-traveled steps constitutes a dangerous condition. Defendant had at least the week prior to the fall to remove most or all of the snow but failed to do so. I find that Defendant was negligent.

Despite Defendant’s negligence, Claimant was required to see that which is before her and which can be seen (Delveccio v State of New York, Ct Cl, January 12, 2006 [Claim No.108246], Minarik, J., UID No. 2005-031-535 citing Weigand v United Traction Co., 221 NY 39). Claimant testified she slipped on the first step, maintained her balance, then proceeded to the second step anyway. I find Claimant was also negligent and must share responsibility for her injury.

I fix the Defendant’s negligence at 60% and the Claimant’s negligence at 40%.

Any motions upon which I previously reserved, or which were previously undecided, are denied.

The Chief Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability. This claim will be scheduled for trial on the issue of damages as soon as practicable.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.


March 14, 2008
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims




[1].The parties stipulated to Mr. Williams’ qualification as an expert witness.