New York State Court of Claims

New York State Court of Claims

HARJES v. THE STATE OF NEW YORK, #2008-038-122, Claim No. 103942


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
By: THORN GERSHON TYMANN AND BONANNI, LLPArthur H. Thorn, Esq. and Matthew H. McNamara, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Frederick H. McGown, III, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 23, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks to recover damages for severe personal injuries she sustained on February 14, 2000 when the front end of the vehicle that she was driving westbound on Route 213 in Ulster County was struck by a van that had lost control in the eastbound lane on the wintry and slick roadway. The liability phase of the trial of this claim was conducted from October 22 through October 25, 2007 in Albany, New York before the Honorable Richard E. Sise.[1] Claimant presented the testimony of: (1) Jerome J. Thomas, a professional and civil engineer specializing in highway maintenance who was a former employee of the New York State Department of Transportation (DOT); and (2) Kevin C. Breen, an accident reconstruction expert. Excerpts from the examinations before trial (EBT) of Peter M. Teliska, the Ulster County Resident Engineer with the DOT on the date of the accident, and Conrad Hazell, a former DOT dump truck driver were read into the record. Defendant presented the testimony of: (a) New York State Trooper Dennis F. Hastings; (b) Peter M. Teliska; (c) Paul Parisio, the driver of the van that struck claimant’s vehicle; (d) Kevin Sweeney, a passenger in Parisio’s van; (e) New York State Police Sergeant Donald J. Baker; and (f) Conrad Hazell. Numerous photographic, documentary and other exhibits were received into evidence. At trial, counsel waived closing arguments, electing instead to submit post-trial memoranda for the Court’s consideration. Upon review of all of the evidence, the parties’ post-trial submissions and the applicable law, the Court concludes that defendant is not liable to claimant for the reasons that follow.[2]

The weather the morning of February 14, 2000 in Ulster County was a wintry mix of snow, sleet, rain and freezing rain. At approximately 8:45 a.m., claimant was driving her 1986 Ford Bronco westbound on Route 213, a two-lane State highway, in the Town of Esopus in Ulster County. As claimant approached a curve in Route 213, an oncoming van driven by Paul Parisio lost control on the wintry road surface, crossed over the solid double yellow center line and struck the left front side of claimant’s vehicle in the westbound lane. Claimant’s vehicle came to rest on the guardrail on the shoulder adjacent to the westbound lane, and Parisio’s vehicle came to rest in the middle of the road, straddling the double yellow center line, facing eastbound traffic.

The accident occurred on Route 213 approximately eight tenths of a mile east of its intersection with State Route 32. At that point, Route 213 had two lanes of travel, with a double yellow “no-passing” line in the center, and white fog lines at both shoulders. The posted speed limit was 45 miles per hour (MPH). Going eastbound, the direction in which the Parisio van was traveling, the road curved to the right at an 11-degree angle – described as a “fairly sharp” curve (T:44)[3] by claimant’s expert witness, Jerome J. Thomas – and had a slight downward grade. The Wallkill River ran parallel to the roadway on the north side of the road, which was bordered by a box beam guardrail. At the point where the Parisio van started skidding, a culvert carried water under the roadway surface from a rock embankment along the eastbound lane to the Wallkill River.

Claimant, who was rendered unconscious by the accident and had to be extricated from her vehicle with the “jaws of life” (T:358), has no knowledge or recollection of the facts and circumstances surrounding the accident.[4] Parisio and his passenger, Kevin Sweeney, testified about the weather and the roadway conditions that morning. Sweeney testified that just prior to the accident the weather conditions consisted of mixed rain and snow (T:451), and that as the van turned onto Route 213, the road surface was snowy and “a little sleety with slush on it leading up to the point where the accident was” (T:453). Parisio recalled that the weather was a “wet, drizzle” (T:488) and that the road surface was “[j]ust wet” (T:510), and the road condition did not visibly change as he approached the curve where the accident would occur. Parisio testified that he had no difficulty making the turn from Route 32 onto Route 213, and he had not had any difficulty controlling the van through the “few slight curves” on Route 213 that preceded the site of the accident.

As Parisio entered the curve where the accident occurred, he took his foot off the accelerator and turned his wheel to the right to follow the curve, but the van did not respond and it started sliding to the left across the double yellow center line and into the westbound lane. Parisio applied the brakes and attempted unsuccessfully to steer the van back into the eastbound lane. A 911 call reported the accident at 8:45 a.m. and State Troopers and local emergency services personnel responded to the scene.

Parisio and Sweeney, who each sustained minor injuries, exited the van at the scene of the accident. Sweeney characterized the accident scene as “a sheet of ice” that was “a half inch thick of compressed or compacted snow, sleet, a mixture of that made wet by the rain and ice” (T:465). Parisio described the road surface as a sheet of ice about a half an inch thick, but he did not describe it as compressed snow and sleet (T:510-511). They both testified that they witnessed a State Trooper having difficulty walking at the accident scene, slipping on ice, and that they observed a truck that was having difficulty with traction and sliding on the roadway. Depositions given by Parisio and Sweeney at the accident scene to the New York State Police both state that the van slid on ice (see Defendant’s Exhibits H and I). A deposition of Roberta Clements that was received in evidence at trial stated that she was present at the accident scene in her vehicle at approximately 8:45 a.m. on that date, that she saw the aftermath of the accident, that her “car slipped a little and [ ] came to a stop” (Defendant’s Exhibit J).

New York State Trooper Dennis F. Hastings was on Route 32 when he was dispatched to the accident at approximately 8:45 a.m., and he arrived at the scene about a minute later. He observed that the roadway at the accident scene was “wet and slushy” (T:360). Photographs of the accident scene taken by Trooper Donald J. Baker after his arrival at the accident scene at 10:38 a.m. to perform an accident reconstruction (see infra) were received in evidence (Claimant’s Exhibit 5). In addition, other photographs of the accident scene that were taken at some unspecified time were received in evidence (Claimant’s Exhibit 18).

Peter M. Teliska, who was the Ulster County Resident Engineer on the date of the accident, testified that the State’s guidelines for snow and ice control (Defendant’s Exhibit D) set forth a general plan as to how DOT personnel should perform snow and ice control. For the 1999-2000 winter season, the Ulster County Residency of DOT had a Snow and Ice Plan (Defendant’s Exhibit C) that set forth a more specific plan for snow and ice control in Ulster County. That plan included the designation of different routes or “beats” on State roads in Ulster County (T:387-88). The State Highway Maintenance Guidelines recommend that supervisors patrol areas likely to be affected during snow and ice “events” (Defendant’s Exhibit D, at § 5.2301). When questioned on cross-examination whether there was “a formal procedure in place for inspecting the work that was done by snowplow operators” in February 2000 (T:418), Teliska answered “formal, no.” Teliska was not questioned about whether defendant patrolled areas likely to be affected during snow and ice events, and he offered no testimony on that point.

Conrad Hazell was assigned to the beat that included the accident site on Route 213. On the morning of claimant’s accident, his shift began at midnight. He was driving a dump truck that was equipped with plowing equipment as well as salt and calcium chloride that was used to treat slippery roads. As recorded on the “Snow and Ice Control Operations Report” (hereinafter “Snow and Ice Report”) that Hazell completed as he was working that morning (Claimant’s Exhibits 4 and 16), he treated the length of Route 213 three times prior to claimant’s accident: (1) between 12:38 and 1:13 a.m.; (2) between 2:58 and 3:25 a.m.; and (3) between 5:20 and 6:00 a.m. Hazell’s Snow and Ice Report that Hazell filled out in pencil at the beginning of his shift indicated that the pavement conditions were “wet, slush, snow, ice” (see Claimant’s Exhibits 4 and 16). Each time he treated Route 213, he began and ended at its intersection with Route 32, and so he passed the accident site six times that morning prior to claimant’s accident. On his last round trip on Route 213 prior to the accident, Hazell salted the roadway, and he testified that Route 213 was “only wet” (T:648) at that time.

Hazell’s testimony and his Snow and Ice Report demonstrate that after he completed salting Route 213 at 6:00 a.m., he worked on the southbound side of Route 32 and then returned to the Ulster County residency to reload his truck with salt. From 7:15 a.m. until 8:47 a.m., Hazell worked on the north and southbound lanes of Route 32, “plowing back and forth” to remove slush that had accumulated on Route 32 as a result of the combination of salt and freezing rain (T:619). Sometime shortly after 8:47 a.m., he was stopped by a firefighter at the Route 32/Route 213 intersection and told that there had been an accident on Route 213. Hazell testified that when he approached the accident scene on Route 213 at approximately 9:15 a.m., half an hour after the accident, the road surface was so slick that he turned the truck around and backed up to the accident scene so that his truck would gain traction from the salt as he passed the accident.

Claimant’s expert Jerome Thomas examined the site of the accident on numerous occasions in 2004 and into 2005, and he reviewed the Snow and Ice Report, Hazell’s EBT testimony, DOT data and photographs taken by the State Police at the accident scene. Thomas testified that the culvert under Route 213 created a cold spot in the roadway in the wintertime as “super-cooled water” ran under and through the curtain of ice on the rock embankment, and into the culvert and under the road surface (T:49). According to Thomas, the super-cooled water would create a “refrigerator-coil” effect that would cause that portion of the road to freeze before other portions of the roadway. It was Thomas’s opinion that Parisio’s van started to skid at that spot. Thomas estimated that there was a lapse of approximately three hours and 25 minutes between the last time that salt was applied on the eastbound lane of Route 213 and the occurrence of claimant’s accident, and it was Thomas’s opinion that this extended gap in the application of salt before the accident allowed the salt to become diluted and have no effect on the ice that was formed at the Route 213 culvert location. Thomas testified that this finding is consistent with Hazell’s EBT testimony that the road conditions were just wet during his last run and that ice subsequently formed.

Trooper Donald J. Baker,[5] a specialist in accident reconstruction with the New York State Police, investigated the causes of claimant’s accident. When he arrived at the scene at 10:38 a.m. the day of the accident, Trooper Baker walked the scene and observed that the roadway at that point was covered by approximately an inch to an inch and a half of slush. Trooper Baker located two sets of tire marks in the slush that he determined were caused by the van, the first set of which were straight tire marks that started in the eastbound lane and angled across the double yellow line into the westbound lane. Trooper Baker described the tire marks as “squeegee marks” (T:537) that were caused when the van’s tires pushed the slush away without leaving any tire rubber on the road surface. According to Trooper Baker, the straight tire marks indicated that the front wheels of the van were locked, which was consistent
with Parisio’s testimony that he applied the brakes when his van did not turn when prompted and that his brakes locked up. Trooper Baker also measured the friction of the roadway by pulling a “drag sled” (T:553) on the shoulder of the roadway because the slush on the roadway was melting due to the rain and the rising temperatures, and Trooper Hastings told him that the conditions on the shoulder were consistent with the roadway conditions that existed when Hastings arrived at the accident scene. Trooper Baker gathered data and information from the accident scene and from claimant’s and Parisio’s vehicles after they had been towed from the scene. He entered that data into a computer program that assisted him in determining the speed of each of the vehicles, the angle of the collision and the causes of the accident. Trooper Baker determined that at the point of impact, Parisio’s van was traveling at between 21 to 25 MPH and claimant’s vehicle was traveling between 19 and 26 MPH. Trooper Baker concluded that “the primary cause of this collision appears to be unsafe speed on the part of [Parisio] combined with the slippery road conditions and the minimal tread depth of the front tires on [Parisio’s van]” (Defendant’s Exhibit P, at 5).

Kevin C. Breen, an accident reconstruction expert, testified on behalf of claimant.[6] He gave testimony addressing the cause of the accident, and whether Parisio’s speed and the excessively worn condition of the tread of Parisio’s tires were contributing factors to the accident. The witness also addressed the science of traction and friction. Breen offered no testimony relevant to the issue of whether defendant had notice of the allegedly icy condition on Route 213.
The State owes to the public a nondelegable duty to design, construct and maintain its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Freund v State of New York, 137 AD2d 908, 908 [3d Dept 1988], lv denied 72 NY2d 802 [1988]). However, the State is not an insurer for motorists who travel on State highways (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Rooney v State of New York, 111 AD2d 159, 160 [2nd Dept 1985]; Arcone v State of New York, UID # 2007-030-032, Claim No. 109509, Scuccimarra, J. [Aug. 6, 2007]; Bindelglass v State of New York, 2004-015-605, Claim No. 105455, Collins, J. [Jan. 19, 2005]). When, as here, an accident is alleged to have been caused by defendant’s negligent maintenance of an icy condition, “[t]he two relevant inquiries are whether the State created the condition or had notice of it for a sufficiently long period of time to have corrected it, and if this is established, whether the State’s maintenance practice was reasonable in responding to the condition which caused [the accident]” (Johnson v State of New York, 265 AD2d 652, 652 [3d Dept 1999] [emphasis added]; see also Hart v State of New York, 43 AD3d 524, 525 [3d Dept 2007] [“Icy road conditions and the occurrence of an accident do not establish defendant's liability, unless it is also shown that defendant failed to diligently remedy the dangerous conditions once it was provided with actual or constructive notice”] [emphasis added]). At trial, it is claimant’s burden to prove notice by a preponderance of the evidence (see Parkhurst v State of New York, UID #2003-019-012, Claim No. 104251, Lebous, J. [Dec. 10, 2003]). Although the parties in this case did not focus their attention – at trial or in their post-trial memoranda – on the issue of whether the State created the icy condition or had notice thereof, it is a threshold element of any theory of negligent highway maintenance against the State that the Court may not ignore.[7]

A contention that the State created a dangerous condition must be supported by proof that the hazard was “created by [defendant’s] own affirmative act” (Mercer v City of New York, 223 AD2d 688, 689 [2d Dept 1996], affd 88 NY2d 955 [1996]; see Muszynski v City of Buffalo, 33 AD2d 648 [4th Dept 1969], affd 29 NY2d 810 [1971] [dangerous condition in sidewalk was created by defendant’s placement, refilling, and spillage of barrel of rock salt]; Hepburn v Croce, 295 AD2d 475 [2d Dept 2002] [affirmative act of oversanding roadway, as compared to passive act of failing to clear sand, constituted creation of the hazard]). Here, the proof at trial and claimant’s arguments are all addressed to omissions or failures to act, and not any affirmative conduct on the part of the State.[8] Therefore, there can be no finding that defendant created the icy condition on Route 213. Nor was there any proof that defendant had actual notice of the icy condition that allegedly caused the Parisio van to lose control. Thus, in this case, it must be shown that defendant had constructive notice of the icy condition that allegedly existed on Route 213 on the morning of claimant’s accident.

Claimant must demonstrate that defendant had notice of the particular icy condition that caused the accident (see Hart v State of New York, 43 AD3d 524, 525 [3d Dept 2007]; Slaughter v State of New York, 238 AD2d 770, 771-772 [3d Dept 1997]; Tromblee v State of New York, 52 AD2d 666 [3d Dept 1976]). Such notice “is not established through defendant’s general awareness that icy conditions may exist” (Hart v State of New York, supra at 525; see Richer v State of New York, 31 AD3d 943, 944 [3d Dept 2006]). Moreover, constructive notice requires a showing that the icy condition existed “for a sufficient length of time prior to the accident to permit a defendant’s employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

Upon thorough review of the totality of the evidence presented at trial, the Court finds that there is not a preponderance of the evidence demonstrating that the State had constructive notice of the icy condition on the morning of February 14, 2000.

The Court can infer from the evidence that the ice patch that allegedly caused Parisio to lose control of his van formed sometime after Hazell’s pass through the accident site on his third round trip, which he finished at 6:00 a.m., a time at which, he testified, Route 213 was “only wet” (T:648). The evidence, however, does not support a finding that the ice existed for a sufficient period of time to have allowed defendant to discover and correct the dangerous condition. It is manifest that defendant had notice of the winter storm, but such notice is not enough to establish constructive notice of a particular hazardous condition (see Hart, supra). No witness testified about the condition of the roadway after 6:00 a.m. and before the happening of the accident (compare Slaughter, supra). Claimant’s expert, Thomas, opined that the gap in the salt application by Hazell caused the road to become icy, but his testimony did not address the critical question of when the road became icy.

There was testimony on defendant’s case that at the time of the accident, the road was covered with compressed or compacted snow and sleet that formed a sheet of ice half an inch thick, which would permit the Court to infer that the ice had existed for some period of time. However, this testimony was contradicted by the testimony of Trooper Hastings – who approached the accident scene from the same direction that the Parisio van traveled – that the roadway at the accident scene was “wet and slushy” (T:360), and by Trooper Baker’s testimony and photographs of the accident scene that clearly show that the van’s tires created squeegee marks in slush. Therefore, the Court is not persuaded by a preponderance of the evidence that the roadway was covered by a sheet of ice half an inch thick. And while the roadway may have subsequently frozen over, as evidenced by Hazell’s testimony that he had to back his truck through the scene a half hour after the accident, that evidence is not probative of the condition of the roadway prior to the accident.

To the extent that claimant contends that defendant was negligent because it did not comply with the DOT Highway Maintenance Manual Guidelines in its snow removal practices on February 14, 2000, such negligence does not eliminate the requirement that claimant demonstrate that defendant had notice of the dangerous condition that caused claimant’s accident (see Rooney v State of New York, supra; Mickle v New York State Thruway Auth., 182 Misc 2d 967, 973 [Ct Cl 1999]).

The State may be held liable under an alternate theory of liability “[w]here the State has actual or constructive notice of a recurrent hazardous [icy] condition in a specific area [and it fails] to correct or warn of the condition” (Freund, supra at 909; see Farrell v State of New York, 46 AD2d 697, 698 [3d Dept 1974]; Rooney v State of New York, supra; Wydysh v State of New York, #2003-009-121, Claim No. 91169, Midey, J. [Sept. 29, 2003]). However, the evidence does not demonstrate that defendant had notice of a recurrent icy condition at the location of claimant’s accident. Claimant’s expert Thomas opined that the culvert on Route 213 created a cold spot in the roadway that would cause that portion of the road to freeze before other portions of the roadway, and that Parisio’s van started to skid at that spot. However, there was no evidence adduced at trial that defendant had knowledge of the alleged refrigerant effect of the culvert, nor was there any evidence of icing or accidents at that location on any prior occasion (compare Rooney, supra; Wydysh, supra; Dubacs v State of New York, 140 AD2d 968, 969 [4th Dept 1988]). Accordingly, a preponderance of the evidence does not demonstrate that defendant had notice of a recurrent icy condition at the Route 213 culvert.

Finally, and assuming arguendo that notice is not pertinent to claimant’s allegation that defendant violated its own Highway Maintenance Plan in failing to patrol on the morning in question, claimant’s argument fails for two reasons. First, a party’s failure to follow its own rules may be some evidence of negligence, but such conduct is not negligence per se (see Haber v Cross County Hosp., 37 NY2d 888, 889 [1975]; Price v Hampson, 142 AD2d 974, 975 [4th Dept 1988]; see also Sherman v Robinson, 80 NY2d 483, 489, n. 3 [1992]; cf. Black v City of Schenectady, 21 AD3d 661, 663 [3d Dept 2005] ). Moreover, Hazell’s testimony that he did not see any supervisor patrolling as he worked his beat that morning – the only evidence adduced on that point – does not preponderate in favor of a finding that supervisors were not, in fact, patrolling the Ulster County residency that morning. Furthermore, because there was no proof that a patrol would have or should have discovered the icy condition on Route 213, claimant has not demonstrated that any negligence in failing to patrol that morning was a proximate cause of her accident (Price v Hampson, supra).

In sum, claimant has sought to prove that the accident on February 14, 2000 was proximately caused by a patch of ice on Route 213 that caused the Parisio van to slide into her lane of travel. However, the proof at trial does not establish that defendant failed to remedy a known recurrent icy condition at the site of claimant’s accident, or that defendant had actual or constructive notice of the icy patch. As claimant’s allegations of negligence will not lead to liability absent proof preponderating in favor of a finding that defendant had such notice, the claim for damages must be denied.
It is the conclusion of this Court that defendant is not liable to claimant for her injuries, and the claim must be dismissed. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim. Any motions not previously ruled upon are hereby DENIED.

Let judgment be entered accordingly.

December 23, 2008
Albany, New York

Judge of the Court of Claims

[1].The claim was reassigned to this Court after the trial was concluded and the parties’ memoranda submitted, but before decision was rendered. The parties agreed to have this Court render a decision based upon the record of the trial, including the exhibits that were received into evidence.
[2].Defendant attached to its post-trial memorandum, received January 31, 2008, an appendix containing five documents: a June 17, 2002 Decision and Order of Hon. Vincent G. Bradley, J.S.C., in Harjes v Parisio, et al., Index No. 00-1503, RJI #55-00-01550, filed June 20, 2002, the complaint filed in that action, and several documents submitted on a motion and cross-motion for summary judgment. In a letter reply brief dated March 31, 2008, claimant objects to defendant’s submission of all of those documents on the ground that none of them were part of the trial record, and should not be considered by the Court. The Court agrees that the submission of these documents at this time and in this manner is not proper, and thus, they have not been considered. In any event, these documents were submitted to support defendant’s contention that the instant claim is barred by claimant’s “election of remedies,” and the Court’s conclusion that the claim must be dismissed on the merits renders this argument moot, and the improper submission superfluous.
[3].All references to the trial transcript are designated by “T.”

[4].To the extent claimant is requesting that the Court consider application of the Noseworthy doctrine (Claimant’s Post-Trial Memorandum, at p. 25, n. 2), she is not so entitled. The Noseworthy doctrine (see Noseworthy v City of New York, 298 NY 76 [1948]) lessens the burden of proof in cases in which an amnesiac plaintiff cannot recall the events that led to his or her injury (see Schechter v Klanfer, 28 NY2d 228 [1971]). However, the doctrine may not be invoked “[i]n the absence of expert evidence establishing a loss of memory and its causal relationship to defendant’s fault” (Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 335 [1986]; see Boyd v Hall, Ltd., 307 AD2d 624, 625 [3d Dept 2003]; Menekou v Crean, 222 AD2d 418, 419 [2d Dept 1995]). Here, claimant did not offer such expert evidence, and thus the Noseworthy doctrine may not be applied.
[5].Trooper Baker has since been promoted to Sergeant.
[6]. In preparing to offer an opinion, Breen reviewed the accident report, Trooper Baker’s accident reconstruction report and notes, accident scene photographs, surveys, as-built drawings and aerial photographs of the accident scene, weather data and photographs of the scene at various stages and Hazell’s EBT. In addition, Breen had measurements taken of the roadway at the accident site. Breen also reviewed claimant’s medical records because speed of an automobile involved in an accident correlates with injuries sustained therein.

[7]. Defendant opposes the merits of the claim by invocation of two legal theories. First, counsel argues that in the area of highway design, the State enjoys qualified immunity, which can only be overcome by proof that the plan was designed without adequate study or lacked a reasonable basis (see Friedman v State of New York, 67 NY2d 271 [1986]). As claimant withdrew her highway design claim (T:676), the Court need not address the merits of this defense.
Next, defendant argues that DOT had no duty to plow or salt until a reasonable time after the cessation of the winter storm the morning of February 14, 2000. Assuming that defendant had notice of the icy condition on Route 213, this invocation of the “storm in progress” doctrine is plainly without merit. The State has a duty to treat wintry road surfaces during ongoing storms and will be held liable if it fails to diligently remedy dangerous road conditions (see Freund, supra; Hart, supra; Slaughter, 238 AD2d 770 [3d Dept 1997]; Tromblee, 52 AD2d 666 [3d Dept 1976]). The cases cited by defendant in support of its argument are inapposite as they address the duty of the State as a landowner to clear snow and ice, and not the State’s duty to remove snow and ice from State highways.
[8]. In her brief, claimant argues several theories of negligence: (1) that the State failed to salt the accident location for an unreasonable period of time; (2) that it deviated from its snow removal plan; (3) that it failed to comply with the DOT Highway Maintenance Guidelines; and (4) that defendant failed to patrol (see Claimant’s Post-Trial Brief, p. 21). Each of these theories of negligence arises from an alleged omission by defendant (as opposed to an affirmative act that created the hazard). There cannot be a finding of liability on any of these theories without proof of notice – actual or constructive – of the icy condition.