New York State Court of Claims

New York State Court of Claims

PATE v. STATE OF NEW YORK, #2008-039-084, Claim No. 112371


Claimant alleged that he sustained injuries due to defendant’s negligence when he slipped and fell on ice and snow in the North Yard of Greene County Correctional Facility. Following a trial, the Court finds that claimant failed to prove, by a preponderance of the credible evidence, his claim against defendant and the claim is dismissed. Claimant failed to prove that a dangerous condition existed and, alternatively, even if such condition existed, claimant failed to prove that defendant had notice of the condition that caused his fall.

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):

James H. Ferreira
Claimant’s attorney:
Law Offices of Uriel E. GribetzBy: Uriel E. Gribetz, of Counsel
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael T. KrenrichAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 4, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Kyle Pate seeks damages as a result of injuries he allegedly sustained on January 7, 2006 when he slipped and fell on ice and snow in the North Yard (hereinafter “yard”) of the Greene County Correctional Facility (hereinafter “facility”) located in Coxsackie, New York. The liability phase of a bifurcated trial was held on March 11, 2008. The proof offered by claimant consisted of live testimony from the claimant and three correction officers with the New York State Department of Correctional Services (hereinafter “DOCS”). Defendant proffered the live testimony of a nurse with DOCS. Exhibits admitted into evidence included, inter alia, black and white photographs, facility reports, diagrams of the facility, portions of claimant’s EBT testimony and meteorological reports.

Claimant testified that on January 7, 2006 he elected to take evening recreation in the yard. He apparently walked the perimeter of the yard, a number of times, on ground he described as blacktop. He stated that he had been walking near the backside of the yard, adjacent to the S Block area, which was separated from the yard by a fence, when his “foot went through the ice” and he hurt his ankle. He stated that the ground adjacent to the fence was grass, and that he could not tell if he was walking on blacktop or grass when he fell because there were areas of snow and ice. He acknowledged that there were icy areas that were slippery, and that he needed to walk carefully. He stated that some of the area where he was walking that evening had been cleared of snow and ice. He stated further that he had never seen the entire blacktop area cleared of snow and ice, but that he had seen maintenance crews clear snow and ice from the areas near the entrance and the correction officers’ shack. Claimant marked a diagram and two black and white photographs to identify the spot where he fell and injured his ankle. He recalled that the weather on the day of the accident, as well as the preceding days, was cold and clear. Snow that was on the ground in the area where he fell was snow that had fallen naturally, not snow that had been moved or plowed there. Claimant filed a grievance in March 2006 because he thought the area should be cleared.[1]

Claimant acknowledged on cross-examination that he had other recreational options besides walking in the yard, but that he had elected to walk outside despite the conditions. He had been walking for an hour prior to his fall and never complained about the conditions to corrections staff. Portions of claimant’s EBT testimony received into evidence reveal that he believed he was “probably in the grass” and “could have been on the grass” but that “[he] couldn’t really tell.”

Correction Officer Edwin Ruff testified that he had been with the facility for 21 years and was working on January 7, 2006. He stated that the yard was a recreational area comprised of basketball courts, handball courts, a weight shack and blacktop, and was used for recreation. He stated that during his time working at the facility he had seen maintenance crews clear ice and snow from the yard with snow blowers, shovels and plows. The crews were comprised of inmates supervised by correction officers or civilians employed by DOCS. Ruff did not observe claimant fall.

Sergeant Steven Doren testified that he was working the facility at the time of the accident and was responsible for several areas at the facility, including the yard. He stated that the maintenance supervisor was responsible for snow and ice removal in the yard, and that “on occasion” he had seen such removal occur. Doren testified that snow and ice was removed in an effort to make the area safe and accessible for the inmates using the yard. He was not, however, aware of any records kept by the maintenance crews regarding snow and ice removal. Doren described the yard as a “very large area” comprised of both paved and grassy areas, and a baseball diamond. He recalled that on January 7, 2006, “there was snow in the, most of the grassy areas, [and] the yard was pretty much cleared.” Doren was notified by Correction Officer Lackie that claimant had fallen and dispatched Ruff to respond to the scene of the accident. Doren also prepared a two-page memo to Lieutenant Shauger on January 7, 2006 regarding the incident.[2] The memo states that claimant’s “right foot had apparently broken through ice while he was walking in the north yard,” and that “C.O. Lackie examined the area and found that there was ice there and it appeared to be cracked and was consistent with someone having stepped through it.”

Lackie testified that he was working on January 7, 2006 and that he was assigned to the yard at the time of the incident. He stated that the yard, and in particular the area near S Block, has areas of blacktop and grass, and that he did not recall whether snow and ice was on the blacktop on January 7, 2006. Lackie testified that he has observed maintenance crews, supervised by correction officers and civilians employed by DOCS, remove snow and ice from the blacktop in the yard. Removal methods included the use of shovels, snow blowers and salt. He did not know whether maintenance crews kept any records regarding snow and ice removal.

On January 7, 2006, Lackie was notified by an inmate that claimant had fallen. He went to the scene of the fall and he observed claimant lying in the grass. Lackie acknowledged that he did not know whether claimant’s fall occurred on the grass and stated that the grassy area where claimant lay was very close to the blacktop. He observed ice in the area where claimant fell and that the ice appeared cracked, like someone had fallen through it. These same observations were noted in a memo from Lackie to Doren which was prepared on the day of the accident.

Lackie stated that he had worked in the yard for over 10 years and he had seen maintenance crews clear snow and ice from certain blacktop areas in the yard including areas near the front gate, weight shack, inmates’ telephones and inmates’ bathrooms. Lackie testified that generally maintenance crews did not clear the entire surface of the blacktop, but rather they cleared the main gate area, the path to the weight shack and the bathroom areas. He added that inmates can request to have certain areas cleared for activities such as basketball or handball. He recalled that at approximately 7:00 P.M. on January 7, 2006, 95 inmates were in the yard. He did not recall whether any complaints were made regarding the presence of snow or ice, or whether any requests were made to remove snow and ice. When he responded to the area where claimant fell, Lackie observed claimant lying on the ground approximately 10 feet from the S Block fence.

Lackie stated that the yard includes a blacktop area comprised of three handball courts, four basketball courts, a weight shack area, a telephone area, an inmates’ bathroom area, an officers’ shack, several picnic tables, and a softball field.[3] Lackie stated that the cracked ice he observed was “approximately10 feet” from the S Block fence and that the cracked ice was over a grassy area. He stated that it is not common practice after a snowfall to shovel, salt or plow the grass areas or the baseball fields, or to clear snow from the basketball courts. Lackie acknowledged that he did not see claimant fall. Nor did he recall whether, on January 7, 2006, snow had been cleared or removed from the yard or from the locations marked on exhibit G.
Defendant called Lois Vedder who was working as a nurse at the facility on January 7, 2006. Vedder stated that she treated claimant and prepared the “Facility Health Services” portion of an “Inmate Injury Report” regarding claimant’s injury (see Defendant’s Exhibit A). She also prepared a document called an “Unusual Incident Report”(see Defendant’s Exhibit B).
It is well settled that the State as a landowner must maintain its 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 (see Miller v State of New York, 62 NY2d 506, 513 [1984]; Preston v State of New York, 59 NY2d 997, 998 [1983]; Basso v Miller, 40 NY2d 233, 241 [1976]). “[W]hile the State is under a duty to take every reasonable precaution to protect those who are in its institutions, it is not an insurer against any injuries which might occur [citations omitted]” (Condon v State of New York, 193 AD2d 874 [1993]), and negligence cannot simply be presumed or inferred by the mere happening of an accident (see Melendez v State of New York, 283 AD2d 729 [2001], appeal dismissed 97 NY2d 649 [2001]; Mochen v State of New York, 57 AD2d 719 [1977]).

“To establish a prima facie case in an action to recover damages for personal injuries caused by a slip and fall, the plaintiff must prove that the defendant either created the condition which caused the accident, or that it had actual or constructive notice of the hazardous condition and a reasonable time within which to correct it” (Campanella v 1955 Corp., 300 AD2d 427 [2002]). A defendant’s creation of a dangerous condition constitutes actual notice (see Mercer v City of New York, 223 AD2d 688, at 690 [1996], affd 88 NY2d 955 [1996]; Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 [1984], affd 64 NY2d 670 [1984]). “ ‘To constitute constructive notice, [however,] a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it’ ” (Crawford v AMF Bowling Ctrs., Inc., 18 AD3d 798, 799 [2005], quoting Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

Where a plaintiff slips and falls on snow or ice, the plaintiff must show “that the defendant had actual notice of the dangerous condition, or should have had notice of it in the exercise of due care, and had a reasonably sufficient time after the cessation of precipitation, or onset of the temperature fluctuation which caused the hazardous condition, to take corrective action” (South v K-Mart Corp., 24 AD3d 748 [2005]). Ascertaining whether the State’s actions were appropriate or reasonable in such instances must be considered in light of the realities of the problems caused by winter weather (see Pappo v State of New York, 233AD2d 379, 379-380 [1996]; Goldman v State of New York, 158 AD2d 845 [1990]; see also, Gary v State of New York, UID #2007-0444-018, Claim No. 106140, Schaewe, J. [September 24, 2007]). A defendant “will not be held liable for injuries arising from a condition on [its] property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it” (Stanton v Town of Oyster Bay, 2 AD3d 835, 836 [2003] lv denied 3 NY3d 604 [2004]).

The Court has considered the credible evidence presented at trial and concludes that claimant has failed to establish, by a preponderance of the evidence, that defendant is liable for his injuries. There is no dispute that defendant owed claimant, a person in its custody, a duty of reasonable care with respect to claimant’s use of its property. There is also no dispute that on January 7, 2006, claimant fell on or through ice on defendant’s property. Claimant, however, failed to prove that a dangerous condition existed and, alternatively, even if such a condition existed, claimant failed to prove defendant had notice of the condition that caused his fall.

Claimant testified that on January 7, 2006, during a 6:00 P.M. recreation period, he was walking around the perimeter of the yard when his “foot went through ice” and he fell, injuring his right ankle. Claimant stated that there was snow and ice on the blacktop area of the yard that evening, and that the weather was clear and cold. He stated that other recreation options were available to him that night, but that he was allowed to walk on the blacktop area during the evening recreation period. Claimant walked the perimeter of the yard for approximately an hour before he fell.

It is unclear from claimant’s testimony, however, whether, at the time of his fall, he was walking on the edge of a paved area of the basketball courts or on a grass strip which was located adjacent to a fence that was used to separate the yard from the S Block area. Portions of claimant’s EBT testimony admitted into evidence suggest that he was in the grass area when he fell. Lackie testified that when he responded to the scene, he found claimant lying in a grass area. Additionally, photographs marked by claimant to show the location of his fall indicate that he fell either on the grass or on the edge of the pavement adjacent to the grass.

Testimony elicited from all three correction officers shows that, on occasion, each officer observed the clearing or removal of snow and ice from the blacktop area of the yard through the use of snow blowers, plows or shovels. However, the testimony also suggested that the general practice was to remove snow and ice from the paved areas that received use by inmates and officers such as the main gate, the weight shack, the telephones and the inmates’ bathrooms. Claimant acknowledged that he had never observed the entire blacktop area cleared of snow and ice, but that he had seen areas cleared near the entrance to the yard and the correction officers’ shack. Doren stated that on the evening of claimant’s accident, there was snow in the grass areas but that the yard “was pretty much cleared.” Moreover, inmates could request that certain areas be cleared, and claimant never made any complaints about the condition of the yard prior to his fall. Notably, the evidence showed that 95 inmates were in the yard that evening, and the correction officer assigned to the yard did not recall any complaints about its condition or any requests to clear ice and snow.

Given the realities of winter weather, defendant’s general snow removal practices in the yard and the snow removal that occurred on January 7, 2006, the Court finds that defendant did not breach its duty of reasonable care owed to claimant on the occasion of his fall. Claimant’s accident occurred away from areas ordinarily cleared of snow and ice, after numerous walks by claimant along the route. The evidence indicates that claimant likely fell on ice in the grassy strip between the S Block fence and the edge of the paved area. Further, even if the Court were to find that claimant fell on ice at or near the edge of the paved area, holding the defendant liable for failing to remove every square foot of snow or ice in an area as large as the yard is unreasonable (see Ferguson v State of New York, UID No. 2006-041-502, Claim No. 107272, Milano, J. [September 5, 2006]). Moreover, claimant was aware that some snow and ice was on the blacktop, having walked the perimeter a number of times, and acknowledged that he needed to “be careful when ... on the icy areas.” Under these circumstances, the yard was not “abnormally dangerous [nor did it] differ[] significantly from the condition of any outdoor area in winter” (Condon v State of New York, supra at 875).

Even assuming that a dangerous condition existed, claimant failed to prove that defendant had notice of the condition. As he repeatedly traversed the yard on the evening of January 7, 2006, claimant was aware that there was snow and ice and slippery spots, but never requested that such conditions be removed or cleared before his fall. Notably, even if claimant’s route around the perimeter could be considered a path, the failure to remove all snow and ice from a walkway is not negligence unless the hazard was increased by the process done to remove the snow and ice (see Rector v City of New York, 259 AD2d 319, 320 [1999]). Here, no such evidence was proffered and, in fact, claimant acknowledged that he fell where snow had fallen, not where snow had been moved or plowed. Additionally, the meteorological data offered by claimant to show that defendant was on notice is inconclusive on this point. At most, the data shows that three or four days prior to claimant’s fall, four to five inches of snow fell in two separate areas purportedly near the facility, and that three to four inches of snow was on the ground on the day of the incident. Absent any evidence as to where the measurements of snow were taken, the Court is constrained to give this exhibit little weight. In any event, even accepting that defendant was aware of the presence of snow and ice in the yard, a general awareness that icy conditions may exist is insufficient to establish constructive notice (see Richer v State, 31 AD3d 943, 944 [2006]). Accordingly, the Court finds that defendant had neither actual nor constructive notice of the condition.

Finally, the Court denies claimant’s request for an adverse inference charge based upon defendant’s alleged failure to produce maintenance records concerning snow and ice removal at the facility on or about January 7, 2006. “A party who seeks an adverse inference charge against an opponent who fails to produce a document must make a prima facie showing that the document in question actually exists and that it is under the party’s control [citations omitted]. The party requesting the charge must also show that the adverse party has no reasonable explanation for not producing the document (PJI 1:77)” (Scaglione v Victory Memorial Hospital, 205 AD2d 520 [1994] lv denied 85 NY2d 801).

Here, claimant avers that his request for discovery and inspection included a request for maintenance records regarding snow and ice removal for the yard for the period from January 7, 2005 through January 7, 2006. Records reflect that claimant made such a request in his combined discovery demand dated February 22, 2007. Defendant stated in its June 19, 2007 response that “[d]ocuments pertaining to the inmate maintenance crews are more than one year old and are no longer accessible” (Defendant’s Exhibit 18). Claimant contends that the notice of claim was filed within 90 days of the incident and described in sufficient detail the location and cause of the injury, thus effectively placing defendant on notice that such information or records would be relevant to claimant’s case and should have been kept. Claimant also argues that he did not learn of such maintenance records until depositions conducted in February 2007. Defendant responded that it has no duty to maintain or preserve records merely because a claim or notice of claim is filed in anticipation of possible discovery requests, and that such duty would be inherently unreasonable and burdensome. Defendant asserts further that the request was made more than one year after the incident and after its one-year retention policy for this type of record. Based on the circumstances herein, the Court finds that defendant’s excuse for not producing the records requested is reasonable.

Based on the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, his claim against defendant. Accordingly, the claim is hereby dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied, and all objections the Court had previously reserved on are hereby overruled.

The Clerk of the Court is directed to enter judgment accordingly.

August 4, 2008
Albany, New York

Judge of the Court of Claims

[1].The Court has considered and received into evidence claimant’s exhibit 16, which includes, among other things, an Inmate Grievance Complaint filed by claimant nearly two months after the accident wherein he requests that the yard be cleared of ice. The exhibit also reflects that the grievance was denied on the grounds that “every effort is made to keep the recreation yards clear of ice and snow.”
[2].Doren’s memo is one of three “To - From” memos that are dated January 7, 2006 and collectively marked as claimant’s exhibit 15.
[3]. Defendant’s exhibit G, received in evidence, is a diagram of the yard, including the S Block fence. The diagram includes numerical markings by Lackie showing the location of “1”- the yard’s entrance gate, “2”- a guard shack, “3”- a weight shack, “4”- the inmates’ bathrooms, “5”- the area where Lackie found claimant lying and “6”- the area of cracked ice. The Court has considered exhibit G only as to the locations of structures and areas, not as to whether snow or ice was removed from those areas on January 7, 2006. Defendant’s exhibit C, received in evidence, is a copy of the same diagram that claimant marked with an “x” to show the route he was walking and where he fell.