New York State Court of Claims

New York State Court of Claims

HERBERT v. STATE OF NEW YORK, #2008-039-100, Claim No. 110362


Following the liability phase of a bifurcated trial, the Court finds that claimant failed to prove, by a preponderance of the evidence, his claim for negligence when he allegedly slipped and fell on ice and snow in the recreation yard at the Great Meadow Correctional Facility. More specifically, claimant failed to prove, through the offer of meteorological data and his own testimony, that defendant had actual notice of a dangerous condition either through its creation or otherwise, or that defendant had constructive notice of such condition. Moreover, the Court credited the testimony of the maintenance supervisor regarding the procedures for snow removal, and determined that claimant was plainly aware of the presence of snow and ice on the path of the recreation yard.

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:
Tracie A. Sundack & Associates, LLCBy: Jeffrey Pollack, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael W. FriedmanAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 28, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Thomas Herbert seeks damages as a result of injuries he allegedly sustained on February 17, 2004 when he slipped and fell on ice and snow in the recreation yard (hereinafter “yard”) at the Great Meadow Correctional Facility (hereinafter “facility”) located in Comstock, New York. The liability phase of a bifurcated trial was held on April 22, 2008. The proof offered by claimant consisted of live testimony from the claimant and a retired correction officer from the New York State Department of Correctional Services (hereinafter “DOCS”). Defendant proffered the live testimony of the maintenance supervisor at the facility and the chief of the facility’s wastewater treatment plant. Exhibits admitted into evidence included an inmate injury report, an inmate grievance, a response to the inmate grievance, a copy of a color photograph of the facility, meteorological data and a copy of the facility’s wastewater discharge permit.

Claimant testified that he is presently an inmate at Southport Correctional Facility serving a prison sentence arising from a robbery conviction. On the day of his accident, February 17, 2004, he was incarcerated at the Great Meadow Correctional Facility, and had been at the facility since June 2003. His accident occurred between 12:00 P.M. and 1:00 P.M. in the “big yard”, which was an inmate recreation yard he described as a “big parking lot” and a “wide open area”.

Lieutenant Dennis Whalen, the Yard Sergeant at the time of claimant’s fall, stated that he began working at the facility in 1982. After working at another correctional facility, he returned to Great Meadow in 1998. His duties included supervision of the big yard which he described as generally square, 200 yards wide and 300 yards long, and consisting of approximately 90% asphalt and 10% concrete. It was comprised of a baseball diamond, handball and basketball courts, a soccer area, bleachers, tables, an area for pull-ups, dips and lifting weights, and a telephone area. Whalen stated that in good weather, 400 to 500 inmates would use the big yard during recreational time; in bad weather, 40 to 50 inmates would be in the yard. The yard was open every day, and it was the decision of either the yard sergeant or the watch commander to close the yard. He recalled only closing the yard when there was lightning. Once an inmate enters the yard, he generally remains in the yard until the end of the session.

Claimant stated that he often used the recreation yard in the winter, and would spend from 1 ½ hours to 2 hours in the yard, walking for exercise in the circle, using the phone, working out or playing cards. Bleachers and tables were also used by inmates during the winter. Defendant’s Exhibit C, a color copy of a photograph of the facility, depicts, among other things, the “big yard”, the path taken by the facility truck when plowing snow, the point where the inmates exit the mess hall into the big yard, and the phone area, containing approximately 20 phones.

Testimony regarding the weather on the day of claimant’s accident indicates that the weather was cold but that it was not snowing. Defendant called Lee Braggs, the operator of the facility’s wastewater treatment plant, who testified that he maintains precipitation records as part of the facility’s permit and regulatory requirements. Braggs stated that in order to record precipitation amounts at the facility, he uses a rain gage, which is located in an open area at the facility and collects precipitation, such as rain, snow or sleet. The snow and sleet is warmed at room temperature to obtain a daily amount of liquid. The precipitation amount is then recorded on the permit kept by the facility to track wastewater discharges. This permit, which was admitted into evidence as Defendant’s Exhibit D, indicates that no measurable precipitation fell on February 17, 2004 or in the preceding nine days. Claimant’s Exhibit 9 from the Northeast Regional Climate Center, which was admitted into evidence, shows snowfalls of 6.0 inches on February 4, 0.5 inches on February 6 and 3.0 inches on February 7, but shows no measurable amounts of snowfall or precipitation in the area on that day or in the previous nine days. Temperatures fluctuated above and below freezing in the ten days prior to his fall. Claimant could not recall whether it had snowed in the days prior to his fall.

In describing his accident, claimant testified that he slipped on ice and broke his leg after using the phone in the yard. He testified that he encountered snow and ice on the path from the mess hall to the phone area, and that he did not believe the path was shoveled that day. He stated that there was no path to the phones on the day he fell and that he had to walk through snow that was approximately knee-deep in order to reach the phones. He later stated that he could not recall the depth of the snow. His testimony was at times unclear as to where he fell, but it appears that he fell after he finished using the phone. He stated that he was walking in an area known as the “circle”, which was a path created from a truck using a plow, when he “went flying” and his legs came out from under him. He later stated that he was in the circle path when he fell and had been walking for fifteen to twenty minutes before he fell. He testified repeatedly that at the time of the accident there was snow and ice in the big yard, that “everyone was falling all over the yard”, that the snow in the circle was “slippery” and that “everybody was slipping and sliding” in the fifteen minutes prior to his fall. He did not return to the phone area because he said there was a foot of snow in the area near the phones on the day of the accident. He acknowledged that he was not directed to walk around the circle, and that he elected to walk in that direction, even though people were slipping and sliding.

Claimant testified further that boots he received from DOCS and was wearing the day he fell were “terrible” and had no traction. He stated that he had foot problems and had communicated with DOCS about his need for better boots prior to his accident. He stated that he received new boots after the accident. He also stated that he filed an inmate grievance complaint with the Inmate Grievance Review Committee (“IGRC”) on or about February 17, 2004 describing the condition of the big yard as “dangerous” and seeking better boots, as well as salt and shovels for the yard. He received a response from the IGRC in early March 2004 stating that “[g]rievance granted to the extent that recreation shack should be provided with a supply of salt in order to sufficiently salt ice spots, between rec periods. Yard gangs will continue to conduct shoveling of snow.”

As for snow removal practices at the facility, claimant stated that snow in the yard was plowed in “a circle” so that inmates could walk around the yard. He estimated that the path was approximately two to three people wide and that certain areas could not be plowed. While he stated that the walkway to the phones was never plowed or shoveled, and that he never observed the circle plowed or salt or sand applied, he acknowledged the existence of the “yard gang”, a group of inmates that shovel certain areas at the facility.

Whalen stated that during inclement weather, such as snow, he would inspect the yard prior to its use by inmates and call the maintenance supervisor when snow needed to be cleared, and if salt or sand should be applied. His inspection consisted of entering the yard and walking to the inmate bathroom area, the phone area and then to the circle around the yard. After a snowfall, maintenance would plow the big yard by truck in a circle pattern, approximately two vehicles wide; ice on the circle was also salted and sanded by truck. The pathways to the inmates bathroom and the phones were shoveled about two shovels wide. The snow was piled in snowbanks. Pathways and smaller walkways that trucks could not reach were salted and sanded by inmates using wheelbarrows. The truck plowing was generally done before inmates used the yard, although he acknowledged it was possible for sand or salt to be applied after inmates used the yard. The yard sergeant would call the maintenance supervisor if plowing, salting or sanding was needed. He stated that he had never seen snow “up to mid calf” in the area from the mess hall to the phone area.

John Ballard, the maintenance supervisor at Great Meadows since 1999, whose job duties include, among other things, snowplowing, plumbing, electric work and painting, oversees twelve employees. He testified that after a snowstorm the trucks plow “a figure eight” in the big yard, as close to the level of the blacktop as possible. The plowing also occurs near the telephones so inmates can access the phones and by the tables which inmates use in the winter. Pathways from the mess hall to the big yard and to the phones are cleared by his staff and inmate gangs with snow blowers and with shovels. Salting and sanding on the pathways occurs by hand by the inmates, and on the figure eight by trucks driven by maintenance staff. The snow clearing procedure for the big yard involves the yard sergeant phoning maintenance to request salting, sanding, shoveling or plowing. He stated that the practice would be to respond to requests as quickly as possible and that these practices were followed in the winter of 2004. During cross-examination, Ballard testified that his job was “to take care of inmates,” and that “when I’m asked to do something” regarding an inmate “we do it immediately”. He stated further that before he or his staff leave the yard after clearing snow “I make sure that there is salt and sand on that yard.” Resalting also occurs if there is melting and freezing.
It is well settled that “[a]s a landowner, the State ‘ “must act as a reasonable [person] in maintaining [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” ’ ” (Miller v State of New York, 62 NY2d 506, 513 [1984], quoting Preston v State of New York, 59 NY2d 997, 998 [1983]; see also 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], lv dismissed 97 NY2d 649 [2001]; see also 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, 690 [1996], affd 88 NY2d 955 [1996]; see also 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]).

Notably, 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, 233 AD2d 379, 379-380 [1996]; see also Goldman v State of New York, 158 AD2d 845 [1990]; Gary v State of New York, UID #2007-044-018, Claim No. 106140, Schaewe, J. [September 24, 2007]). [L]andowners “will not be held liable for injuries arising from a condition on [the] 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]).

Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor, the Court finds that claimant failed to prove by a preponderance of the credible evidence that defendant had actual notice of a dangerous condition either through its creation or otherwise, or that defendant had constructive notice of such condition.

The Court is not persuaded based on the meteorological data admitted into evidence that a dangerous condition existed at the time of claimant’s fall. The data shows that no measurable snowfall or precipitation was recorded on the day of, or in the nine days preceding, claimant’s accident. Although the weather records show that 9.5 inches of snow fell in the area between February 4 and February 7, 2004, and that this period of snowfall was followed by ten days of temperatures that fluctuated above and below freezing, there is no corroborating evidence suggesting that the temperature changes created a dangerous condition in the big yard. Claimant could not recall the conditions of the big yard in the days preceding his accident. Moreover, while claimant’s inmate grievance complaint, dated February 17, 2004, states that “[t]he ice in the Big Yard is very dangerous” and “[t]here are ice patches all over the yard,” the Court finds that the statements are largely self- serving and unconvincing in the absence of any other testimony as to the condition of the yard on that date. Although the IGRC response states, in part, that the grievance is granted “to the extent that recreation shack should be provided with a supply of salt in order to sufficiently salt ice spots, between rec periods”, the response is not probative of whether a dangerous condition existed that caused claimant to fall.

The Court credited the testimony of John Ballard, the maintenance supervisor at the facility. His testimony, corroborated by Whalen’s testimony, reveals that procedures for snow removal in the big yard were in place and implemented when snow had fallen or when ice needed to be sanded or salted. Trucks were used to plow and sand a circle path for walking. Pathways were shoveled or cleared with snow blowers, and sand or salt was also applied. Testimony further indicated that when there was inclement weather, inspections of the yard were performed prior to use by inmates, and that snow or ice problems were addressed when needed and as soon as possible.

Conversely, the Court finds that claimant’s testimony regarding the condition of the yard on the date of his accident is not credible. Claimant could not recall how deep the snow was on the circle path where he fell, or the condition of the yard on the days preceding his accident. His statements that “they don’t make a path for the phones”, that snow on the path to the phones that day was approximately knee-deep or at mid-calf, that the snow at the phones was a foot high, or that he had never seen the yard plowed, sanded or salted after a snowfall are either uncorroborated or at odds with testimony that was presented regarding the facility’s snow removal procedures and meteorological data that was admitted into evidence concerning the weather conditions prior to and at the time of claimant’s fall. His repeated comments that other inmates were “falling” and “slipping and sliding” all over the yard on February 17, 2004 are also incongruous with testimony from Whalen and Ballard regarding the snow and ice removal practices implemented at the facility after a snowfall in the big yard. In addition, the absence of any other testimony to support claimant’s assertions regarding the condition of the yard, despite the fact that claimant identified four inmates who were purportedly with him when he fell, diminishes the impact of claimant’s testimony. Even accepting that defendant was aware of the presence of snow and ice in the circle, a general awareness that icy conditions may exist is insufficient to establish constructive notice (see Richer v State, 31 AD3d 943, 944 [2006]). Under these circumstances, the Court finds that defendant had neither actual nor constructive notice of the alleged condition.

Furthermore, as noted earlier, landowners are not obligated to warn against conditions on the land that could be readily observed by the use of one’s senses, nor will they be held liable for injuries arising from a condition on the property that is incidental to the nature of the property and could be reasonably anticipated by those using it (Stanton v Town of Oyster Bay supra at 836). Where the condition is open and obvious, “the condition is a warning in itself” (Tarricone v State of New York, 175 AD2d 308, 309 [3d Dept 1991], lv denied 78 NY2d 862 [1991]; see Herman v State of New York, 94 AD2d 161 [2d Dept 1983], affd 63 NY2d 822 [1984]). Additionally, in cases involving winter weather, holding the defendant liable for failing to remove every square foot of snow or ice in an area as large as the recreation yard is unreasonable (see Ferguson v State of New York, UID No. 2006-041-502, Claim No. 107272, Milano, J. [September 5, 2006]) absent a showing that the removal made the area more hazardous. (See Joseph v Pitkin Carpet, Inc., 44 AD3d 462 [2007]; Rector v City of New York, 259 AD2d 319 [1999]; Reidy v EZE Equip. Co., 234 AD2d 593 [1996]; Richer v State of New York, 18 Misc 3d 1111(A) [2005]).

Thus, even accepting claimant’s comments about the condition of the yard as true, claimant, by his own testimony, was plainly aware that snow and ice were on the circle path and that people were, in his own words, “slipping and sliding” and “falling all over the yard.” Specifically, claimant stated that he elected to walk in the circle for fifteen to twenty minutes before falling despite having observed everybody around him apparently falling and slipping. He also stated that he was never directed by a facility employee to walk in the circle. There is also testimony that claimant had alternatives to walking on the path during his recreation period. During cross-examination, claimant stated that on most days in the winter, he went out in the big yard and used the phone, walked around, played cards, worked out or “hung out” with other inmates. There was also testimony from other witnesses that during recreation time in the winter inmates could and did avail themselves of tables, chairs, bleachers, the free weight area and the pull up/dip bar area. Finally, it bears noting that no proof was set forth demonstrating that the defendant’s actions in clearing snow or ice created or exacerbated any condition which may have led to claimant’s fall.

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.

October 28, 2008
Albany, New York

Judge of the Court of Claims