New York State Court of Claims

New York State Court of Claims

WINTER v. STATE OF NEW YORK, #2008-040-011, Claim No. 109250


Bifurcated Trial – Claimant injured when fell on deck of Lodge at Belleayre Mountain Ski Center. Court finds Claimant failed to establish State was negligent.

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:
Lite & RussellBy: John M. Porchia, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Michele M. Walls, Esq., AAG
Third-party defendant’s attorney:

Signature date:
February 28, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, Wayne L. Winter, has failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries Mr. Winter sustained on March 20, 2004 in a slip and fall accident on the deck of the Discovery Lodge (Lodge), located at the Belleayre Mountain Ski Center in Highmount, New York (Belleayre). Belleayre is owned and operated by the State of New York. A bifurcated trial, addressing liability issues only, was held on December 11, 2007 at the Court of Claims in Albany. Claimant called two witnesses: the Claimant himself; and Brian T. Moraghan, Claimant’s expert engineer, who was called as an opinion witness. Claimant also offered a transcript of the testimony of Victor J. “Butch” Kittle, Belleayre’s Building Maintenance Supervisor, at his examination before trial on March 17, 2006. Defendant called Mr. Kittle as its only witness and also offered portions of Claimant’s deposition testimony of March 17, 2006.

All of the exhibits in evidence were admitted pursuant to stipulation of the parties. Exhibits 1 through 7, and Exhibit 9, inclusive, are photographs of the Lodge’s deck that were taken on March, 27, 2004 (one week after Claimant’s accident). Mr. Winter testified that he is the person who appears in some of the photographs. Exhibits B through R, inclusive, are photographs of the Lodge that were taken in June, 2004. Exhibits S through W, inclusive, are photographs of the Lodge that were taken in December, 2007. Exhibits S through W were not admitted for the purpose of showing conditions as they existed on the date of the accident but, rather, in order to provide background and orientation with respect to the place where the accident occurred.
Mr. Winter was the only witness to testify who was present at the accident. On March 20, 2004, he brought his three children and one of their friends to join a school outing at Belleayre. The children went skiing, but Mr. Winter stopped to get a coffee at the Lodge. He then took his coffee and walked outside through a set of sliding double doors (see Exhibits T and V) to see what the children were doing. Mr. Winter used Exhibit U to illustrate his route. He came out the Lodge doors (a portion of which is visible at the extreme left of the photograph) and walked along in front of the deck. Mr. Winter thought he saw the children to his left on a hill that goes down to a ski lift. He proceeded past the deck as far as a white obstruction (visible at the extreme right of Exhibit U), just before a stockade fence barrier. The children had already passed, however, and he was unable to hail them.

Claimant testified that his accident occurred after his failed attempt to attract the attention of the children. “[W]ith the coffee in my hand, [I] turned around, came back a little bit, stepped up onto the deck, [my right] foot twisted, [I] lunged forward, hit the table and got hurt.”[1] Mr. Winter later added that his foot twisted and rolled onto its right side as he was in the process of bringing his left foot up onto the deck. “As it twisted, I lost balance.” He tried, but failed, to regain his footing. “It was almost like a torpedo, I just – at that point I was heading forward – so [it] was just basically a lunge and right into the edge of the picnic table.” He estimated that he lunged forward “between five to eight feet” from the edge of the deck before colliding, head first, into the table.

Mr. Winter testified that he was not on the ground a very long time. Rather, he “just got right up” because he was in pain. Someone called for assistance. A medic arrived after about five minutes. Mr. Winter was evaluated and then escorted to a first aid station located inside the Lodge. Claimant testified that he remained in the Lodge area for the remainder of the day and had an opportunity to observe the area where his accident occurred. At his deposition, however, when asked if he inspected the area again after his fall, he said “I didn’t know to” (Ex. X, p. 36, line 3).

Claimant testified that his accident occurred in the “general area” of the deck planks that are visible toward the center of the photograph that is Exhibit 5, to the left (from the viewer’s perspective) of his leg and foot that also are visible in the photograph. He could not be more precise, however, or identify which board(s) he stepped onto. “Exactly what plank, I couldn’t depict to you. All I can tell you is that when I went up on the plank my foot just twisted to the right side.” He agreed, though, that “it would have to be” one of the several planks in that area. Claimant further agreed that his accident occurred at an area at the edge of the deck that shows some deterioration as compared to the surrounding boards (located at about 3 o’clock from the top of the umbrella stand sticking up out of the picnic table visible in Exhibit 9). At his deposition, however, when Mr. Winter was asked to review several photographs and point out where he lost his footing, he said “[t]hat’s tough, because when I came up [onto the deck], I wasn’t concentrating on what exact spot it would be ... I didn’t [see where I placed my foot]. I just stepped up on the deck” (Ex. X, p. 57, lines 3-13; see Exs. 2, 4-7)[2]. He likewise did not think that the placement of his foot in one photograph near the edge of some deteriorated planks was “particularly significant” (Ex. X, p. 15, line 20-p. 16, line 3; see Ex.1)[3].

On cross-examination, Mr. Winter testified that he was wearing street shoes at the time of his accident like the ones visible on his foot in Exhibit 5 (at his examination before trial, Claimant said they were either the very same shoes or another identical pair that he owns [Ex. X, p.15, lines 12-16]). He agreed that he was not wearing ski equipment, or ski boots. He further agreed that his course took him off the paved path to an area where conditions were “slushy.” On direct examination, Mr. Winter testified that the snow cover “was pretty close to what you have there” (referring to Exhibits T, U and V), though there may have been “a little more” snow on the date of his accident. Claimant also agreed on cross-examination that: the Lodge is located near the bottom of the mountain; it is possible to ski right up to the deck where he fell; and, on the day of the accident, ski racks were placed in front of the deck (see Ex. 9).
To establish a prima facie case of negligence, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a breach of that duty; and (3) Defendant’s breach of that duty was a substantial factor in the events that caused the injury suffered by Claimant (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Kampff v Ulster Sanitation, 280 AD2d 797, 797 [3d Dept 2001]; Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]; PJI 2:10, 2:70). “In determining whether claimant has carried [his or] her burden, the Court, as fact finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes” (Rice v State of New York, Claim No. 107632, dated June 19, 2006, Hard, J. [UID No. 2006-032-505]; see Burton v State of New York, 283 AD2d 875, 877 [3d Dept 2001]). The State has a duty to maintain its facilities in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (Miller v State of New York, 62 NY2d 506, 513 [1984]; Preston v State of New York, 59 NY2d 997, 998 [1983]; Basso v Miller, 40 NY2d 233, 241 [1976]; Bowers v State of New York, 241 AD2d 760 [3d Dept 1997]). The State, however, is not an insurer of the safety of those who enter upon its premises and negligence cannot be inferred solely from the occurrence of an accident (see Tripoli v State of New York, 72 AD2d 823 [3d Dept 1979]; Ebuzoeme v City Univ. of N.Y., 10 Misc 3d 1079[A], 2005 NY Slip Op. 52256[U] [Ct Cl 2005]). Moreover, a claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]; Lolik v Big V Supermarkets, 210 AD2d 703, 704 [3d Dept 1994], revd on other grounds 86 NY2d 744 [1995]; Sharrow v New York State Olympic Regional Dev. Auth., 193 Misc 2d 20, 43 [Ct Cl 2002], affd 307 AD2d 605 [3d Dept 2003]).

In order to establish a breach of that duty in a slip and fall case, Claimant must prove by a preponderance of the credible evidence that: (1) a dangerous condition existed; (2) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (3) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Medina v Sears, Roebuck & Co., 41 AD3d 798, 799 [2d Dept 2007]; Borenkoff v Old Navy, 37 AD3d 749, 750 [2d Dept 2007]; Mehalco v Palleschi, 15 AD3d 745, 746 [3d Dept 2005]; Dapp v Larson, 240 AD2d 918 [3d Dept 1997]).
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has failed to meet his burden, and has not established by a preponderance of the credible evidence that Defendant was negligent in connection with his accident.

Claimant offered generally sincere and straightforward testimony. Yet, the Court determines that it was not credible on some important points. It was marked by imprecision and depended, to some extent, on what Mr. Winter surmised happened, rather than what he actually observed. Claimant’s expert opinion witness, Mr. Moraghan, is a licensed engineer in New York and five other states, with pertinent educational credentials and experience. In conducting his investigation and formulating his opinions, he relied upon the photographs that are Exhibits 1 through 7 and Exhibit 9, as well as his educational and professional experience. At the same time, Mr. Moraghan did not visit the Lodge to conduct a formal site visit as part of his review. As shall be discussed below, that omission diminishes the weight which the Court ascribes to opinions he proffered. The Court credits the straightforward testimony provided by Mr. Kittle.
Condition of Deck Not Established as Substantial Factor in Accident
The Court finds that Claimant did not establish by a preponderance of the credible evidence that the condition of the deck was a substantial factor in the events that caused his injury. The Court concludes that: (1) Mr. Winter was not sure where he stepped up onto the deck; and (2) in any event, his accident was just as likely to be the result of his own failure to use reasonable care as it was on account of the allegedly dangerous condition of the deck.

To be sure, “[t]he law does not apply [an] unreasonable ... requirement of certitude” (Gramm v State of New York, 28 AD2d 787, 788 [3d Dept 1967], affd 21 NY2d 1025 [1968]. Claimant was not obliged to establish the precise place or manner where, or in which, he fell (Derdiarian v Felix Contr. Corp., 51 NY2d 308, supra at 315; Munno v State of New York, 266 AD2d 694 [3d Dept 1999]; Gramm v State of New York, 28 AD2d 787, supra at 788; PJI 2:70). At the same time, “[m]ere conclusions based upon surmise, conjecture, speculation or assertions are without probative value” (Maiorano v Price Chopper Operating Co., 221 AD2d 698, 698 [3d Dept 1995]) and the “failure to prove what actually caused a [claimant] to fall in a situation where there could be other causes is fatal to a [claimant’s] cause of action” (Dapp v Larson, 240 AD2d 918, supra at 919; see Martin v Wilson Mem. Hosp., 2 AD3d 938, 939 [3d Dept 2003]; Barnes v Di Benedetto, 294 AD2d 655, 656-657 [3d Dept 2002]; Ramee v Weathervane Seafoods, 273 AD2d 768, 769 [3d Dept 2000]; Patterson v State of New York, Claim No. 104501, dated July 28, 2003, Sise, P.J. [UID No. 2003-028-006] [the last, a case in which a claimant did not know what caused her to trip and fall inside the Lodge at Belleayre]).

In this Claim, Mr. Winter conceded that he did not look down at the deck edge as he stepped up onto it. Rather, he was looking straight ahead and his attention was directed at picnic tables that were located away from the deck edge. Thus, he was able to assert only that his accident occurred in the “general area” he identified, that it “would have to be” in that place. He did not explain, however, why that would have to be the case, or how he reached that conclusion.

His contention that he examined the area later that same day is contradicted by his deposition statement that he “didn’t know to” undertake such an investigation. Mr. Winter agreed, on cross-examination, that the edge of the deck visible in Exhibit 9 appears to be rather intact, with the exception of the area where he said he stepped up onto it. His expert, Mr. Moraghan, estimated that Exhibit 9 depicts a “broad view of the front edge of the deck” on the order of 30 feet in length. Mr. Kittle estimated that the entire length of the deck is between 75 and 80 feet on the side where Mr. Winter’s accident occurred. The Court does not find credible Claimant’s identification of a few planks along that long deck edge as the place where his accident occurred. Rather, the Court determines it is the result of conjecture and speculation. Thus, the Court does not credit Mr. Winter’s testimony that the area depicted in Exhibits 1 through 7 and Exhibit 9 (photographs taken one week after the accident), would have to be the general area where he stepped onto the deck.

Moreover, Claimant has failed to establish that his accident was caused by the condition of the deck. Mr. Winter’s testimony itself suggests other possible reasons for his mishap. He did not look down at the edge of the deck before he placed his foot onto it. He further conceded that he may not have placed his entire right foot onto the deck as he stepped up. Mr. Winter estimated that “at least three-quarters” of his foot was on the deck, but some part of the foot and/or heel was not. In addition, Claimant testified that, just before his accident, he had left the paved, macadam path to walk, in his street shoes, through “slushy” conditions. He walked in an area that was groomed and maintained for skiers (ski racks are visible in Exhibit 9).

Mr. Kittle testified that there is only a very slight elevation difference between the deck and the macadam path just outside the Lodge doors, “maybe an inch and a half or so, just the thickness of a plank” (see Ex. W). The ground slopes downward, however, so that, as one travels farther away from the doors, the distance between the ground and the level of the deck surface increases (see Exs. B, C, E, F, G, H, I, M and U).

Claimant agreed that he chose the spot where he elected to step up onto the deck. He testified that, after he walked past the deck in his effort to contact the children, he returned only “a little bit” before stepping up onto the deck. Thus, he chose an area some distance from the Lodge doors. The ground already had sloped away in the area Claimant identified, well below the level of the deck. Indeed, the exhibits suggest that the height of the riser between the ground and the surface of the deck was considerable in the general area he identified (perhaps as high as Mr. Winter’s upper calf, or just below his knee) (see Exs. 1, 4-5). Mr. Winter agreed, on cross-examination, that nothing prevented him from accessing the deck at other points.

“Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, [claimant] cannot have a recovery, since he [or she] has failed to prove that the negligence of the defendant caused the injury” (Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]; see Bernstein v City of New York, 69 NY2d 1020, 1021 [1987]; Gibson v State of New York, 13 Misc 3d 1244 [A], 2004 NY Slip Op 51906[U]).

The Court determines that Claimant has failed to meet his burden of submitting “evidentiary proof to demonstrate that [his] injury was a natural and probable consequence of conditions for which [Defendant is] responsible” (Ellis v County of Albany, 205 AD2d 1005, 1007 [3d Dept 1994]; see Ingersoll v Liberty Bank of Buffalo, 278 NY 1, supra at 8; Gramm v State of New York, 28 AD2d 787, supra at 788). Rather, the Court concludes that it is just as reasonable and probable that Mr. Winter’s accident was the result of a failure on his part to use reasonable care to observe his surroundings, to see what there was to be seen, and to avoid accidents. He chose to walk through a slushy, snow-covered area. He did so wearing only street shoes and while carrying a coffee. He further elected to access the deck in a general area where he was on sloping ground and where he would need to step up to a greater height than he would have to if he had simply walked a few paces farther back towards the Lodge doors. As he attempted to accomplish that step, he was looking straight ahead and not where he was walking. As he did so, he did not plant his entire right foot on the deck surface, thereby reducing its capacity to help steady and support him as he attempted to hoist his left foot and his body up onto the deck. Finally, Claimant himself stated at his deposition that the wood on the deck did not break away. His foot did not get stuck into the deck (Ex. X, p. 55, line 16 – p. 56, line 9). He did not claim to have tripped on an exposed nail head. Thus, the Court determines that the Claimant failed to meet his burden of establishing where his accident occurred, or that the conditions in that place were a substantial factor in the events that resulted in his fall.
No Dangerous Condition Established on Accident Date
Assuming, arguendo, that Claimant did identify the area where he fell with sufficient precision, and that a dangerous condition is depicted in the exhibits, it does not follow that those conditions were the same ones Claimant encountered one week earlier. Because of his imprecise identification of the place where he fell, and the conflict between his live testimony and his deposition testimony about whether he examined the area on the date of the accident, the Court attaches little weight to Claimant’s testimony that the conditions depicted in Exhibits 1 through 7, inclusive, and Exhibit 9 are fair and accurate depictions of what the deck looked like on the date of his accident.

Claimant’s expert opinion witness, Mr. Moraghan, attempted to bridge that gap in time. He said he could conclude, “with a great deal of certainty,” that the deck was old and weathered. Mr. Moraghan believed, moreover, that the conditions depicted in the exhibits had existed for some time. Mr. Moraghan’s opinion regarding the age of the deck was based on several factors. First, Mr. Moraghan stated his belief (later confirmed by Mr. Kittle) that the deck was constructed from pressure- treated lumber. Mr. Moraghan explained that such lumber has “an overall yellowish color” when purchased new and that it weathers with the passage of time. On cross-examination, he stated that, “[b]ased on these photos, I do not see a distinction between new and old lumber.” Second, he suggested an “overall deterioration of the edge of the deck,” visible in Exhibits 1 and 9, that might have been caused by pedestrian traffic. Likewise, he attributed frayed plank ends to ski boots “chafing the edge of the deck” (see Ex. 3). Mr. Moraghan did not believe that the level of deterioration he detected could occur in one season and had to have occurred gradually over time.

The Court is not persuaded by Mr. Moraghan’s opinion. With respect to his first factor, the failure to conduct a site inspection vitiates the strength of his expert analysis since it was based entirely on the photographic exhibits. On cross-examination, Mr. Moraghan stated that he did not know the process by which those photographs were taken or developed. He agreed, however, that computer software programming could be used to alter colors and shading in the processing of photographs. He could not say whether that had occurred in this case.

Moreover, the Court credits the testimony of Mr. Kittle, who stated that he personally knew that planks have been replaced over the years. With respect to the deck’s appearance, Mr. Kittle agreed that the color of a new replacement piece of lumber would differ from the original decking, but testified that it “would homogenize after a while” with the rest of the deck surface. “There would be an obvious difference for a brief period of time and, under real close inspection, you could pick out a newer board, as opposed to an old one, even over some length of time. But, photographs taken from a distance wouldn’t show that up, particularly if the photograph is taken at such an acute angle as that [depicted in the exhibits]. You’d need to be almost [at] a direct overview to pick out a replacement board.”

The Court also is unpersuaded by Mr. Moraghan’s second factor, that the deterioration of the deck had to be the result of some inexorable process that occurred over several years. On cross-examination, Mr. Moraghan agreed that it was “entirely possible” that the deterioration noted was the result of an acute event. He agreed that he was familiar with mechanical ski-grooming equipment and that, if such equipment got too close to the deck, it could have damaged or chipped the edge.

When Mr. Kittle was invited, on cross-examination, to opine concerning the condition of the deck edge (see Exs. 4 and 5), he confirmed that it could have been damaged by such an acute event. Mr. Kittle believed that one of the machines that groom the snow might have gotten too close “and just chipped the edge off” the deck. He explained that the machines have “large, drum-like” tillers on the back that chop up snow and ice in order to create a more granular surface. Mr. Kittle thought that a machine could have backed-up with its tiller rotating and nicked the deck.

Mr. Kittle noted that the area alongside the deck is groomed because it is a very high traffic area and, if it gets warm during the day, the area becomes very icy. He agreed that the groomers go out “every single night.” Mr. Kittle explained that each tiller is about 18 feet wide. They are “very large, very powerful, very noisy machine[s] and, if they were to clip a little piece of lumber like that, [the operator] probably wouldn’t even know it.”

One reason Mr. Moraghan held to his opinion that the deck showed signs of gradual deterioration, rather than acute trauma, was that if mechanical equipment caused the damage he would expect to see evidence of “lateral tearing” (e.g., transverse to the direction of the deck) on the face of the boards. In his view, no such damage was visible on the deck. Mr. Kittle explained, however, that the damage inflicted by the tiller’s teeth would not be in a uniform 18-foot swath unless “the tiller was dead parallel with the edge of the deck.” Otherwise, if the machine “backed in at any sort of a tangent, it would only be a small section that would get struck.”

Thus, the Court concludes that the deck edge could have been damaged by an acute trauma, such as being hit by a snow grooming tiller, that occurred at any time between Mr. Winter’s accident on March 20, 2004, and one week later, when the photographs that are Exhibits 1 through 7, inclusive, and Exhibit 9 were taken. As a result, it is the Court’s determination that the exhibits do not establish what Mr. Winter’s own testimony was not able to provide the condition of the deck on the day of Mr. Winter’s accident.
No Notice Established
It follows also that Claimant has not established that Defendant had notice of any putative dangerous condition. If the State created the condition, as would be the case if the grooming machines chipped the deck, no such notice would be required. It cannot be determined on this record, however, whether any such acute trauma might have occurred prior to the date of Mr. Winter’s accident.

If the deterioration occurred over time, notice was not established. “To constitute constructive notice, 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” (Gordon v American Museum of Natural History, 67 NY2d 836, supra at 837).

Mr. Kittle testified that, “for a majority of our season, the snow level is actually above the edge of that deck” and that he deliberately leaves the snow “feathered” over the edge of the deck. He explained that the “feathering” of snow over the deck edge is meant to create a smooth transition for skiers between the deck and the snowy ground. Thus, for most of the ski season, the edge of the deck is covered by snow and not exposed. Mr. Kittle also testified that snow is cleared from the remainder of the deck “nearly every day” during the season because Belleayre “makes its own snow storms” during the snow-making process and wind shifts snow onto the deck. Under such conditions, even assuming that the plank edges were exposed and visible on the date of the accident, the Court cannot determine for how long a period that might have been the case. Thus, Claimant has not established that Defendant would have had constructive notice that the allegedly dangerous condition existed.
Accordingly, Defendant’s motion to dismiss for failure to make a prima facie case, made at the conclusion of Claimant’s case and upon which the Court reserved decision, is now granted and the Claim is dismissed. All other motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial are now overruled.

The Chief Clerk is directed to enter judgment accordingly.

February 28, 2008
Albany, New York

Judge of the Court of Claims

[1].All quotations are taken from the audiotape recording of the trial.
[2].The exhibits were marked at the deposition as Exhibits G through K, inclusive.
[3].The exhibit was marked at the deposition as Exhibit A.