New York State Court of Claims

New York State Court of Claims

NEWBURY v. STATE OF NEW YORK, #2008-042-001, Claim No. 111621


Claimant alleges that she was injured in a fall while leaving work at a correctional facility and that she had complained to employees of the facility about the ice and snow conditions inside and outside of the facility’s gates. A bifurcated trial on the liability portion of the claim was held. The court, after considering all of the evidence at trial, the testimony of witnesses and the exhibits received at trial, finds that the claimant failed to prove her case by a preponderance of the credible evidence and the claim is dismissed.

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:
Defendant’s attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 22, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This is the court’s decision following a trial on the issue of liability of a claim against the State of New York. Claimant asserts that she was injured in a fall while leaving work at the Marcy Correctional Facility. A bifurcated trial on the liability portion of the claim was held on November 16, 2007 and November 26, 2007.

Plaintiff, Georgia Newbury, testified that she graduated with a degree in psychology in 1989 and worked continuously in the field of social service up until January 5, 2004 when she was injured when she fell leaving work at the Marcy Correctional Facility. Ms. Newbury has a varied and extensive work history, including work in social service agencies in Oneida County, New Jersey and Florida.

Claimant testified that on the date of the accident, January 5, 2004, claimant was working as a senior counselor for Phoenix House of New York at the Marcy Correctional Facility. Claimant counseled prisoners immediately prior to their release concerning drug and alcohol abuse and rehabilitation. Claimant had been instructed on the procedures for entering the prison prior to her interview and had worked at the institution since January of 2003. Claimant stated that she was familiar with the physical layout of the facility, both outside the fences and inside the fences. There were various parking areas and she had parked in all of those various parking areas.

According to claimant, on the day of the accident, her shift was from 2:00 p.m. to 9:00 p.m. and she had worked that shift for approximately two weeks prior to the accident. On the day of the incident, she arrived at work shortly before 2:00 p.m., parked her car in a parking lot designated for employees and processed through the Administration Building into the inside of the prison. Once inside the prison, she was taken by shuttle bus to the “CASCAT Building”. Claimant testified that she complained to employees of the prison on several occasions about icy and snow conditions outside of the prison and inside of the prison and also complained to peers and her supervisor about snow and ice, both inside and outside the prison gates.

Claimant further testified that on the date of the accident, she left her home at approximately 1:20 p.m. The roads near her home were somewhat snow-covered, but she testified that the main roads were clear of snow. Claimant testified that when she arrived at the facility, the roadways into the facility had hard packed snow on them throughout the entire roadway area, parking area and sidewalk areas. Claimant testified that when she walked from her car to the Administration Building, which path she had to traverse in order to get into the prison, she walked over clumps of snow and ice in both the parking lot and the other areas leading from the parking lot to the building. Her testimony was that the concrete walks had ice and packed snow upon them and that it appeared that there was approximately one and one-half inches of snow on the ground that had recently fallen. Other employees had apparently walked over the area and packed it down, and the area had not been shoveled. The area immediately in front of the Administration Building had apparently been shoveled, but all of the snow had not been removed. The conditions above described were, according to claimant, reported by her to the guard who was on duty when claimant walked into the Administration Building and passed through the Administration Building. It was further reported by the claimant that the area inside the yard, which claimant observed while waiting for the shuttle bus, also had snow on the ground and there was snow on the ground where she left the bus.

Claimant left the “CASCAT Building” at approximately 3:00 p.m. to go to another building and the weather conditions were cloudy. Claimant testified that at approximately 6:00 p.m. it was snowing lightly and there was approximately one-quarter inch to one-half inch of fresh snow on the ground.

Claimant started to leave for home at approximately 8:30 p.m. and was picked up by her shuttle bus at approximately 8:35 p.m. to return her to the Administration Building so that she could leave the prison. Claimant testified that when she was exiting the bus, she complained to the bus driver about slippery conditions in the prison yard and the areas that she traversed. Claimant stated that she then processed through the building and about eight or nine people left with her. She testified that she basically retraced her steps from the parking lot into the building back from the building to the parking lot with several of her co-workers. She testified that the conditions had not changed significantly and that she was wearing leather sole boots that had heels of approximately two inches and platform soles that were approximately one-half inch high.

Claimant stated that she walked on the sidewalk to the roadway, across the roadway to the grassy area, across the grassy area to a sidewalk adjacent to the parking lot, crossed the sidewalk and then stepped her right foot onto the parking lot and slipped and fell in the parking lot on an area which she described as snow covering black ice.

Claimant testified that the entire area from the Administration Building to the parking lot had been slippery and that she had difficulty walking toward her car and had to shuffle across the concrete sidewalk and the roadway before she arrived at the parking lot and fell. It was testified to by claimant that several co-workers were with her when she fell, including Anita Bartlett, Liesbeth Mecellan, Elaine, Lois, and Clairmont Sackey. Claimant further testified on cross-examination that she had the phone numbers of all of the above individuals who were near her at the time of the accident and who assisted her at the scene of the accident.

Claimant testified that there were no employees of the defendant at the scene that she knew of and that she lay on the ground for a minute or so and then was able to get up, go to her car and go home. According to claimant, she reported the accident to her immediate supervisor, Lois, who was present with her at the accident scene and to her ultimate supervisor at 6:00 a.m. the following morning via telephone. The accident was reported to the Marcy Correctional Facility on the 9th day of January, 2004, and a written report was filed by claimant.

Under cross-examination claimant reported that she had never filed a written complaint about the snow and ice condition in the parking lot, sidewalk and yard area, and that she did not recollect the names of any of the individuals employed by the Department of Correctional Services that she complained to. At the time of the actual fall, claimant testified that she was carrying a canvas bag in the left hand, which included some personal items. Claimant also testified that subsequent to the accident, she spoke with either Lois or Elaine on the phone and spoke to Mr. Clairmont Sackey on the phone a few times after the accident about the accident.

Claimant then called Richard Morris, a meteorologist, as her next witness. Mr. Morris testified concerning his education and experience and described certain exhibits which he had prepared which showed local climatological data for the Oneida County area, forecast information and surface weather conditions. The sum and substance of Mr. Morris’s testimony was that on January 5, 2004, there was freezing rain between 9:00 a.m. and 10:00 a.m., and between 4:00 p.m. and 5:00 p.m. about one-tenth of an inch of snow fell. Between 3:03 p.m. and 3:50 p.m., there was enough freezing mist to coat the ground, and between 6:15 p.m. and 6:29 p.m. there was a trace of snow. Mr. Morris also testified that the application of calcium chloride or rock salt would have reduced any snow or ice on the surface to a liquid which would have then been capable of being easily removed.

The State called Terry Whitaker, who was an employee at Marcy Correctional Facility with 19 years of experience. Mr. Whitaker testified that he was a maintenance supervisor on January 5, 2004 and that his job was to oversee the maintenance of facilities, including snow removal in parking areas and roadways. Mr. Whitaker emphasized that he was not responsible for the snow removal on sidewalks and that inmate crews were responsible for the maintenance of the sidewalks at the facility. He testified that there was a written policy about snow removal, but that he did not have it. He also testified on cross-examination that his department kept a logbook in the garage, but that there was no logbook that would emphasize or which would include when or if snow removal was done. Mr. Whitaker stated that the sergeants, the watch commander and the maintenance people all checked the facility for snow and ice. He said that calcium chloride was generally applied to concrete and that if it was not done, it would be a departure from the policy of the department concerning snow and freezing rain. He testified that the inmates were responsible for the sidewalks around the “grassy area” and testified that the sergeant determined if the inmate crew would put down either salt or calcium chloride on the sidewalks.

The State’s next witness was Mr. Vincent Thompson who was a correction officer at Marcy Correctional Facility with approximately 18½ years of service as a correction officer. He was employed at Marcy Correctional Facility in December of 2003 and January of 2004 and was the relief officer responsible for the outside crew whose duty it was to have inmates remove snow and ice whenever necessary from all sidewalks in front of the Administration Building and all sidewalks adjoining parking lots. He said that the size of the crew varied from 0 to 10 depending upon how many inmates were granted the privilege of working outside the gates. He testified that his crew not only did the sidewalks, but also did the area surrounding the curbs at the parking lot and the driveways. He testified that the curb area that he was responsible for - or the roadway and parking area he was responsible for - extended approximately 18" from the curbs. Thompson testified the reason that his crew had to take care of the area approximately 18" from the curb was that the snowplows could not get that close to the curb and therefore his crew would be responsible for it. He said his work crew generally started around 5:00 a.m. or 5:30 a.m. if there was snow or ice, or approximately 8:00 a.m. if there was no immediate need for their work. He stated that the goal of his crew was “bare pavement” at all times on sidewalks and for the parking lot and driveway areas approximately 18" from the curbs. He testified that the crew had shoveled, used snow blowers and spreaders to spread calcium chloride and/or salt on the sidewalks and on the asphalt areas that they were responsible for. He testified that the areas surrounding the “grassy area” were asphalt and were not cement. Mr. Thompson testified that in the event work was required to be done after 2:00 p.m., he would either have to obtain permission for overtime from his sergeant or from the watch commander, or the crew from the Administration Building could come out and supplement the work of his crew.

The attorneys also stipulated into evidence the depositions of Edward Manion, Kevin Newlands, David Muha, Michael Lynch, Frederick Kopyt and Kenneth Smith in lieu of trial appearances. The Court has reviewed all of the deposition testimony of the above-referenced individuals, employees at Marcy Correctional Facility, and finds that there was nothing in the deposition testimony which was different from or added to the testimony of the witnesses who testified personally before the Court.

The next witness for the State was Mr. Thomas Fingerlow. Mr. Fingerlow, a correction officer, worked with Mr. Thompson. Mr. Fingerlow’s testimony added nothing to the testimony of Mr. Thompson, with the exception that he informed the Court that the area his crew maintained at times extended up to four feet from the curb rather than the 18" testified to by Mr. Thompson.

The next witness for the State was Officer Robert Gebo. Officer Gebo was assigned to the lobby of the Administration Building on the day shift. However, Officer Gebo does not recall if he worked on January 5th and no evidence has been introduced that he did work on January 5th. Officer Gebo did testify, however, that he has no recollection of the claimant, whom he knew, ever complaining to him about snow or ice.

Shawn Ryan was the next witness for the State. He is presently a sergeant at the Rome Correctional Facility, but worked at Marcy Correctional Facility on January 5, 2004. He testified that he was the relief officer in the lobby of the Administration Building and worked the 3:00 p.m. to 11:00 p.m. shift. He did not know if he worked on the day in question. He testified that he did know the claimant however, and he never took a complaint from the claimant about the building or the snow and ice outside of the building.

John Novier is also a correction officer at the Marcy Correctional Facility and works the 3:00 p.m. to 11:00 p.m. shift as the lobby officer at the Administration Building. He testified that when he was not working his shift, Officer Ryan was his substitute. He said that he knew the claimant and that he never got any complaints from the claimant about snow or ice outside of the building. He testified that his job responsibilities included checking the front of the building for snow and ice and if necessary, ordering his “quarters”, who were also inmates, to clean the front of the building and remove whatever snow and ice there may have been. He testified that his responsibilities were the same as Officer Ryan’s responsibilities.

Robert Anderson was the next witness for the State. He testified that he was a correction officer at Marcy Correctional Facility on January 5, 2004. Mr. Anderson testified that at that time he drove the shuttle bus which transported civilians, inmates and correction officers around the interior of the Marcy Correctional Facility. He testified that while he does not have a specific recollection of driving the shuttle bus on the 5th of January, 2004, his own personal records indicate that he drove the bus from 3:00 p.m. on January 5, 2004 to 7:00 a.m. on January 6, 2004. He testified that he does not know the claimant personally or know who she is, but he did state that he has no independent recollection of any complaints about snow or ice ever having been made to him while working as a shuttle bus driver, including no recollection of any complaints being voiced to him by the claimant.

The final witness for the State was Lieutenant Adam Burris who was the watch commander in January 2004. Lieutenant Burris testified that as the watch commander he was responsible for the entire facility during the period that he was in charge, which was from 2:00 p.m. on January 5, 2004 to 10:00 p.m. on January 5, 2004. He said that all officers and sergeants had to report to him. Lieutenant Burris testified that part of his responsibility was to make sure that the facility was free of snow or ice. If there was any snow or ice on the ground that was not being taken care of by ordinary maintenance, he would order, and could order, that it be done either with the people on site or by authorizing overtime. As noted above, his responsibility included the entire facility - both inside the gates and outside the gates. Burris testified that those who reported to him were the perimeter officers, sergeants and any other officer who observed snow or ice conditions which required removal.

Lieutenant Burris testified that as part of his job, he had to walk from the Administration Building, where his office was located, to the Special Housing Unit, and to the Infirmary, on a daily basis and sign logs which indicated that he had in fact done that walk. He testified further that the walk from the Administration Building to the Special Housing Unit was approximately 3/8 of a mile in distance. The exhibits introduced into evidence show that he was at the Special Housing Unit at 7:47 p.m. on January 5, 2004. Lieutenant Burris testified that he has no personal recollection of anything that happened on January 5, 2004, but he further testified that his log, which was introduced as Exhibit F, would indicate if he had called in for any special snow or ice removal. He said that while he walked between the buildings, one of the things he did was check security, check for anything unusual, including snow or ice, or check to see if anything was out of place. He testified that if he noticed snow or ice that had to be removed out of the ordinary, he would call either maintenance or call in a special work detail, and that would be recorded in his log. There was nothing in the log which was admitted into evidence which indicated that he called in for any special ice removal on the 5th of January, 2004.

After considering all of the evidence presented at trial, including observing the testimony and demeanor of claimant and of the numerous witnesses who testified, and having reviewed the exhibits received at trial, the court finds that the preponderance of the credible evidence does not support claimant’s claim.

First, as to the circumstances of the fall itself, claimant testified there were at least five people within a very close proximity to her at the time of the accident. She further testified that she had the names and telephone numbers, although not the addresses, of the individuals who were within close proximity to her at the time of the accident. Nevertheless, claimant was the only witness to testify as to the circumstances of the slip and fall and as to the conditions at the site of the fall at the time of the fall.

Second, with regard to the obligations and responsibilities imposed upon the defendant State of New York, the law is well established that:

[t]he State is subject to the same duty of care imposed on other landowners to maintain its property in a reasonably safe condition (Basso v Miller, 40 NY2d 233; Condon v State of New York, 193 AD2d 874). The State is not, however, an insurer of the safety of its premises (Boettcher v State of New York, 256 AD2d 882). A claimant must, therefore, establish that the State either created the dangerous condition which allegedly caused claimant’s injury or had actual or constructive notice of the condition and failed to exercise due care to remedy it (Robinson v Albany Hous. Auth., 301 AD2d 997). The reasonableness of the State’s action is to be determined upon consideration of all the circumstances including, in the instant matter, “an awareness . . . of the problems caused by winter weather” (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681).

(Moye v State of New York, UID No. 2006-015-545, Claim No. 106530, July 7, 2006, Collins, J.).

In the instant case, claimant, who had worked at Marcy Correctional Facility for approximately a year prior to the incident, testified that she gave notice during the day of the slippery conditions to the guard at the administration building and to the shuttle bus driver who drove her to the drop-off point at the end of the day. But, she did not provide names for these workers. However, the defense witnesses, including the guard on duty and the bus driver, had no record of any complaints and did not recall claimant complaining.

Additionally, defendant’s employees testified credibly and at length about their practices and policies with regard to the snow and ice conditions on the premises and efforts to maintain the premises in as snow-free and ice-free a condition as is possible in winter. Claimant herself testified to snow accumulating during the day, prior to her alleged slip and fall.

Clearly, defendant did not create the condition. It is equally apparent, based upon the credible testimony, that defendant had neither actual nor constructive notice of a dangerous condition at the site of the alleged fall. And lastly, this was January in Upstate New York, and even the claimant herself testified that it was snowy both on and off defendant’s premises and the snow had continued to accumulate during the hours prior to her alleged slip and fall.

In light of all of the foregoing, the Court finds that claimant has failed to prove her case by a preponderance of the credible evidence and the claim is dismissed. Any motions not previously ruled upon are hereby denied.

Let judgment be entered accordingly.

May 22, 2008
Utica, New York

Judge of the Court of Claims