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
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
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
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 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
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,
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
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
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.