Claimant alleges that she was injured in a fall at the McPike Addiction
Treatment Center located at 1213 Court Street in Utica, New York. The fall is
alleged to have occurred on a roadway at the Center on December 28, 2003 in the
early afternoon, while claimant was taking a stroll on the premises with her
grandson, who was a patient at the facility. According to the deposition
testimony of claimant’s husband, who had driven her to the facility, it
was a bright day and “sunny probably” at the time of her fall.
The claim states that claimant “was caused to slip and fall on debris
located in the roadway and/or sidewalk”. However, in her deposition,
claimant was more specific about the fall itself and stated that she thought she
stepped on a pebble or a small stone, and it “threw” her.
Claimant’s grandson testified at his deposition that the fall occurred in
the roadway on the right side of the building. He testified that there was no
ice or snow on the ground at the place of the fall. He makes a vague reference
to having noticed “debris” at the site of the fall, but he did not
notice it prior to the fall, nor does he describe it in any detail. While he
tried to connect the debris to tire tracks he saw elsewhere on the grounds, and
concluded that a state vehicle caused those tire tracks, and that the tracks
caused the debris, this was nothing but conjecture.
Defendant’s motion for summary judgment is based upon the argument that
this was not a dangerous condition, and in any event, the road’s condition
was totally observable. While counsel cites law relative to the issues of
actual or constructive notice to the defendant, no proof is offered by the
defendant as to lack of notice, whether actual or constructive, to the
“dangerous condition”. Likewise, there is no proof offered to
counter the claim that defendant created the condition. The crux of
defendant’s argument is that the condition itself was not dangerous.
Claimant opposes the motion, with claimant’s counsel arguing, without
proof, that defendant’s snowplowing operations on December 17 -18, 2003
caused the pebble and “debris” to be placed in the roadway. And
“while it [pebble, debris, etc.] may have been readily observable to some
extent, how much of it was observable is something that must be assessed by the
trier of fact based upon the evidence.”
A motion for summary judgment should be entertained only after the moving party
has established, by competent admissible evidence, that it is entitled to
judgment as a matter of law (see CPLR 3212 [b]; Haggray v Malek,
21 AD3d 683, 684 ). If the movant meets this initial burden, the opposing
party is required to submit evidence which raises a material issue of fact to
preclude an award of summary judgment (see Zuckerman v City of New York,
49 NY2d 557, 562 ).
(Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
The moving party, the State, must make a prima facie showing of entitlement to
summary judgment as a matter of law, setting forth sufficient evidence to
demonstrate the absence of any material issues of fact (Winegrad v New York
Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49
NY2d 557, 562). Once that showing is made, however, the burden shifts to the
opposing party to produce sufficient evidence, in admissible form, to
demonstrate issues of fact requiring a trial (Zuckerman v City of New York,
49 NY2d 557, 562)
The law is well settled that a property owner of premises open to the public
has a duty to maintain the premises in a reasonably safe condition to prevent
foreseeable harm or injuries to persons upon the premises (Basso v
Miller, 40 NY2d 233, 241).
In a slip and fall case,
[t]he State’s liability for injury resulting from an alleged dangerous
condition is premised upon proof that it either created the alleged dangerous
condition or knew, or in the exercise of reasonable care, should have known that
a dangerous condition existed but, nevertheless, failed to remedy the situation
within a reasonable time period (citations omitted).
(Sheridan v State of New York, UID No. 2007-041-045, Claim No. 110138,
Motion Nos. M-73714, CM-73909, September 17, 2007, Milano, J.).
Considering all the evidence in the light most favorable to the claimant,
claimant inexplicably fell when she stepped on a pebble. At the time of the
fall, claimant was walking, not on a sidewalk, but in the roadway. It was a
clear day in late December during the winter, and there had been no snowfall in
days. A snowfall for which snow removal services had last been provided
occurred at the facility about ten days prior to the incident. No description
whatsoever is offered as to the precise size of the area of
“debris”, or of the various objects which comprised the alleged
debris, but the Court finds the issue of debris to be irrelevant, since claimant
is very specific about only a pebble or small stone as being the precipitating
factor in her fall.
A pebble in a roadway in Central New York in the heart of winter does not
constitute a dangerous condition. The use of salt, sand or ash to treat ice and
packed snow on streets and roads is a well established and well known practice
in Upstate New York. This was a public roadway used by vehicles in the winter.
Regardless of whether the State used salt, sand or ash to treat ice on the
roadway (no proof was offered by either party on this point), it is common
knowledge that vehicles traveling the roadways in winter pick up these
materials from the roadways and deposit them in our driveways, garages, streets
and parking lots and that these materials often contain extraneous pebbles,
stones and rocks. Occasional pebbles are also expected detritus on our roads
and driveways from numerous other sources as well.
In Lopez v State of New York, UID No. 2003-016-070, Claim No. 100597,
September 9, 2003, Marin, J., claimant and her family were walking on a road at
the Riverbank State Park. At trial there was testimony that a portion of the
black asphalt on the road had chipped away and that there were small pieces like
“black little pebbles”. Claimant blamed the pebbles for her fall.
However, the court noted that while claimant said that she believed the pebbles
caused the fall, claimant had offered no testimony that the pebbles were
slippery or that they had accumulated to create an uneven surface. The claimant
merely stated that she believed the pebbles caused her fall and further
testified that “I just twisted my - - I don’t recall if it was that
I twisted my ankle or was it - - the only thing I know is that I fell, and I
just heard like a pop.” The court found that claimant failed to show that
a dangerous condition existed and failed to show that the condition that did
exist was a proximate cause of claimant’s fall.
The situation here is analogous. The claim states that claimant was caused to
slip and fall on debris. However, in her deposition testimony, when asked to
amplify, claimant stated that
“[t]here was [sic] little pebbles and dirt, debris, little limbs from the
trees, not big limbs, but little limbs from the tree, and I just stepped right
and I – I’m not positive, but I think this is what happened. I
think I stepped on a pebble or a stone, a small stone, and it just did it right
and it threw me.” When questioned as to whether she lost her balance, she
stated “I didn’t actually lose my balance. I fell immediately. I
stepped on it and I went.” It was not debris that caused the fall,
according to claimant - it was a pebble or small stone. And yet claimant has no
explanation for how or why the pebble triggered a fall.
In Nardi v Crowley Marine Associates, Inc., 292 AD2d 577, plaintiff
allegedly slipped on a moss-covered incline along the shoreline and was injured.
In addition to finding the condition open and obvious, the court also held
a landowner will not be held liable for injuries arising from conditions on the
property that are inherent to the nature of the land and could be reasonably
anticipated by those using it (see Moriello v Stormville Airport Antique Show
& Flea Mkt., 271 AD2d 664; Csukardi v Bishop McDonnell Camp, 148
AD2d 657; Rosen v New York Zoological Socy., 281 AD2d 238).
(Nardi v Crowley Marine Associates, Inc., 292 AD2d 577, 577-578).
Likewise, in Medina v Sears, Roebuck and Co., 41 AD3d 798, plaintiff
allegedly fell on a wet uncovered ramp. The court found that the “mere
fact that the ramp became wet from the rain was insufficient to establish the
existence of a dangerous condition (citations omitted)” (Medina v
Sears, Roebuck and Co., 41 AD3d 798, 799).
The presence of a small stone or pebble on a roadway in winter is analogous to
the moss-covered incline or a wet ramp in the out-of-doors. These are all
conditions inherent to the locale, and, without more, the pebble, like the
latter two conditions, does not constitute a “dangerous condition”.
Since the court finds that there was no “dangerous condition”, it
need not reach other issues raised on the motion. Defendant’s motion for
summary judgment is granted and the claim is dismissed.