New York State Court of Claims

New York State Court of Claims

CORREA v. THE STATE OF NEW YORK, #2009-013-506, Claim No. 111767


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: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 23, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


On February 8, 2004, at approximately 7:50 a.m. (Exhibit 10), the Claimant slipped on an icy patch on the sidewalk between the Mess Hall and the Activities Building at Wyoming Correctional Facility (Wyoming) in Attica, as he was returning from morning chow. As a consequence of the fall, he suffered a fracture of his lower right leg, necessitating treatment at the Wyoming County Community Hospital. The trial of this timely filed claim was limited to the issue of liability, and I deal solely with that issue in this decision.

A little climatological background is required to set the weather conditions on the date of the subject accident. Based on the weather data introduced at trial (Exhibits 27, M, N, O, P, Q, R and S) and as testified to by Howard Altschule, Claimant’s weather expert, there were approximately 27 inches of snow on the ground in the area of Wyoming that had accumulated over a period of time prior to the accident. Over the days immediately prior to the accident, the weather/temperature varied with occasional melting and refreezing of the melt with additional freezing rain and/or drizzle, as well as some snow. On February 7, the day before the accident, weather watchers at Warsaw, located perhaps 13 or 14 miles from Wyoming, recorded the range of temperatures for that day from 38° to 22° and .05 inches of rain/melted snow, etc; .5 inches of snow/ice pellets/hail and 17 inches of snow, ice pellets, hail or ice on the ground (Exhibit Q).[1] When weather watchers actually observe the precipitation they use a straight line to mark the time period over which they observed it fall. A squiggly or wavy line denotes the time they believe precipitation probably fell, but it had not been personally observed. As they relate to the time of day or night, these markings appear under the AM and PM portions of the record (Exhibit Q). On February 8, 2004, the recorded high temperature was 22° and the low was 3°. It notes that precipitation probably fell between the hours of 6:00 a.m. to 11:00 a.m. and consisted of .06 inches of rain or melted snow and 1.5 inches of snow, ice pellets, or hail. According to Exhibit Q, there were 18 inches of snow, ice pellets, hail or ice on the ground on February 8.

Not surprisingly, the experts disagreed with each other as to what weather was actually occurring on the date of the accident, with Claimant’s expert testifying that it was not snowing on February 8 at the time of the accident, and Defendant’s expert testifying that there was a storm in progress. Each expert had use of the same data, including the weather watchers’ reports and Doppler radar covering the Buffalo and Rochester areas, including the towns in and around Wyoming (Exhibits M, N, O, P, Q, R, S and 27). They also had the Watch Commander’s logs for the period from February 5 through February 8, and the dorm log for February 8 (Exhibits J and T).

Claimant testified that he was transferred to Wyoming in February or March 2003, but he was unsure of which month. Nonetheless it is apparent that it was in the latter part of that winter. He received a pamphlet relating the standards of conduct for inmates as well as penalties for the violation of these standards. Germane to this incident is the rule requiring inmates to obey a correction officer’s directions and orders and to avoid being out of place, a violation which could result in being given a misbehavior report. He stated that inmates are told how to proceed to and from their dorms for classes, activities and mess, and to stay on the sidewalks or designated walkways, since failing to do so could result in a misbehavior report being issued which would subject the inmate to a disciplinary hearing.

Claimant was assigned to Dorm K at Wyoming, which was located in the East Compound.[2] The building designated as “Food Services” (hereinafter referred to as the Mess Hall) was located in the West Compound. Claimant marked in red on Exhibit 2 the route he was required to take from his dorm to the Mess Hall. The route was variously referred to as a walkway and/or roadway since most of it was used by facility vehicles and individuals on foot.

After mess, Claimant’s route would depend on where he was required to be. On Sunday, the day of the accident, he was returning to his dorm and retracing his earlier route to breakfast. It was on his return to his dorm that he fell on the sidewalk between the Mess Hall and the Activity Building. He created a detailed sketch of the area and marked the area where he fell in yellow (Exhibit 3). Of note is the red circle on the sketch which he designates as the area of significant ice accumulation and what he described as a concavity (depression) in the sidewalk. The larger black circle was identified as the area where rain or melting snow would spread upon the sidewalk and flow into the so-called concavity. Claimant was shown a photograph of the sidewalk on which he fell with a red circle on it that he identified as the area where water would accumulate in the concavity (Exhibit 5). He stated that the red circle on Exhibit 5 was within the black circle he drew on Exhibit 3, which would include the spot where he fell (Transcript - pp. 31-33). He identified in Exhibits 4 and 5 the fire hydrant that he claimed had dripped water immediately before his fall, which flowed to the walkway and froze (Transcript - pp. 34, 35).

It should be noted that when the sidewalk was constructed it was designed in such a way that the water would flow from the southwest elevation downward over the slope to the northeast and across the sidewalk as shown on Exhibits 4, 5, 6 and 7. Claimant testified that from the time he arrived at Wyoming he had observed the pattern of water flow over the sidewalk when it rained, when snow melted and from the leaking fire hydrant, shown in Exhibits 4 and 5. The water would then accumulate in the concavity he circled on the aforementioned Exhibits 5 and 6.

Claimant went on to describe the weather on the evening of February 7 as “blistering cold” and snowing heavily (Transcript - p. 37). According to him, the snow stopped at around 11:00 p.m. that night. On the morning of the accident, while it was still dark, Claimant left for mess. He testified that there were six or seven inches on the walkway at Dorm K, with light flurries still falling. He noted that the main walkway from the dorm to the Activities Building had been plowed sometime during the early morning hours. This area was wide enough for a truck with a plow to travel upon. However, the walkway between the Activities Building and the Mess Hall could only accommodate a small riding mower with a plow attachment. In addition, the inmate grounds crew would also clear this area.

Claimant stated that, as he went from the plowed area to the unplowed area (meaning the interior walkway), the snow was six to seven inches deep and reached the top of his boots (Exhibit 23). He marked Exhibit 2 in green as the point on the sidewalk between the Activities Building and the Mess Hall where he first observed that the snow had not been shoveled and came up to the top of his boots. He acknowledged that he did not see that much snow in this area the day before his accident. He observed no ice on the walkway that morning on his way to chow since it would have been covered with snow. He designated the spot where he fell on Exhibit 3 with a yellow marker. I also note that he stated he did not recall seeing ice on this stretch of sidewalk on the day prior to the accident (Transcript - p. 92).

He finished his morning meal and was returning to his dorm shortly after 7:30 a.m., walking along the same snow-covered walkway and following three other inmates. He stated these inmates slipped and fell on ice in the immediate area of the concavity in the sidewalk. He attempted to avoid them by veering to his left when his feet went out from under him and “my lower right extremity inverted and both the tibia and fibula snapped” (Transcript - p. 45). He was assisted to the infirmary by other inmates who were in front of him. The inmate injury report signed by the Claimant states that he “slipped on icy walkway fell - heard the bones snap down near my ankle” (Exhibit 10). He was later transferred to the Wyoming County Community Hospital for treatment.

Claimant called Correction Sgt. Charles Zawistowski, who testified that if an inmate violates any provision in the Standards of Inmate Behavior booklet (Exhibit 1), he could be written up for the infraction. The witness identified Exhibit 13 as a Department of Correctional Services (DOCS) directive relating to health and safety precautions. His attention was directed to subparagraph I, subdivision 8, which states that snow and ice should be removed from exits, hydrants, traffic lanes and walkways as soon as possible to prevent accidents. Upon objection by the Defendant, Claimant’s counsel stated his offer of this exhibit was necessary to demonstrate that Defendant had a duty to exercise due care to remove snow and ice before permitting inmates to traverse the grounds and that it had violated this duty. I permitted Claimant to proceed.

Sgt. Zawistowski stated that the markings on Exhibit 2 delineated the areas where civilian maintenance personnel would be responsible for snow removal from the walkways and/or roadways and where the Lawns and Grounds crew would have responsibility for snow removal (Transcript - p. 126). He also identified the route an inmate would use going from Dorm K to the Mess Hall and stated that a deviation could result in a Misbehavior Report. On the day of the accident he was the officer covering the West compound and was responsible for the West grounds crew. He explained that the grounds crew was responsible for the removal of snow from the walkways on the West compound except for the area directly in front of the dorms, which was the responsibility of the dorm porters. He acknowledged that the blue markings on Exhibit 2 represented the only areas that the Lawns and Grounds crews would have responsibility for snow removal and that they would generally use a 4-wheel drive tractor with a plow to remove snow and a tractor with an attachment to broadcast salt and sand over the area.

Sgt. Zawistowski investigated Claimant’s accident and wrote a “To/From” memorandum based on his investigation (Exhibit Z). He stated that he had no present recollection of the fall at the time of trial. He assumed that when the accident occurred he was in the Mess Hall but did not witness it.

On cross-examination he stated that he never saw the hydrant within the area of the fall leaking or water flowing from it in any manner. He also had not seen any water pooling on the sidewalk between the Activities Building and the Mess Hall. Sgt. Zawistowski was not aware of anyone falling on this sidewalk because of snow and/or ice prior to this accident. Any response to weather conditions such as snow or ice was his responsibility unless it became so severe that his crews could not handle it, in which case he would inform the Watch Commander who would call out the civilian maintenance crew to come to the prison to assist.

If there was a snow fall of three, four or five inches, Sgt. Zawistowski would have his crew out and attending to snow removal as soon as he could, and that would include the sidewalk where Claimant fell. While he had no recollection of the accident, he acknowledged that in the “To/From” memo (Exhibit Z), he wrote that Claimant “slipped on a small patch of ice and fell.” He stated that that must have been the condition he observed during his investigation and if the entire sidewalk was covered with ice he would have noted it in the report. He added that if he had observed six to seven inches of snow on the sidewalk between the Activity Building and the Mess Hall he would have called out his crew to remove it and, if necessary, contacted the Watch Commander to hold up the breakfast meal. He did not keep a record of times when he called out a particular Lawns and Grounds crew and had no way of determining whether he had called them out on the day of the accident or during any of the four to five days prior to this accident.

Correction Officer (CO) Carl Parmerter was the Fire and Safety Officer on the day of this accident, and in that capacity he was responsible for maintenance of the fire safety equipment, which included the fire hydrants located at Wyoming. As a Fire and Safety Officer he was required to maintain the maintenance records pertaining to fire hydrants as well as all accidents involving employees and inmates. He was familiar with the walkway in question, having walked it on many occasions. He stated that he had never seen water pooling on the sidewalk in question. He further testified that the fire hydrant located to the northwest side of the walkway where Claimant fell had never had a leak or been in need of repair according to his recollection. However, he noted that this hydrant is opened and flushed twice a year in April and October. This particular hydrant would have been flushed in October 2003 and April 2004, and if there had been a problem with it such as a leak, it would have been noted on the maintenance record (Exhibit AA), and there was no such notation.

He stated that he took photographs in 2007 of what he believed to be part of a drainage system (Exhibits W, X and Y). However, I gave these photos and any testimony relating thereto by this witness or any other witness little probative weight since there is nothing before me that establishes that it was a factor which contributed to this accident.

Parmerter also identified Exhibits D and E as catch basins located south of the sidewalk in question. He stated that during the time he had been at Wyoming prior to the accident he never saw these basins plugged, overflowing or unable to handle run-off, nor had he observed any water overflowing the basins spilling onto the sidewalk. A video of this area (Exhibit H) shows the same catch basins as are depicted in Exhibits D and E. The fire hydrant that Claimant testified was leaking is also shown in the video. He went on to explain that if he observed an accumulation of snow either on the sidewalk or basins he would contact the Lawns and Grounds crew or the Watch Commander. He was not on duty the day of the accident and therefore could not testify as to what conditions existed that day. When asked about the ruts shown on Exhibit 4, he surmised that they could have been created when the area was shoveled or plowed. He noted that on Exhibit 4 it did appear that the walk had been torn up, but he had no knowledge of when or why that had been done.

Gary Passero, a licensed professional engineer who designed drainage and surface water drainage systems, was called by the Defendant as an expert. He explained that the topography of the land between the Activities Building and the Mess Hall sloped in a northeasterly direction toward Buildings 5 and 6, as depicted on Exhibit K-1. To the west of Building 5 the land slopes to form a swale which runs north and south, parallel to Building 5 and heading north to Building 6 (Transcript - p. 203).[3] He placed blue arrows on Exhibit K-1 to indicate the direction of the runoff of water in the area to the catch basin (marked “CB”) located south of the sidewalk. This same catch basin is circled in red on Exhibit E and is located a distance of 20± feet perpendicular to the sidewalk. In Mr. Passero’s opinion, this construction afforded adequate drainage south of the sidewalk, and the design of the catch basin and the attendant underground piping was in accordance with good and accepted engineering practices.

He explained that when this area was under construction land was moved to permit water to flow from south to north and to collect in the catch basins or in the swale which would direct the water to the catch basin. Since the sidewalk between the Activities Building and the Mess Hall was designed to slope from the south or higher side to the north or lower side, the design allows the water on the sidewalk to have a sheeting effect as it drains off the surface. According to Mr. Passero, this manner of dispersion would reduce or eliminate any pooling upon the walkway. When shown Exhibits 4 and 5 with water that appeared to have pooled along the northerly edge of the walkway, it appeared to him to be in ruts caused by snow removal machines and not by design.

However, in response to the Court’s questions relating to the sheeting as a component of the drainage design features of the area where Claimant fell, Mr. Passero testified that when snow melts and refreezes, ice can form on the surface.

This claim raises once again the classic questions of snow and ice in upstate climes; the steps taken by State authorities to clear roadways and walkways for safe passage; whether the weather event before and during the time period when Claimant was injured falls within the penumbra of the so-called “storm in progress” defense, affording the Defendant a degree of insulation from culpability; and whether, if indeed there was a storm in progress with snowy and icy conditions, the Defendant should have restricted inmate movement or routed them off the alleged icy walkways to areas where ambulation might be safer. There is no dispute that by facility regulation inmates were subject to disciplinary charges if they were to leave the walkways.

There is undisputed testimony that over a period of time prior to the accident 27± inches of snow and ice had fallen and/or accumulated on the open, exposed and untreated areas at Wyoming. In addition, the record establishes that on February 2, 2004, the high temperature was 37° and the low was 1°; and on February 3 the high temperature was 37° and the low was 26°, and there was mixed precipitation in the form of sleet and/or snow. Claimant’s expert meteorologist, Howard Altschule, opined that this would result in a glaze forming on the surface of the ground. On February 4 he noted a trace of precipitation with temperatures ranging from a high of 34° to a low of 22° with 19 inches of accumulated snow and ice. The temperature on February 5 dipped to a high of 32° and a low of 9° with no precipitation; on February 6 from midnight on there was light snow followed by light sleet and snow until 5:15 a.m., with drizzle throughout the day, when the temperature rose from 26° to 41°. Mr. Altschule stated the temperature fell below freezing at 11:30 p.m. that evening and opined that it then began to refreeze as ice.

On February 7 the same storm system was still over the Attica area (where Wyoming is located) and there was some freezing drizzle/rain during the early morning hours continuing to 5:45 a.m., and the temperature remained below freezing. In Mr. Altschule’s opinion, this resulted in ice forming on all exposed, untreated and undisturbed areas. Occasional light snow then fell during that day until 10:48 p.m. according to the Doppler images he reviewed (Exhibit 27).

On February 8, the date of the accident, there was no measurable precipitation, but the temperature was below freezing and in his opinion there were 18 inches of snow and ice on the exposed, untreated and undisturbed areas at Wyoming (Transcript - pp. 281-286). It was his professional opinion that during this time, with rising and falling temperatures, ice formed on exposed surfaces and was covered by the snow, and the area where Claimant fell was a location where ice would form on the surface of the sidewalk.

The Defendant’s “storm in progress” defense serves as both a sword and a shield. If the weather was severe enough to constitute a storm, was the Defendant given enough time to plow, shovel and salt the area traversed by Claimant? Conversely, if there was in fact a storm in progress and the Defendant did not have sufficient time to plow, shovel and salt the areas affected, should not the Defendant have restricted movement of the inmates, over whom it has complete custody and control, and kept them from leaving the dorms and using the walkways? The Defendant cannot have it both ways.

On the record before me here, I find that there was no storm in progress on February 8 and that any snow observed by the Claimant as he walked to morning mess was due to an extremely cold and strong wind which was whipping whatever light snow there was in the air, as well as accumulated snow on the ground.

I reject Claimant’s assertion that the fire hydrant in the area of his accident had been leaking water which in turn found its way to the walkway where it froze. While Claimant testified that he had observed such a leak, the inspection records do not support his testimony. I find the testimony of CO Parmerter, a Fire and Safety Officer at Wyoming, as supported by the maintenance records pertaining to hydrants at the facility in general, and hydrant #17 in particular, to be persuasive on this issue.

While there was extensive testimony elicited pertaining to the construction of a drainage system in the area where this accident occurred, there is no claim before me asserting defective design as the proximate cause of the accident. Instead, I accepted this testimony solely as it pertains to the issue of Defendant’s alleged failure to properly maintain the grounds in a reasonably safe condition for persons using the walkways in this area and the Defendant’s actual or constructive notice of a preexisting dangerous condition on the walkway.

When the State acts in a proprietary capacity as a landowner, it has a duty to maintain its land in a reasonably safe condition (see Preston v State of New York, 59 NY2d 997; Basso v Miller, 40 NY2d 233). That duty extends to those in the State’s institutions, but while it must take every reasonable precaution to protect those individuals, the State is not an insurer against any injury which might occur (Killeen v State of New York, 66 NY2d 850).

The fact that an accident occurs does not establish negligence and, for liability to attach, a claimant must prove that the State breached its duty of care to the Claimant (Mochen v State of New York, 57 AD2d 719). The standard of care must be applied with appreciation of the problems caused by winter weather and, for liability to be found, there must be evidence that the presence of snow or ice created a dangerous condition which the State knew or should have known existed (Marcellus v Littauer Hosp. Assn., 145 AD2d 680). Further, as this Court has noted: is virtually impossible to clear all snow and ice from areas... in northern portions of New York in the wintertime. The fact that an inmate falls on correctional facility premises does not render the State liable if the conditions existing at the time of the accident were not so unusual, dangerous or different from the conditions ordinarily prevailing during the winter months in the locality (Cordero v State of New York, Ct Cl, June 21, 1993, Bell, J., at 6, citing Schwabl v St. Augustine’s Church, 288 NY 554; Williams v City of New York, 214 NY 259; Van Slyke v New York Cent. R.R. Co., 21 AD2d 147; Hallock v Ballachey, 258 App Div 774, affd 284 NY 648; Condon v State of New York, Ct Cl, Jan. 10, 1992, E. Margolis, J., affd 193 AD2d 874; 1 NY PJI 2d 2:111A; Annotation, Liability for Injuries in Connection with Ice or Snow on Nonresidential Premises, 95 ALR3d 15).

(Crabtree v State of New York, Claim No. 85882, Ct Cl, March 11, 1994, Bell, J.)

The burden of proof rests with Claimant to establish that the State either created the condition or had constructive or actual notice of it, and failed to take reasonable steps to eliminate the condition (Miller v City of Syracuse, 258 AD2d 947, 947-948). In this case Claimant stated that the weather on that day was bitterly cold with a significant wind whipping snow around as he proceeded to the morning meal. He did not testify that the walkway between the Activity Building and the Mess Hall presented any significant ambulation problems to the inmates as they proceeded to breakfast. It was on the return trip approximately 20 to 25 minutes later that he observed others slip on portions of the walkway before he fell and suffered his injury. He identified on Exhibit A the area where ice was located and where he observed others slip. He argues that there were several conditions existent that created a hazardous and slippery walkway. He urges me to find that, since there is an absence of proof that the French Drain as well as the catch basin were properly functioning, I must find that they were defective on the day of the accident. That argument is rejected completely since he has failed to offer any proof that they were defective on the date of the accident or on the days immediately preceding Claimant’s fall. Nor can I draw any inference from the proof before me that the drainage system as designed was not functioning properly at any time prior to the accident.

Claimant urges me to reconsider my denial of his motion made at trial to draw an adverse inference from the Defendant’s failure to produce a log of inmate injuries which was maintained by the facility. I initially denied the request on the basis that no pretrial demand had been made for the production of such a log by Claimant. The day after my ruling Claimant’s counsel referred me to paragraphs 17 through 23 of his notice to produce and demand for discovery and inspection, copies of which were part of the Court’s file. In each of the cited paragraphs Claimant’s demands were directed to “repairs” made by Defendant to the area where the accident occurred, and I am unable to find a specific demand for the log of inmate injury in his pretrial demands. I again deny his motion.

With respect to constructive notice, that would usually require proof that the icy condition was visible and that it existed for a sufficient period of time to permit Defendant to discover the condition and remedy it (Miller v City of Syracuse, 258 AD2d 947, 947-948). These principles are to be applied with an appreciation of the problems caused by winter weather (Pappo v State of New York, 233 AD2d 379). Mere failure to remove all snow and ice from walkways does not constitute negligence (Rector v City of New York, 259 AD2d 319, 320), unless a claimant has shown that the hazard was increased by what was done in attempting to remove the snow (Reidy v EZE Equip. Co., 234 AD2d 593, 594). In addition, after the cessation of the weather event, be it a storm or weather fluctuation which created the hazardous condition, a landowner must be afforded a reasonable period of time within which to take action to remedy the alleged dangerous condition (see Downes v Equitable Life Assur. Socy. of U.S., 209 AD2d 769).

In this case the evidence did not establish that the Defendant created the icy condition through its snow removal operations or other activities, nor was there any proof that Defendant knew about the existence of the icy condition prior to Claimant’s fall. Indeed, there is proof in this record that there had not been any prior accidents on this walkway and that on the day in question the snowfall amount was light. Were I to accept as fact Claimant’s assertion that the snow was up to the top of his boots, the ice would have been covered and thus constructive notice would not have existed since the alleged ice would have been covered. Claimant even stated that he did not see it prior to his fall. Thus, by his own testimony, I am compelled to find that Claimant has failed to prove the Defendant had constructive notice of the alleged dangerous icy condition, nor is there any proof that this was a recurring condition of which the Defendant had knowledge.

I am not unmindful of the serious injury Mr. Correa suffered as a consequence of his fall, but I am compelled to set aside sympathy in weighing all the facts and apply the law in each claim which is tried before me. Further, I would be remiss in not acknowledging the thorough and well prepared presentation by both counsel in this case. They are experienced advocates who have demonstrated a high degree of professionalism and competence, and their clients were ably represented.

Accordingly, based upon the above, the claim must be and hereby is dismissed. All motions not previously ruled upon are now denied.


October 23, 2009
Rochester, New York
Judge of the Court of Claims

  1. [1]Claimant’s expert explained that the temperature scale on Exhibit Q reports temperatures over the 24-hour period starting at 7:00 a.m. on February 7 and ending at 7:00 a.m. on February 8 (Transcript - p. 279).
  2. [2]Wyoming is divided into East and West Compound areas, with the separation point being designated as “gate control” (Exhibit U).
  3. [3]He identified the center line of the swale on Exhibits K and K-1 as a series of blue arrows with dashes between them.