|Claimant short name:||HAYNES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||PHILIP J. PATTI|
|Claimant's attorney:||JASON S. DiPONZIO, PC|
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 16, 2009|
|See also (multicaptioned case)|
On March 6, 2002, Deborah Haynes was a full-time student at the State University of New York at Brockport (SUNY Brockport). As she was leaving her first class of that day and en route to her second class, she slipped on a sidewalk, fell and fractured her left ankle. The accident occurred at approximately 9:20 a.m. on Kenyon Street, on the route she normally took to get from Hartwell Hall, the location of her first class, to the Cooper Building where her next class was to be held. As she walked along Kenyon Street, she approached an area of the sidewalk adjacent to Rakov Hall where she suddenly slipped and fell. This timely filed claim arose as a result of the fall and injury. The trial was bifurcated and this decision is limited solely to issues of liability.
Claimant testified that after the fall, she noticed that the area where she fell was wet with snow and ice. She remained on the ground for what she estimated was five minutes, until she was assisted to Rakov Hall, where she waited until 9:30 a.m. when now retired SUNY Brockport Lt. James Scott arrived. He assessed Claimant's condition and called for an ambulance to take her to the hospital for medical care.
Lt. Scott confirmed that the sidewalk had a slight covering of snow which had fallen that morning and he described the weather that day as snowy. He also filed an incident report (Exhibit 1) which was culled in part from the statement of Claimant, who apparently told him that she had slipped on the snow on the sidewalk.
The expert meteorologists for the respective parties agreed that snow had fallen starting in the early morning hours that day. The State's expert, Kevin Williams, opined that 2" to 4" of snow had accumulated up to the time of the accident and characterized this event as a "storm in progress." Claimant's expert, Michael Cejka, agreed that it was a weather event, but did not agree that it constituted a "storm in progress."
Based upon the evidence presented, while perhaps the conditions could be labeled a weather event, it most certainly did not, in my opinion, equate to an event which would cause me to invoke or give credence to the storm in progress doctrine as urged by the State. According to Mr. Williams, in a span of 9± hours, only 2" to 4" of snow fell, not a significant amount in the environs of this area of New York State. As a consequence, the State's invocation of this exculpatory doctrine for the claim at bar is rejected.
I am not unaware of the cases which hold that, even if blizzard conditions do not exist, the storm in progress doctrine would apply in conditions which are less severe. Of course, regardless of the severity of a weather event, a property owner must be given a reasonable amount of time to remove the snow after the storm has ceased (see Camacho v Garcia, 273 AD2d 835).
Rejection of a storm in progress defense, however, does not lessen the Claimant's burden of establishing by a fair preponderance of the credible evidence that the State either created a dangerous condition or had actual or constructive notice that a dangerous condition existed (see Malossi v State of New York, 255 AD2d 807). In the instant claim Claimant points to guidelines to be followed by SUNY Brockport regarding those situations when a snow emergency is presumed to exist (Exhibit 9). Under these guidelines a weather emergency exists when: (1) two or more inches of wet snow has fallen or is forecast before the beginning of a regular workday; or (2) three or more inches of light snow has fallen or is forecast before the beginning of a regular workday; or (3) sleet or iced-over conditions exist. While these guidelines (Exhibit 9) were last updated in August 2002, at trial, Mark Hillman, SUNY Brockport staff assistant in charge of Automotive and Grounds, stated that the guidelines were the same as those in effect in March 2002 (Testimony at 10:53).(1)
Mr. Hillman testified that snow removal from designated areas have a priority listing (Exhibit 9, p. 3), and that several of the areas could be attended to at the same time by the allocation of work crews. He explained that if there is a warning of a snow event or the campus police deem it a necessity to have the roads and parking areas attended to before the beginning of the school day, and if they contact him giving prior notice to attend to cleaning these areas on campus, he can schedule a crew to come in early. He went on to state that according to the timecard records he was shown for March 6, 2002, there was no weather-related emergency noted for that day and no employee was called in early.(2) He described the method of removing snow from the sidewalks, which included equipment set up specifically for sidewalk snow removal such as rubber-edged plows attached to a "Bobcat"-type machine to avoid damaging the sidewalks or the plows. Another small vehicle would have a spreader attached to it and it would be loaded with chemical "ice melt" which would be spread on the sidewalk. If the conditions or certain areas warranted further attention, an additional cover of "ice melt" would be mechanically dispersed.
Mr. Hillman testified that crews are out all during the day observing the conditions and attending to areas which require service and on weekends they respond when SUNY Brockport Campus Police determine that there is a need for crews to clean off the roads and sidewalks. He reiterated that the guidelines set forth in Exhibit 9 are merely guidelines and recalled that, on occasion, ground crews have been called in when there were lesser amounts of snow than set forth in that document.
James Scott, employed by the SUNY Brockport Campus Police as a Lieutenant on the day of the accident, testified that he was notified of the accident and proceeded to Rakov Hall (Rakov) where Claimant had been taken. In his capacity as shift supervisor on that day, he was on patrol when he received a call to proceed to Rakov to investigate the accident. He recalled that it had been snowing for approximately half an hour that morning. After arriving at Rakov and parking his car, he proceeded to where Claimant was sitting and at some point, took a narrative report from her regarding her fall. He identified Exhibit 1 as the report that he filed in relation to this accident. He testified that as he walked on the sidewalk to gain entrance to Rakov there was only a slight coating of snow on the sidewalk and that he could not recall there being ice. He also noted that the college snow crews were out and working on the sidewalks. He went on to confirm that he included in the report that which he had been told by Claimant, including the statement that she had slipped on the snow covering the sidewalk.
It is Claimant's theory that she slipped on ice that was created during the period from March 1, 2002 to March 3, 2002. Her meteorological expert opined that, according to the weather data contained in Exhibit 12, on March 1 at 7:00 a.m. there were 2" of snow on the ground and the high temperature for that day was 36. He noted that on the following two days, March 2 and March 3, the high temperatures were 51 and 54 respectively, while the low temperatures for those three days ranged from 22 to 24. The records also reveal that the accumulation of precipitation was about 1/100" for March 2 and 8/100" for March 3, leading him to conclude that the snow melted during March 1 and the runoff froze during the night. On March 2, the weather was reported as rain, mist and haze during the day and on March 3 there was rain, mist, snow and blowing snow. It was Mr. Cejka's expert opinion that it was this weather pattern of above freezing temperatures during the day and temperatures in the 20's at night that caused ice to form and remain on the sidewalks, including the one that Claimant was traversing when she fell and was injured.
The State's expert meteorologist opined that while snow had melted between March 1 and March 2 and that the precipitation which fell on March 2 and March 3 was in the form of rain, mist and wet snow, it was so slight (measured in hundredths of an inch) that it would not have remained on the sidewalk to form ice. In fact, the drop in temperature which occurred on March 3 was later in the day, after the rain had ceased. Mr. Williams was of the further opinion that on the day of the accident, with the temperature in the upper 20s, a wetter snow would have fallen, causing wet and slippery travel conditions, but not necessarily an icy situation. Moreover, he pointed out that the heaviest snowfall occurred just before the accident.
I accept the State's expert opinion that the wet condition created by snow melting over the period of March 2 and 3 due to the sustained period of above freezing temperatures was not present on the sidewalk where Claimant fell on March 6 and therefore was not the proximate cause of the injuries she sustained. Furthermore, Claimant's testimony established that she had used this same sidewalk on March 4 without incident, which refutes her own expert's testimony that water from the snow melt and precipitation on March 2 and 3 remained on the sidewalk over the course of those days and into the morning of March 6 when she slipped and fell.
Based on this record, I find that Claimant fell on the sidewalk as a consequence of the wet snow which fell in the predawn and early morning hours of March 6, and not on ice.
This leads me to the question of whether the State breached its duty of care by failing to remove wet snow or treat the sidewalk so that the public would be able to traverse it safely. It is well settled that while the State is under a duty to take every reasonable precaution under the circumstances then prevailing to protect those who use its facilities (Basso v Miller, 40 NY2d 233; Killeen v State of New York, 66 NY2d 850; and Condon v State of New York, 193 AD2d 874), it is not an insurer of the safety of its property, and negligence cannot be inferred solely from the happening of an accident (Matter of Boettcher v State of New York, 256 AD2d 882). As noted above, the weather on the day of the accident consisted of a blanket of wet snow which had been of sufficient intensity to cover the roadways and sidewalks, requiring work crews to attend to its removal.
While Claimant places great weight on the guidelines in Exhibit 9 as a basis of liability, they are merely guidelines, not mandates and involved a significant amount of discretion regarding the existence of a snow emergency. Mr. Hillman outlined the procedure followed for the removal of snow from the sidewalks, the roadways and the parking lots. Generally, if a weather event had been forecast, a work crew could be notified beforehand to specifically report to the campus early to handle such an event.(3) Additionally, the SUNY Brockport Campus Police who patrolled the area could request that a grounds crew be contacted to attend to the grounds. In this case the records do not establish that any employees of the Automotive and Grounds Department had been called in early on March 6, and no weather or snow emergency had been called in by the Campus Police. There was no notice, actual or constructive, of a dangerous condition, and thus no breach of a duty of care.
I find that the grounds crews had arrived on campus at their regular starting times and began to attend to the clearing of the campus in anticipation of the arrival of faculty, other employees and students. Lt. Scott observed these crews working at various locations on campus and more particularly in the area of the accident as he proceeded to Rakov Hall.
I wish to emphasize that, while I did consider Claimant's report to Lt. Scott that she had slipped on snow, I am cognizant that she was a student at the time, had just been injured and was not attempting to memorialize for the sake of litigation whether the cause was snow or ice, or a combination of both. Nonetheless, it does reflect her contemporaneous articulation of the cause at the time of the accident, and that has been taken into account.
Based upon the above, and after due consideration, I find that Claimant has failed to establish by a preponderance of the credible evidence that the Defendant State of New York breached its duty of care relating to the unfortunate slip and fall that Claimant experienced on March 6, 2002. Accordingly, the claim must be and hereby is dismissed.
All motions not heretofore ruled upon are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
December 16, 2009
Rochester, New York
PHILIP J. PATTI
Judge of the Court of Claims
1. Reference is to the time location on the digital audio recording of the trial.
2. He had no independent recollection of March 6, 2002, and his description regarding snow removal was based on the normal routine for the removal of snow.
3. Mr. Hillman testified that the employees under his supervision worked from 6:00 a.m. to 2:30 p.m. on normal working days.