New York State Court of Claims

New York State Court of Claims

SIMMONS v. THE STATE OF NEW YORK, #2009-029-006, Claim No. 112688


State liable for slip–and-fall accident on black ice at correctional facility. Evidence showed there was sufficient time to sand and salt walkways, and policy of not letting inmates out until such work was done was apparently violated. Claimant also liable for comparative fault.

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:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 20, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at Bedford Hills Correctional Facility, seeks damages for a January 4, 2006 incident in which she slipped and fell on ice on a walkway at the facility. She alleges in her claim that the facility failed to salt the walkway.

Claimant testified she was in her cell on the morning in question when the officer in charge “called movement” [1] and she proceeded to her medical appointment. At about 8:05 a.m., she fell on “black ice” on the walkway leading to the medical unit. An officer came to her aid, placed her in a wheelchair and she was taken inside the medical unit. She was then taken to Mount Vernon Hospital where x-rays showed no broken bones. The Inmate Injury Report (Exhibit 1) states she was complaining of pain to her right knee, ankle and hand, that there was no swelling or ecchymosis of the ankle but possible swelling and possible decreased range of motion of the knee. She had an “avulsion flap” on her right palm. Ice was applied to the knee and the palm was cleansed with hydrogen peroxide and a dressing was applied. Claimant stated she stayed in the medical unit overnight and was given Motrin for pain.

Claimant testified she still has problems with her knee, that she has a scar on her right hand and that her right side still bothers her. She also stated that she had surgery on her shoulder at some unspecified time. There was no evidence connecting her shoulder surgery to this incident, and no medical records were submitted other than Exhibit 1, which only related to treatment received the day of the injury.

On cross-examination, claimant stated that it was snowing at the time of the incident. She also stated she did not notice the ice on the path and that she was “not paying attention to the sidewalk,” she was just walking.

Defendant called Sgt. Mark Hayo, plant supervisor at Bedford Hills. He stated that it was the watch commander’s responsibility to call out the inmate grounds crew when the facility’s walkways needed salting and that there are barrels of salt placed around the grounds for this purpose. The walkway where claimant fell is concrete, about four feet wide, on a flat grade and leads to the entrance of the medical building. He noted that the medical staff that came to work that day between 7 and 8 a.m. all used that walkway.

Defendant produced a Report on Hourly Weather Conditions at Bedford Hills Correctional Facility, prepared by a firm known as Weather Surveys (Exhibit A). The report, which covers January 3 and 4, 2006, states that there was precipitation consisting of either snow or a rain/snow mix from 1 a.m. through 9 p.m. on January 3. There was no precipitation from 10 p.m. January 3 through all of January 4. The temperature was 32 degrees at 10 p.m. on January 3, but fell to 28 degrees by 1 a.m. on January 4 and remained in the 20s through 8 a.m., when it was 24 degrees.

Sgt. Hayo testified that “after the snow ended, the inmates would have sanded and salted all walkways.”

Claimant introduced a Memorandum from Sgt. Rice relating that at about 8:05 a.m., claimant and another inmate slipped on black ice on the walkway outside the medical unit, that both inmates were given medical attention and that an officer “spread rock salt on the black ice and the powerhouse was notified that the area had to be sanded” (Exhibit 2). Attached to that Memorandum was a second Memorandum, from C.O. Lutz to Sgt. Rice stating that he witnessed inmate Simmons fall on the walkway at about 8:05 a.m. Neither Sgt. Rice nor C.O. Lutz was called to testify.

Claimant filed a facility grievance alleging that the walkway had not been salted and requesting monetary compensation. Her grievance was granted in part, with the grievance committee finding “[n]o movement should be allowed until all walkways and roads are deemed safe including but not limited to putting down salt to prevent injuries” (Exhibit 4). The request for compensation was denied because the grievance committee lacks jurisdiction to provide such a remedy.

The court notes that although the answer alleges that the claim was untimely because it was served more than 90 days after accrual (and the claim was in fact filed more than 90 days after accrual), the claim asserts that claimant forwarded a notice of intention to file a claim to the facility mailroom on March 10, 2006 (about three weeks prior to the expiration of the statutory 90-day period) to be served on defendant by certified mail, return receipt requested. Defendant did not mention this issue at trial leading the court to conclude that defendant received the notice of intention in a timely fashion and that the claim is properly before the court.

At the conclusion of trial, defendant moved to dismiss the claim, citing Murphy v 136 Northern Blvd. Assoc. (304 AD2d 540 [2d Dept 2003]) and Marrero v State of New York (Ct Cl, Marin, J., UID No. 2005-016-031, Apr. 8, 2005). Murphy stands for the familiar propositions that a landowner is not liable for an alleged hazardous condition unless it had actual or constructive notice of the condition and that constructive notice generally requires proof that the hazardous condition was visible and apparent and had existed for a sufficient length of time for the landowner to discover and remedy it. In Marrero, Judge Marin dismissed a “black ice” slip and fall claim after trial, noting that there was proof that defendant had taken “reasonable care to clear ice and snow from the walkways, sidewalks and handicapped ramps” and also observing that claimant’s proof was “inconsistent” and “imprecise” as to the location of his fall.

Neither of these cases involved an inmate in a correctional facility. As my colleague Judge Patti observed in denying defendant’s summary judgment in such a case when an inmate’s “movements are under the total and complete control of the Defendant”, the issue of whether the inmate should have been precluded from traversing an icy, hazardous area until the condition could be addressed is raised (DeGregorio v State of New York, 13 Misc 3d 1090, 1093 [Ct Cl 2006]). In his subsequent trial decision finding liability, Judge Patti noted that the “storm in progress theory” (shorthand for the principle that a landowner must be allowed sufficient time to address an icy condition after the storm has ended) works as both a “sword and a shield” for the defendant in cases involving incarcerated inmates: “if the storm was in progress and an insufficient period of time to plow and salt the walkways was allotted, should the Defendant, which has complete custody and control over the movement of inmates under the authority of its Department of Correctional Services (DOCS), have restricted inmates from walking on as yet untreated walkways?” (DeGregorio v State of New York, Ct Cl, UID No. 2008-013-510, Oct. 20, 2008, Patti, J.).

Here, the weather report submitted by defendant establishes that the “storm in progress” theory is inapplicable (compare Park v Caesar Chemists, Inc., 245 AD2d 425 [2d Dept 1997]). It had stopped snowing about 11 hours before claimant’s fall (Exhibit A). The testimony of Sgt. Hayo established that it was the policy at the facility to sand and salt all walkways when the snow stops falling, and the documentary evidence indicates that it was also facility policy that inmate movement was not allowed until the walkways were treated and that the walkway at issue herein had not been salted or sanded prior to claimant’s fall. Such facts are sufficient for a finding of liability.

Nevertheless, claimant must share some of the responsibility for her fall. She testified that she was not paying attention to the sidewalk as she walked on it and, given that she was walking in the early morning hours after a winter storm had ended the evening before, the court finds that she failed to exercise due care for her safety and that her culpable conduct was equal to that of the defendant.

Proof of damages was limited to bruises and the avulsion flap to her palm. No medical evidence was submitted in support of the other injuries testified to by claimant. The court finds that claimant established damages in the sum of $1,000.00. Accordingly, reducing said sum by 50% for claimant’s comparable fault, claimant is entitled to recover the sum of $500.00, together with any filing fee actually paid. The Clerk of the Court is directed to enter judgment for said amount.

February 20, 2009
White Plains, New York

Judge of the Court of Claims

[1].Unless otherwise indicated, all quotations are from the court’s trial notes.