New York State Court of Claims

New York State Court of Claims

ARNOLD v. CITY UNIVERSITY OF NEW YORK, #2009-030-027, Claim No. 114373


Synopsis


50% liability found after trial of slip-and-fall on icy sidewalk. Potentially conflicting provisions of NYC Administrative Code noted

Case Information

UID:
2009-030-027
Claimant(s):
HELEN ARNOLD
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
ARNOLD
Footnote (claimant name) :

Defendant(s):
CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114373
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
LIPSIG, SHAPEY, MANUS & MOVERMAN, P.C.BY: GUS P. FOTOPOULOS, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JOHN M. HUNTER, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
October 21, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Helen Arnold alleges in her claim that on March 17, 2007 the City University of New York [CUNY] failed to adequately remove and clear snow and ice on the sidewalk on the eastern side of Amsterdam Avenue near 135th Street causing her to slip, fall and suffer injury. Trial on the issue of liability was held on June 10, 2009. This decision relates to liability alone.


Claimant testified that she was heading to the CUNY campus on March 17, 2007 to attend a biology class. She recalled that it had snowed the night before and that it was cold that morning. Getting off the bus at the bus stop near the corner of Amsterdam Avenue and 135th Street, she said she could see that the sidewalk along Amsterdam Avenue had been largely cleared of snow, but there was a snowbank which ran along the curb side of the sidewalk. To get to the sidewalk, she had to step over the bank of snow. She described this area as a “mound of snow, like maybe it had been plowed, so like pushed to the side.” [T-14].[2] She did not see any ice.

As she walked on the sidewalk a few steps along Amsterdam Avenue toward 135th Street, between 9:25 a.m. and 9:30 a.m. she slipped and fell on ice. After falling, she saw that she was lying on a sheet of ice, and observed that it extended from the side of the North Academic Center [NAC] building “the length of [her] body to the end where [her] feet were.” [T-24]. She estimated that the location was approximately 40 to 50 feet from the corner of 135th Street. No sand, salt or other substance was on the ice.

Ms. Arnold said that she called over a man who had been working under the hood of his car for help. When the ambulance and a fire truck arrived thereafter, she was asked questions, and then they took her knapsack off and placed her on a stretcher. She said “they had difficulty trying to get me to the ambulance . . . I noticed one of the attendants had slipped . . . [on] [t]he ice” although he did not fall. [T-25]. Claimant marked where she alighted from the bus, and where she fell, on two sets of photographs. [Exhibits 1 and 2].

On cross-examination Ms. Arnold confirmed that this was a familiar route, and that the area of the sidewalk on which she fell had an underlying brick surface. She repeated that after stepping over the bank of snow onto the sidewalk, the sidewalk area itself appeared clear of snow, as did the roadway, and she did not see any ice until after she fell. She admitted she was looking straight ahead as she stepped over the mound of snow, and that after stepping over it, she turned to her right and took a few steps, still without looking down to see where she was walking.

George Varian, a 36-year employee of City College working as the Supervisor of Mechanics in March 2007, testified about his snow and ice removal duties. His job included the supervision of and participation in snow and ice removal from the City College campus, and along the sidewalk of Amsterdam Avenue abutting the campus between 135th Street to the south, and 140th Street to the north. Mr. Varian confirmed that he has been removing snow and ice on the campus and on the sidewalk area of claimant’s fall as part of his building maintenance and renovation and grounds maintenance responsibilities for 19 years.

The priorities for snow removal, he said, are the entrances to the campus and the buildings, two of which are on Amsterdam Avenue. The area by the NAC building is “primary” because it has a “huge opening” and then the dormitory areas down on 130th Street as well “because of the student traffic.” [T-59-60]. For snow removal, he said he supervises 12 to 13 people. More generally, he supervises 40 people. Two plow trucks traverse the area to be plowed starting from opposite ends, each taking approximately 20 to 25 minutes to make the complete route. Other workers shovel and spread salt on the staircases and narrow walkways where the trucks cannot reach.

It is the practice for the workers spreading salt to start a layer even before it snows, as a “preemptive strike.” Sand was never used, only salt. He indicated that there are “approximately four miles of sidewalk” at that City College location. [T-60].

Mr. Varian recalled reporting for work at 2:00 a.m. on March 16, 2007 in anticipation of a snowfall. It had not yet started snowing. By 3:30 a.m., after it had been snowing for a half hour, they went out to remove snow. Mr. Varian said that he “drove a truck with a snowplow and salt spreader on it” as part of his role in snow removal operations. [T-33]. He recalled that twelve (12) people, including himself, were engaged in snow removal. He said that although salt was spread, they “never” used sand. [T-34]. “Two trucks with plows and one tractor with a plow” were used. [Ibid.]. They also performed snow removal on the sidewalk areas. He said he was also responsible for personal inspection of the areas. He recalled that between “five and a half to six inches” accumulated overall. After plowing the sidewalk along Amsterdam Avenue and 138th Street, the area was checked for “any snow or snow that melted and refroze” as well as ice.[T-36]. The snow stopped by the mid-afternoon.

On March 17, 2007 - remembered well because it was St. Patrick’s Day - there had been “icy precipitation” starting at “approximately two o’clock in the morning.” [T-33]. It lasted 2½ hours. They were unable to plow the area because the plow would not “push anything.” [T-37]. The area was, however, salted, he claimed, every 20 to 25 minutes, including the sidewalks. He said that he found ice “about 200 feet north or 300 feet north of 135th Street” at the staircase by the main entrance to the campus between 5:00 and 6:00 a.m. on March 17, 2007. [T-41]. He got out of the truck, walked up the stairs, came back down, and called for people to come over to salt the steps. Thereafter, he “walked down the hill to the corner of 135th.” [Ibid.]. There was no ice on the sidewalk along Amsterdam Avenue as he walked. Had there been ice, he said, he would have “spread salt”, which is the “typical procedure.” [T-43-44]. No warning markers were normally put out, nor was anyone stationed there to make sure no one came up on the ice in the area where he had seen it.

Mr. Varian said he finished work at 3:30 p.m. on March 17. Other members of the crew had left at noon, still others left at about 1:30 p.m. He estimated that he traversed the pertinent sidewalk area “three times, maybe four” after his 5:00 to 6:00 a.m. walk, apparently in the plow truck although his testimony was initially unclear on the point. [T-45]. Additionally, either the truck he drove, or the “other truck”, “[made] the pass” every “hour and a half to two hours.” [T-46]. The last time he looked at the sidewalk area was “probably about 11:30 in the morning, twelve o’clock, somewhere in that vicinity.”[Ibid.].

Mr. Varian learned about two and a half months after the accident that claimant had fallen at about 9:30 a.m. on March 17, 2007. He thought that he had been on that sidewalk area at least twice between 5:00 a.m. and the time of Ms. Arnold’s accident, indicating that the second time was “around 7:30, eight” and that he was in the truck - not on foot - when he was in the area this second time. [T-49]. He also explained that when they plowed the sidewalk, they “do an eight [-] to nine [-foot] span from the building,” potentially leaving a row or a mound of snow or ice along the curb. [T-50]. The plow blade itself did not touch the sidewalk. Mr. Varian estimated that the temperature ran “in the mid to upper 20’s . . . below freezing” between March 16 and March 17, 2007. [T-52]. The freezing rain lasted from 2:00 a.m. until approximately 4:30 to 5:00 a.m., based on Mr. Varian’s testimony that it was of some 2½ hour duration. Since no ice was seen when Mr. Varian made his on-foot inspection at 5:00 a.m. in the sidewalk area of Ms. Arnold’s fall, no salt was applied, nor was salt applied at the second inspection because no ice was observed from the truck in the plowed, eight-foot-wide path.

Mr. Varian said that a curb cut at the corner of Amsterdam Avenue and 135th Street was cleared of snow and ice on March 17, 2007, something he knew because he did the clearing “personally. My other truck does too, but I know I did that personally on the 16th and 17th. That’s my normal routine. That’s how I get off the sidewalk. Then I come back on to the sidewalk” (presumably with the plow truck). [T-63].

As noted, Ms. Arnold had marked two sets of photographs, clearly taken when the area did not contain any snow or ice, to show where she alighted from the bus, and the general location of her fall. [See Exhibits 1 and 2]. The portion of the sidewalk indicated was within the eight-foot-wide swath Mr. Varian testified was plowed.

Kevin Stringfield, employed as an emergency medical technician for 20 years by the New York City Fire Department, testified concerning his training and his response to the accident scene on March 17, 2007. When he responded to the scene at approximately 9:40 a.m., he observed that “[t]here was a lot of ice on the scene when we got out of the vehicle. I almost slipped. It was a large sheet of ice. It was a very large sheet of ice . . . right at the curb at the entrance to . . . City College.” [T-77]. In the area “[t]here was no place really where you could walk and avoid it.” [T-79]. Ms. Arnold was placed on a stretcher and put in the back of the ambulance. He could not recall if the fire department was there. [T-80].

The witness marked the top photograph of Exhibit 2, to show the approximate area where claimant was found. As recorded in the report he completed at the hospital shortly after the incident, he saw a “giant sheet of thick melting ice” in the area where claimant was found recumbent. [Exhibit 3].

DISCUSSION AND CONCLUSION
The general rule involving proposed liability in a slip-and-fall case on snow or ice is that an “owner or lessee of property abutting a public sidewalk is under no duty to remove ice and snow that naturally accumulates upon the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so.” Bruzzo v County of Nassau, 50 AD3d 720, 721 (2d Dept 2008). A corollary rule provides that “[i]n the absence of a statute or ordinance, an owner or lessee of property abutting a public sidewalk may be held liable where it ‘undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous’ (Bruzzo v County of Nassau, 50 AD3d at 721 . . . (citations omitted).Robles v City of New York, 56 AD3d 647 (2d Dept 2008). Notably, no ordinance imposed such liability in New York City until the addition of New York City Administrative Code §7-210 effective September 14, 2003, whereby abutting landowners - unless excepted[3] - could be held liable in tort for failure to maintain a sidewalk in reasonably safe condition, including snow and ice removal, rather than the City of New York. Klotz v City of New York, 9 AD3d 392 (2d Dept 2004); see Vucetovic v Epsom Downs, Inc.,10 NY3d 517, 519-520 (2008). Indeed,
“At common law, prior to enactment of § 7-210, the City, and not the abutting landowner, was liable for injuries sustained by a pedestrian as a result of defects in the sidewalk, unless the owner created the defective condition or caused it through some special use. In addition, while the statutory scheme prior to enactment of § 7-210 required an abutting landowner to . . . remove snow, ice, dirt or other material from the sidewalk (§ 16-123[a] ), the failure to abide by these provisions would expose the landowner to fines or require the landowner to reimburse the City for its expense in performing these acts (Hausser v. Giunta, 88 N.Y.2d 449, 452-453, 646 N.Y.S.2d 490, 669 N.E.2d 470 [1996] ), but would not expose the landowner to tort liability (Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517 [supra] at 520 . . . (citations omitted).” Ortiz v City of New York, ___ AD3d ___, 884 NYS2d 417 (1st Dept 2009).


Now, New York City Administrative Code §7-210 provides in pertinent part:

“a. It shall be the duty of the owner of real property abutting any sidewalk . . .

to maintain such sidewalk in a reasonably safe condition.

b. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk . . . shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, . . . the negligent failure to remove snow, ice, dirt or other material from the sidewalk . . .

c. Notwithstanding any other provision of law, the city shall not be liable for any injury to property or personal injury, including death, proximately caused by the failure to maintain sidewalks . . . in a reasonably safe condition.”


The language of § 7-210 mirrors the duties of property owners with regard to sidewalks as set forth in New York City Administrative Code §16-123 (a). Pursuant to New York City Administrative Code § 16-123 (a), however, building owners have four hours after a snowfall stops to remove snow and ice from abutting sidewalks, excluding the hours between 9:00 p.m. and 7:00 a.m. This code provision is concerned with the role of the New York City Sanitation Department vis-
à
-vis owners, and is part of the scheme whereby an owner may be fined for failure to perform should the City have to step in.

In their respective trial memoranda, counsel for claimant makes no mention of New York City Administrative Code §16-123, nor, curiously, does counsel for defendant mention New York City Administrative Code §7-210.

In this case, Mr. Varian’s uncontradicted testimony was that the freezing rain that began at approximately 2:00 a.m. on the morning of March 17, 2007 ended at approximately 4:30 a.m., thus beginning and ending within the allegedly excluded period under §16-123(a). Defendant argues that as an owner, CUNY’s four hours to remove the ice from the sidewalk began at 7:00 a.m. No duty had yet arisen, it is averred, when claimant fell at approximately 9:25 to 9:30 a.m., in that CUNY had no duty to remove ice and snow until the interesting hour of 11:00 a.m. This window would appear to be an extension of the general storm-in-progress rule, whereby those responsible cannot be held liable for a fall caused by snow or ice conditions when the winter storm is still in progress. See Valentine v City of New York, 86 AD2d 381, 383 (1982), affd 57 NY2d 932 (1982).[4] This Code provision essentially quantifies what is a “reasonable” time period before the duty to remove snow and ice begins.

Significantly, while it is true that such four-hour window is ostensibly provided under the ordinance to an abutting owner such as CUNY as it relates to the New York City Department of Sanitation’s historic obligation to perform its cleaning functions, the Court is not persuaded as to the relevance of this window with regard to an injured third party, especially since the enactment of New York City Administrative Code §7-210 makes no mention of such window, while addressing the negligent failure to remove snow and ice as a component of an adjoining landowner’s duty to maintain the sidewalk in “reasonably safe condition.” Clearly, New York City Administrative Code §7-210 supercedes New York City Administrative Code §16-123. Additionally where, as here, CUNY had performed (and was performing) removal operations, consideration of whether such efforts to make the area “reasonably safe” were negligent under Code and common-law standards is still triggered.

Although CUNY has a duty as a property owner to prevent foreseeable risks of harm, it is not the insurer of public safety. Its duty is to exercise “reasonable care under the circumstances

. . .” [Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. To establish a prima facie case of negligence generally the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence.

Assuming that CUNY did not create the dangerous condition, a claimant must show that the defendant had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). CUNY has a duty to “act as a reasonable man in maintaining property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk.” Miller v State of New York, 62 NY2d 506, 513, 478 NYS2d 829 (1984); Preston v State of New York, 59 NY2d 997, 998, 466 NYS2d 952 (1983). Nonetheless, “a ‘general awareness’ that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused [claimant’s] fall (see Gordon v American Museum of Natural History, 67 NY2d 836, 838; see also, Madrid v City of New York, 42 NY2d 1039) . . . ” Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 (1994); see Ronconi v Denzel Assoc., 20 AD3d 559 (2d Dept 2005); Carricato v Jefferson Val. Mall Ltd. Partnership, 299 AD2d 444 (2d Dept 2002); Smith v State of New York, 260 AD2d 819 (3d Dept 1999).

It is the claimant’s burden to prove her case by a preponderance of the credible evidence. As the trier of fact and law, charged with assessing the credibility [see Raynor v State of New York, 98 AD2d 865, 866 (3d Dept 1983)] of the various witnesses and evaluating the evidence, and upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the evidence established that defendant is at least partially responsible for the claimant’s unfortunate fall and resultant injury.

The testimony of claimant was forthright and credible with regard to the happening of the accident, including her acknowledgment that she was not precisely looking where she was walking when she fell and was aware that the roadway areas appeared clear. The testimony of Mr. Varian and Mr. Stringfield was also credible, if limited to their own perspectives and, in Mr. Varian’s case, somewhat defensive.

Based on Mr. Varian’s testimony as to the weather conditions and the steps taken by him and his staff the morning of March 17, 2007, there was no actual notice to defendant of the icy area that claimant contends caused her fall. With regard to constructive notice, however, claimant established that the defendant should have known that there was a patch of ice in the location where claimant fell - an area where there was a bus stop from which students would likely alight and proceed to CUNY - and that the steps defendant took to clear away ice were not indicative of reasonable care.

The testimony was that snow and ice removal procedures were performed pursuant to plan over the four-mile area, and that personnel generally took the precaution of coming in before storms commenced in order to take care of access to the school, and did so here. More particularly, the snow accumulation from March 16, 2007 had been largely cleared, and personnel again arrived early on the day of claimant’s fall in anticipation of more weather events.

Mr. Varian indicated that the sidewalks were plowed, rather than shoveled, and that the blade of the plow did not reach the sidewalk surface. He said sand was never used, and that salt was preferred. As to what area was salted, and when, however, the testimony was somewhat equivocal. While Mr. Varian appeared to say at first that the complete area (four miles) was salted, he also indicated that when he walked the entire sidewalk between 5:00 and 6:00 a.m., he found an icy area by the steps, and salted that particular area only. He did not find that the area where claimant later fell was icy during this walking inspection (and thus did not apply salt).

Mr. Varian’s subsequent inspection approximately two hours later was not made on foot, although the sidewalk area where claimant fell was at the bus stop very near the school entrances that his own testimony confirmed were a priority. It is highly unlikely that an inspection from the vantage point of a moving vehicle would enable him to see any icy conditions. Although the freezing rain had ended at approximately 4:30 a.m., snow mounds by the curb from the day before remained (a potential source of ice), an on-foot inspection shortly after the freezing rain stopped revealed ice in the entrance area mentioned, only the entrance area was salted between 5:00 and 6:00 a.m., and the temperature, by his own report, was ‘in the 20s”, or very cold as noted by claimant. The Court finds that it was not reasonable care for Mr. Varian to then make a second visual inspection only from the plow given these specific conditions. Notably, Mr. Varian was not the only person working that day, and could have had others physically walk the sidewalk. Snow had ended at midday on March 16, 2007, and freezing rain had ended five (5) hours before claimant fell on March 17, 2007. That these icy conditions on the sidewalk were extant and would have been visible to someone inspecting the area more closely in the exercise of reasonable care is shown in the disinterested testimony of Mr. Stringfield, indicating that it was so icy that he himself had trouble maintaining his balance. Defendant’s argument that because Mr. Stringfield wrote in his report that the ice there was “melting” that this confirms that salt had been applied earlier in the morning is strained.

While defendant failed to exercise reasonable care to assure that the sidewalk areas were reasonably safe and clear of ice when substantial pedestrian traffic could be expected, claimant, too, is partially responsible for the harm that befell her. She was familiar with the area, and readily acknowledged at trial that although her perception had been as she first got off the bus that the sidewalk was clear, she looked to the right and ahead rather than down as she took the few steps on the sidewalk after traversing the mound of snow, not seeing ice until she fell down. The roadway was clear as well, according to her testimony, and might have been utilized to walk further down to a clearer area.

Based on the foregoing, the Court finds the defendant 50% liable for any harm suffered by claimant as a result of its negligent failure to maintain the sidewalk in a reasonably safe condition by removing the ice thereon, and that claimant is 50% responsible for any harm that befell her.

The Clerk of the Court is directed to enter interlocutory judgment on the issue of liability in accordance with this decision. All trial motions not otherwise disposed of are herewith denied. Trial on the issue of damages will be scheduled as soon as practicable.

Let judgment be entered accordingly.

October 21, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[2]. References to the trial transcript are expressed as [T- ].
[3]. “The provision does not apply to ‘one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes’ (Administrative Code of City of NY § 7-210 [b], [c]).” See Vucetovic v Epsom Downs, Inc. 10 NY3d 517, supra footnote 3.
[4]. “[A] municipality is not liable in negligence for injuries sustained by a pedestrian who slips and falls on an icy sidewalk unless a reasonable time has elapsed between the end of the storm giving rise to the icy condition and the occurrence of the accident.”