New York State Court of Claims

New York State Court of Claims

WILSON-RICHARDSON v. THE STATE OF NEW YORK, #2009-031-501, Claim No. 111637


Synopsis


Although Claimant shared responsibility for slip and fall on icy stairway at entrance of correctional facility, she adequately demonstrated that Defendant had notice of dangerous condition of stairs and failed to take remedial action. Liability apportioned 60% to Claimant, 40% to Defendant.

Case Information

UID:
2009-031-501
Claimant(s):
THERESA J. WILSON-RICHARDSON
Claimant short name:
WILSON-RICHARDSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111637
Motion number(s):

Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
CELLINO & BARNES, P.C.BY: BRETT L. MANSKE, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 23, 2009
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Theresa J. Wilson-Richardson (“Claimant”) filed claim number 111637 on November 17, 2005, alleging that the State’s negligence caused her to slip, fall and sustain injuries, while exiting Wyoming Correctional Facility (“Wyoming”) on January 19, 2004. I held a trial on the issue of liability only on August 6, 2008 in Rochester, New York. Counsel made post-trial submissions, which I considered when making this decision.


Claimant testified that she had been visiting her husband at Wyoming as she did every weekend and on holidays from the start of his incarceration in 2002 until his release in 2005. The day of her accident, January 19, 2004, was a Monday and it happened to be Martin Luther King, Jr. Day. At that time, she resided in Ontario, New York. She left her home at 7:00 a.m. It was cold, but clear, and she believed the temperature was about 10 or 11 degrees. She wore jeans, sneakers and an overcoat. On her way to Wyoming, she picked up her friend, Mrs. Orley Griffen and Mrs. Griffen’s two grandchildren. They arrived at Wyoming between 9:00 a.m. and 9:30 a.m. The weather was still clear when she parked her car in the handicapped parking area, directly in front of the steps leading up to the Wyoming Administration Building (Exhibit E). This is where visitors are required to enter the facility.

Approximately one week after her fall, Claimant returned to Wyoming and took a picture of the front steps where she fell. A blow-up of the picture was admitted into evidence as Exhibit 1. Using Exhibit 1, Claimant described the route she walked to enter the Administration Building on January 19, 2004. After leaving her car, she walked to the right side of the stairs as she faced them and walked up the stairs next to the railing on the right side. She stated that the Black SUV shown in Exhibit 1 was not there on the day she fell, but Exhibit 1 was otherwise an accurate depiction of the location of her fall.

Claimant proceeded through the front door by the blue box depicted on the left side of Exhibit 1 and into the Lobby, where she acquired her paperwork and was processed for entry into the facility. Next, she exited the Lobby and Administration Building and walked the short distance to the building that houses the Visiting Room. She arrived in the Visiting Room between 10:00 a.m. and 10:30 a.m., received her table assignment and met her husband at approximately 11:00 a.m.

Claimant described the physical layout of the Visiting Room and noted that there were a number of windows through which she was able to observe the weather outside. She testified that sometime between 11:00 a.m. and 11:30 a.m., the weather changed and it began to snow. The flakes were large and “heavy.” Claimant stated that it was snowing heavier than what is depicted in Exhibit 1, and it continued to snow at that level for a “couple hours,” ending at approximately 1:00 p.m.

Claimant’s visit concluded at 3:30 p.m. She observed through the windows that it had stopped snowing and the weather was “clear” but that it was starting to get dark. She first encountered snow when she left the building that housed the Visiting Room. She observed a “little bit of snow,” saying it came about halfway up her sneakers. Claimant arrived in the Lobby of the Administration Building by 3:40 p.m. In the Lobby, she observed a correction officer seated at the Lobby desk and five or six other officers by the large front window. Claimant opined that there were always a number of officers standing in the Lobby at the conclusion of visiting hours; she believed it was a shift change time for Wyoming staff.

Claimant left through the Lobby front door and proceeded approximately 20 feet across the platform to the stairs. She knew ice was present because the two children walking ahead of her were slipping. Mrs. Griffen was standing beside her and an acquaintance of hers, the Reverend Pearl Cunningham, was just in front of her. Claimant observed snow and ice on the stairs, so she held on to the railing with her right hand. She successfully stepped off the platform onto the first step, but when she went to place her foot on the next step down, it slipped, causing her left leg to fold underneath her and the rail to catch her under her right arm. She did not fall to the ground but, instead, was “dangling” from the rail. Rev. Cunningham and Mrs. Griffen helped her to her feet and then to her car. Claimant stated that she had trouble walking but was too hurt and embarrassed to go back into the building to report her injury. Instead, she drove Mrs. Griffen and her two grandchildren home. She testified that she had to drive her car because Mrs. Griffen was unable to use a manual transmission and the children were too young to drive.

Claimant arrived at her own home at approximately 5:00 p.m. She then called Wyoming and spoke to a secretary in the Superintendent’s Office to inform them that she had fallen. She was advised that she should have come back inside and reported the incident (Exhibit 5). She was also told to notify Wyoming in writing about the incident. A week later she did attempt to report the fall but testified that no one was available to take her report (Exhibit 6).

Reverend Pearl Cunningham also testified concerning the incident. She arrived at Wyoming on the day of Claimant’s fall at approximately 10:00 a.m.. She described the weather as a little cloudy with light flurries. She parked in a handicapped spot in front of the Administration Building and used the left side of the steps. Reverend Cunningham observed a little snow on the steps on her way into the facility. She used the stairs shown on the far left of Exhibit 1. Reverend Cunningham spent 28 years in the jail ministry and had been to Wyoming many times. She has seen salt spread on the front steps by correction officers, as well as by inmates on occasion. She observed no one salting or shoveling the steps on January 19, 2004.

Reverend Cunningham testified that the weather at the close of visiting hours on January 19, 2004 was cold and windy. She observed that the platform area outside the Administration Building was “wet” and testified that the conditions looked like those shown in Exhibit 1. She walked very slowly so she would not fall and used the railing as shown at the far right side of Exhibit 1. She admitted her shoes were “not good.” She stated that the stairs were a “little icy,” but not bad, although she noted that the bottom portion of the stairs was icier than the top. She started to walk toward her car when she heard a yell behind her. She turned and saw Claimant hanging onto the railing with her right arm, one leg behind her. Rev. Cunningham testified that she observed two officers standing in the Lobby window as she helped Claimant to her feet, down the steps and to her car.

Sergeant John Kruger was a Visiting Process Officer at Wyoming in 2004. He did not personally observe Claimant fall but he conducted the investigation at the facility. He testified that visitors are not permitted to leave the premises between 2:45 p.m. and 3:05 p.m. because that is when the shift changes. He stated that most visitors leave between 3:15 p.m. and 3:30 p.m. and that Wyoming has a “heavy” visitor population, usually around 100 people each time.

He testified that there are typically three officers in the Lobby at any given time. Two check stamps and collect visitor slips while one is stationed at the Lobby desk observing the exits. He is certain that no other uniformed officers are present in the Lobby unless it’s 2:45 p.m. when many are in the Lobby waiting for “line-up” and shift change.

Sergeant Kruger stated that inmate porters are responsible for making sure the stairs and walks in front of the Administration Building are “clean.” Sergeant Kruger opined that the conditions as depicted in Exhibit 1 were satisfactory. Inmate porters use salt or calcium to de-ice the steps. These agents are held in a blue barrel, as seen in Exhibit 1 just under the front end of the SUV. The blue box shown to the left in Exhibit 1 is the snowblower. Inmate porters are responsible for removing snow and using salt as conditions warrant and under the supervision of the “Lobby Officer.” On the day of Claimant’s accident, Linda Baker, who also testified for the Defendant, was the Lobby Officer.

Officer Baker stated that her responsibilities as Lobby Officer included supervising the inmate porters, processing visitors, maintaining order and maintaining the front of the Administration Building, including the steps and platform. Wyoming staff monitor conditions outside by looking out the windows and by responding to complaints. Inmate porters are available until 2:00 or 2:15 p.m., at which time they would make one last check of the front entrance area to make sure it is clean. Officer Baker testified that she also personally checks the steps before 2:45 p.m., since there is a lot of foot traffic between 2:45 p.m. and 3:45 p.m. If she deemed they needed cleaning, she would have an inmate porter called to salt and shovel the steps. She also noted that she typically executes her duties sitting at the Lobby desk and, while that position allows her to observe the exit, she cannot see the steps through the front window unless she stands up.

Lieutenant Scott Kibler was the Watch Commander on duty at the time Claimant fell. Although he was not personally aware of the accident, he did initiate the investigation once he received Claimant’s first letter regarding her fall at Wyoming (Exhibit 5). He affirmed that it would be inmates that kept the walks and stairs clear of ice and snow, but it appears that civilians could be called in if necessary (Exhibit 2). It also appears that the inmate porters would be responsible for inspecting the area as well, to determine if they needed to be cleared. Otherwise, there is no written policy governing the snow and ice removal procedure.

It is well established that “[t]he State - just as any other party . . . is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived” (Flaherty v State of New York, 296 NY 342, 346 [citations omitted]) and with respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506). However, the State is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874).

In order to establish liability in a slip and fall case, Claimant must demonstrate, by a preponderance of the credible evidence, that a dangerous condition existed; that the State either created this dangerous condition or had actual or constructive notice of the condition and failed to correct the problem within a reasonable period of time; and that this dangerous condition was a proximate cause of the accident (Goldman v Waldbaum, Inc., 297 AD2d 277; Dapp v Larson, 240 AD2d 918).

Here, Claimant alleges that Defendant’s failure to inspect and remove snow and ice from the front steps of Wyoming’s Administration Building created a dangerous condition which caused her to slip and fall, injuring her leg and arm. It is undisputed that Claimant safely climbed the stairs on the morning of January 19, 2004 and that it snowed continuously for at least two hours prior to her departure from that building. The condition of the steps was substantially as they appear in Exhibit 1. A preponderance of the credible evidence at trial showed that parts of the steps were icy and that inmate porters inspected the premises at least once on January 19, 2004 at approximately 2:15 p.m., before they left for the day. Thus, I find Defendant had constructive notice of the condition of the stairs. Despite the fact that a bucket of salt was just outside the door at the top of the stairs, no evidence was presented at trial that salt was applied to the area that day.

Liability for a slip and fall on ice and/or snow must be considered in light of problems caused by winter conditions (Pappo v State of New York, 233 AD2d 379, 379 - 380). Claimant “must establish that the injury causing condition was dangerous and different in character from conditions ordinarily and generally brought about by winter weather in the given locality [citations omitted]” (Tobias v State of New York, Ct Cl, December 19, 2000 [Claim No. 96244], Patti, J., UID No. 2000-013-520). The failure to remove ALL snow and ice from a sidewalk is not necessarily negligence unless the hazard was somehow increased by the process of the snow and ice removal itself (id.). In addition, Defendant is entitled to a reasonable amount of time at the conclusion of a storm or other weather event to take corrective action (see Boyko v Limowski, 223 AD2d 962; Downes v Equitable Life Assur. Socy. of U. S., 209 AD2d 769).

There is no written snow removal policy covering this area of Wyoming. Testimony at trial proved snow and ice removal was done at the discretion of the Lobby Officer and/or in response to complaints. The snow stopped at 1:00 p.m. and inmate porters were available until 2:00 or 2:15 p.m. that day. If Officer Baker personally checked the condition of the steps before line-up and shift change, she did not testify as to what she observed. Ice on these well-traveled steps constitutes a dangerous condition; one which Defendant had the time and opportunity to address. I find the Defendant was negligent.

In spite of the evidence of Defendant’s negligence, Claimant was required to see that which was before her and which could be seen (Weigand v United Traction Co., 221 NY 39). Claimant testified she was familiar with this route and observed the children walking in front of her slipping on the stairs. Further, despite the weather conditions, she wore sneakers, not winter boots. Although she may have had weather-appropriate outerwear, her footwear was inappropriate. I find Claimant was also negligent and must share responsibility for her injury (Paul v State of New York, Ct Cl, March 14, 2008 [Claim No. 109802], Minarik, J., UID No. 2008-031-501).

I fix Defendant’s negligence at 40% and the Claimant’s negligence at 60%.

Any motions upon which I previously reserved, or which were previously undecided, are denied.

This claim will be scheduled for trial on the issue of damages as soon as practicable.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.


March 23, 2009
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims