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
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
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
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
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.