Angel Rivera (“Claimant”) filed claim number 111741, alleging that
the State negligently maintained a walkway at Groveland Correctional Facility
(“Groveland”) which caused him to slip and fall and injure himself.
I held a trial on the liability portion only of this claim on November 20, 2008
and April 1, 2009 in Rochester, New York.
Claimant testified that on February 28, 2005 he ate dinner in the Groveland
dining hall from 4:00 to 5:00 p.m. He returned to his dormitory,
“L-Dorm,” for the after-dinner “count,” which usually
takes the correction officers no more than 15 minutes to accomplish. After all
the inmates are accounted for, the recreation yard is opened and all inmates
have free time. Claimant stated that he chose to walk to the “Lower
Green” to watch television. Televisions are set up in wooden cabinets,
outside, in front of a set of movable aluminum bleachers with approximately four
rows of seats. Claimant testified that he watched television for three hours
and left when officers turned off the televisions at about 9:50 or 9:55 p.m. He
intended to return to his dormitory for the final count of the day but fell on
the way back.
Exhibit A is a two-page plot plan of Groveland. Claimant marked the key areas
involved. L-Dorm is north of the main yard (Exhibit A, p. 2), approximately
2,200 feet, in a straight line, from the mess hall. Claimant drew a red circle
on Exhibit A, east of the mess hall, to indicate where the televisions were set
up during recreation. This area sits outside the “Hickory” Storage
Building and is referred to as the “Lower Green.” It is
approximately 1,900 feet away from L-Dorm. Claimant described the recreation
yard as a grassy field. The walkway that Claimant used is not depicted in
Exhibit A, but it is shown in Exhibit G. That walkway appears to be the main
path that cuts straight through the yard, running north and south.
Claimant described Exhibit 1 as representative of the walkway he used. It is
an asphalt path surrounded by tall flood lights. On cross-examination he stated
that, although inmates could use that path to get to the mess hall, there was a
shorter way to get there and Claimant walked on that alternate walkway on the
date of the accident. He stated that he did not use the main path after the
dinner count to go to the Lower Green, either. Rather, he walked to C-Dorm at
the west side of campus to meet another inmate before proceeding to the Lower
Green to watch television.
Claimant testified that, on the evening of his accident, there was snow on the
field and the walkway. He thought the snow on the field was approximately five
to six inches deep and that the snow on the walkway was two inches deep,
“tops.” Claimant was walking alone, but there were inmates in front
of him and behind him on the walkway. He stated that he was walking fine, but
then “slipped” and ended up on the ground. He could not identify
which foot slipped but said he landed on the ground sitting on his buttocks and
his leg and “heard a snap like a twig.” He tried to get up three
times, but could not. Just before he fell, he had walked about ten feet up the
walkway and it had not been slippery. He was not wearing gloves, so when he
tried to get up by placing his bare hands on the ground, he felt ice under the
snow in the area where he sat.
An inmate named Dean Williams came up from behind him after he fell and helped
Claimant stand. Claimant was unable to put his weight on his foot so he used
Mr. Williams like a crutch and the two of them proceeded to the infirmary. At
the infirmary door, Mr. Williams was sent back to his dormitory and Claimant was
admitted and treated. Claimant was given ice and crutches and, an hour later,
was driven back to his dormitory in a van.
Claimant further described the part of the walkway where he fell as having a
five- to six-inch-deep hole and the asphalt was broken up, but he was not aware
of that condition prior to his fall. He said he did not observe that condition
until he went back to look at the accident location. At trial, he testified
that he returned to the site of his accident two days after his fall, but in a
deposition, he stated it was two months after the accident.
Lieutenant William Bailey was stationed at Groveland in February 2005 as a
correctional sergeant. His bid was “Relief Sergeant,” meaning he
covered several different areas of the facility, spending two days in each area.
Two days a week, during the month of February 2005, he covered the “Lower
Green.” The Lower Green consists of many different buildings and the ones
we are concerned with from the day of Claimant’s fall are the Hickory
Storage Building and the recreation shack, which are designated as buildings 295
and 296, respectively, in both Exhibits A and H. (The Lower Green also includes
buildings 16, 17, 18, 20, 21, 92, 93, 94, 95, 96, 97, 320 and 399 as indicated
on both Exhibits A and H.) Lieutenant Bailey identified the recreation shack
and the walkway where Claimant fell in Exhibits 1 and 2. He stated that the
area of the walkway that shows a different color and slight depression was a
patch that was present in February 2005. He also testified that approximately
300 inmates use that walkway on a daily basis.
Lieutenant Bailey was on vacation the day that Claimant fell but heard about
the accident when he returned to work on March 4, 2005, when he was instructed
by the Watch Commander to investigate the condition of the walkway. Lieutenant
Bailey wrote a memorandum to Lieutenant Wilcox on March 4, 2005 regarding the
conditions on the night of February 28, 2005. He researched the weather
temperatures and noted that, at 2:00 p.m., the temperature was 32 degrees and it
dropped to 29 degrees at 10:00 p.m. (Exhibit 8). Lieutenant Bailey stated that
the weather was clear - he had been traveling from Buffalo to his home in
Penfield that evening, but he was not in Sonyea, where Groveland is located.
Lieutenant Bailey also had Exhibit 3, a photo of the location taken on March 2,
2005, just two days after Claimant’s fall. I note significant snow
coverage on the grassy areas, icicles hanging from the building and a lighter
colored area of the walkway near Claimant’s initials “AER”
signifying the presence of either water or ice. Lieutenant Bailey acknowledged
in his memo that, at that time of year, it was not unusual for the walkway to be
wet and then become slippery when the temperature dropped.
Irving D. Schoenacker, a retired correction lieutenant, was stationed at
Groveland as the midnight Watch Commander on February 28, 2005. He was
responsible for the last hour of the afternoon shift and seven hours of the
midnight shift. He started work at 9:00 p.m. on February 28, 2005 and was
relieved at 6:00 a.m. on March 1, 2005. He made daily rounds and was
responsible for security, movement and staffing. His office was in Building 4,
the administration building (Exhibit H). At 9:45 p.m. on February 28, 2005,
Lieutenant Shoenacker completed the Watch Commander stamp in the logbook, noting
that it was snowing and 29 degrees (Exhibit
. At 2:30 a.m. on March 1, 2005, three
maintenance workers were called in to plow snow (Exhibit I).
Ronald Conrad was the Plant Superintendent at Groveland from 1995 to 2000 and
2002 to the present. Prior to his arrival at Groveland in April 1995, a sewer
construction project was completed (Exhibit D). That particular sewer line
traversed the Lower Green, specifically under the walkway where Claimant fell.
Mr. Conrad explained the pipe crossed specifically where the pavement changed
color - where the walkway was patched when the construction was completed. He
agreed that the patched area is depressed, as shown on Exhibits 1 and 2.
Claimant submitted deposition testimony of correction Officer Peter Parmele
(Exhibit 20), Sergeant Donald Babcock II (Exhibit 21) and Mr. Dean Williams
(Exhibit 22). I have reviewed their testimony and find the following:
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).
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 . . .”
(Tobias v State of New York, Ct Cl, December 19, 2000 [Claim No. 96244],
Patti, J., UID No. 2000-013-520 [citations omitted]). 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).
The walkway had been patched in April 1995 upon the completion of the sewer
line project. By 2005, the patch appears to have settled into a depressed state
deep enough for water to pool and freeze. However, there does not appear to be
a five- or six-inch hole with broken asphalt. The weather on February 28, 2005
was seasonable. There is conflicting testimony as to whether or not it was
snowing, but there is no doubt that the temperature was at freezing or below.
The only first-hand observations of the walkway at the time of Claimant’s
fall come from Claimant himself, who indicated it was snow-covered and the
patched area was icy. While Claimant may have proven by a preponderance of the
credible evidence that a dangerous condition existed, that is, there was a patch
of ice over the patched area of the walkway, there is no proof that the State
either created the condition or had notice of the condition. Snow and ice in
February in western New York State are prevalent. There was nothing about the
condition of this walkway that was unusually dangerous. In fact, over 300
inmates moved over this walkway several times a day without incident.
For the reasons set forth above, I find that Claimant has failed to demonstrate
a prima facie cause of action for negligence. I have no doubt that Claimant
slipped and fell and was badly hurt. This was an unfortunate accident that
appears to be no one’s fault. Accordingly, Claim number 111741 is
All other motions on which the Court may have previously reserved or which were
not previously determined are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.