New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2009-031-503, Claim No. 111741


Claimant failed to demonstrate notice to Defendant of alleged dangerous condition. Claim for negligence relating to slip and fall on walkway dismissed.

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:
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 11, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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 5)[1]. 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:
  1. Snow removal during the winter of 2005 was done by inmates under the supervision of Correction Officer Parmele, who stated he was familiar with the area depicted in Exhibits 1 and 2 (deposition Exhibits B and F) and that snow and ice did accumulate in the patched area of the walkway, as well as the total length of the walkway.
  2. That it appeared to Mr. Williams, on the night that Claimant fell, that the whole walkway was snow-covered and there was “a lot of ice” in the area.
  3. Mr. Williams observed ice or water in the “dip” in the walkway on prior occasions.
  4. Mr. Williams recalled that it was cold on the night of Claimant’s fall, but not snowing. There was already snow on the ground, like that depicted in Exhibit 25 (Deposition Exhibit 3), and also snow packed down on the walkway.
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 dismissed.

All other motions on which the Court may have previously reserved or which were not previously determined are hereby denied.


May 11, 2009
Rochester, New York

Judge of the Court of Claims

[1].The Lieutenant explained that, although his shift began on February 28, 2005, it continued past midnight and was, therefore, considered a March 1, 2005 shift.