On February 21, 2007, James LeBlanc (Claimant) traveled to Belleayre Mountain
Ski Center (Belleayre) with his wife, Catherine
, and their two children. They arrived
at the Discovery Lodge at approximately 9:00 A.M., enrolled the children in the
ski school, purchased a cup of coffee, and went on the deck of the lodge to
watch their children participate in ski instructions. Soon after sitting down,
Catherine LeBlanc asked her husband to retrieve her cigarettes from their car,
which was parked near the front entrance to the lodge.
Claimant left the deck of the lodge and proceeded along a pedestrian walkway
that led through a covered entranceway to the Discovery Lodge (Exhibits 1-3).
Claimant testified that while walking under the covered walkway and carrying his
coffee, he saw a cigarette receptacle straight ahead of him in the middle of the
walkway. The walkway appeared to be shoveled and free from ice. As he walked to
the right of the cigarette receptacle, he slipped and fell, injuring his right
ankle. According to claimant, the photographs denoted as Exhibits 4-6 depict the
condition of the area where the accident occurred, including the location of the
According to claimant’s deposition and trial testimony, he was unsure of
where he fell or what caused him to fall (T:139). At his deposition he testified
that he never reached the cigarette receptacle, falling some 4-6 feet away from
it (T:135, 137). After he reviewed the trial exhibits, however, he testified
that he fell after he passed the cigarette receptacle, which he based upon the
location of his coffee cup in the exhibits. Claimant admitted being shown the
same exhibits at his deposition as he was shown at trial (T:138).
Catherine LeBlanc testified about the condition of the area where she thought
her husband fell. At trial she testified “I saw a puddle, I saw chopped up
ice” (T:151). However, at her deposition, while looking at Exhibit 4, a
photograph she took immediately following the
, she testified, “You
don’t see the ice, which is underneath that puddle. I mean it was muddy.
It was lots of, you know, the snow” (T:160). When she arrived at the scene
of the accident shortly after the fall, she asked her husband what happened and
stated, “He told me he stepped in a puddle and there was ice underneath it
and he went up”
Joseph Strauss, the Director of Ski Patrol at Belleayre, was one of the first
people to arrive on the scene after claimant fell. He identified Exhibits 4-6 as
the general area where claimant was sitting, although he was unsure of the exact
location of the cigarette receptacle. Strauss described the condition of the
walkway as slushy. Strauss administered first-aid to claimant, who was
sitting on the hard-packed snow next to the walkway, and waited for an ambulance
to arrive. On the accident report that he filled out (Exhibit E), he wrote
“James was off main [walkway] trying to walk between [the] building and
[the] butt can [and] slipped on ice [which] was formed from [snowmelt] off of
[roof].” (Exhibit E, p 2). Strauss testified that James told him that he
was walking between the building and the butt can, that he stepped on the
hard-packed snow and fell backwards (T:75). Strauss explained that it was a
warmer week and water dripped off an eave, which extended 12 inches from the
roof, causing buildup on the corner of the building (T:69-70). This was the only
accident in that area to date (T:73). Strauss also indicated that “ice was
cleaned up asap” (Exhibit E, p 1). He indicated where the ice was by
drawing a green circle around it on Exhibits 4-6.
Anne Marie Fiore testified for claimant, as an eyewitness to the accident.
As she was walking towards the doors of the
Discovery Lodge (Exhibit 2), she saw a person carrying a cup of coffee slip and
fall. She went over to help him but she slipped on ice that was covered with
powdered snow and fell. She disagreed with Strauss and claimant as to the
location where claimant fell (T:173; Exhibit 4). Specifically, she testified
that claimant fell somewhere towards the lower right hand corner of Exhibits
4-6, which was not near the area between the cigarette receptacle and the
building, the area denoted by claimant at trial as the place of the fall. She
marked Exhibit 3 as to the locations where she believed she and claimant had
fallen. She did not recall the presence of a cigarette receptacle.
Victor Kittle testified
that he has been
employed by Belleayre for 26 years. He is presently the Building Maintenance
Supervisor. Part of his responsibility as the Building Maintenance Supervisor is
to keep the walkways and decks of the lodges clear of snow. He describes himself
as a working supervisor, with a staff of five people. On weekends he is fully
staffed, but on weekdays, he may have only two or three people working,
including himself. During holiday weeks, including President’s Week in
February, he has people work overtime so that there is more coverage. On
weekdays he starts work at 7 A.M. His staff, except for one member who starts
work at 6 A.M., comes in at 8 A.M. The staff is responsible for inspecting the
walkways and doorways in the morning and making sure they are clear by 9 A.M.
They are also responsible for inspecting the walkways and doorways throughout
the day. If there is snow, they clear it with snow blowers and shovels. If a
storm is ongoing, they routinely go back to make sure there are no accumulations
of snow or slippery unsafe areas. If ice is found upon inspection, sodium
chloride is applied. Rock salt is applied on extended walkways. If the ice still
does not melt, ski patrols will block the affected areas or maintenance will
block them with highway cones. The cleaning staff is responsible for the
According to Kittle, there were no protocols for addressing snow on the roofs
of buildings. The roofs were shoveled for structural purposes only, and they
were done very rarely. The roof above the Discovery Lodge extended past the
concrete entrance pad (Exhibit 2). If water ran down from the roof, it would run
onto the walkway. Gutters are not used to prevent snow melting off the roof
toward the walkways. The walkways are pitched away from the buildings.
On February 21, 2007, Kittle was off from work, but two of his staff were on;
one started work at 6 A.M. (Mr. Ingram) and the other at 9 A.M. (Mr. Searle).
Kittle testified that according to his records, each man spent two hours that
day on snow and ice removal. His records did not reflect where such work was
performed. He admitted that it was possible that water had fallen from the
gutterless roof, causing water and ice to pool in certain
However, he believed that such a
situation would have been discovered by the two men working that morning.
At the end of trial, claimant requested that a missing witness inference be
taken against defendant for its failure to call Mr. Ingram or Mr. Searle to
testify at trial.
The mere failure to produce a witness at trial is insufficient to justify a
missing witness inference. It must be shown that a particular witness is
knowledgeable about a material issue upon which evidence is already in the case,
that the witness would be expected to provide noncumulative testimony favorable
to the party who has not called him, and that the witness is available to such
party (People v Gonzalez, 68 NY2d 424 ). Claimant has failed to
demonstrate that Mr. Ingram or Mr. Searle would provide substantial rather than
cumulative evidence (Tweedy v Roman Catholic Church of Our Lady of
Victory, 232 AD2d 630 [2d Dept 1996]; Godfrey v Dunn, 190 AD2d 896
[3d Dept 1993]). Further, Kittle had identified Mr. Searle and Mr. Ingram as the
employees who worked on the day of the accident. Claimant was not precluded from
deposing these witnesses or securing their presence at trial by means of a
subpoena (Schittino v State of New York, 262 AD2d 824 [3d Dept 1999]).
Therefore, the Court declines to take such inference.
After considering all the evidence, including the observance of the
witnesses’ demeanor and the exhibits admitted into evidence during trial,
the Court finds by a preponderance of the evidence that the claimant has failed
to establish a viable cause of action against defendant. At the outset, the
Court notes that claimant has failed to prove where he fell. His trial testimony
was less than convincing as it not only differed from his deposition testimony,
but differed from the testimony of his witness, Fiore. Moreover, when Claimant
attempted to explain why his testimony at trial was different from his
deposition testimony, he indicated that it was because he had reviewed certain
exhibits before testifying at trial. However, the exhibits he reviewed before
testifying at trial were the same exhibits he reviewed during his deposition.
“[F]ailure to prove what actually caused a plaintiff to fall in a
situation where there could be other causes is fatal to a plaintiff’s
cause of action” (Dapp v Larson, 240 AD2d 918, 919 [3d Dept 1997]).
The cause of the fall must be specific and definite (Williams v Hannaford
Bros. Co., 274 AD2d 649 [3d Dept 2000]). A claim based on surmise,
conjecture and speculation is without probative value (Martin v Wilson Mem.
Hosp., 2 AD3d 938 [3d Dept 2003]).
Assuming arguendo that claimant did prove that he fell at the place he
testified to at trial, claimant failed to prove a breach of duty. In order to
establish a breach of duty in a slip and fall case, claimant must prove by a
preponderance of the credible evidence that: (1) a dangerous condition existed;
(2) defendant either created the dangerous condition or had actual or
constructive notice thereof and failed to alleviate the condition within a
reasonable time; and (3) such condition was a substantial factor in the events
that caused the injury suffered by claimant (see Winter v State of New
York, Claim No. 109250, Feb. 28, 2008, McCarthy, J. [UID No. 2008-040-011],
citing Gordon v American Museum of Natural History, 67 NY2d 836,
837 ; Medina v Sears, Roebuck & Co., 41 AD3d 798, 799 [2d Dept
2007]; Borenkoff v Old Navy, 37 AD3d 749, 750 [2d Dept 2007]; Mehalco
v Palleschi, 15 AD3d 745, 746 [3d Dept 2005]; Dapp v Larson, 240 AD2d
918, supra). As a landowner, the State owes a duty to keep its premises
reasonably safe in view of all the circumstances (Basso v Miller, 40 NY2d
233 ; Preston v State of New York, 59 NY2d 997 ; Gonzalez
v State of New York, 60 AD3d 1193 [3d Dept 2009]). However, the State is not
an insurer of the safety of those who enter upon its premises and negligence
cannot be inferred solely from the occurrence of an accident (see
Winter v State of New York, supra, citing Tripoli v
State of New York, 72 AD2d 823 [3d Dept 1979]; Ebuzoeme v City Univ. of
N.Y., 10 Misc 3d 1079[A], 2005 Slip Op 52256[U] [Ct Cl 2005]).
In the present case, Claimant has not established that a dangerous condition
existed. The exhibits reveal a fairly clean walkway surface with some remnants
of melting snow. The failure to remove all snow and ice does not constitute
negligence (Spicehandler v City of New York, 303 NY 946 ;
Cardinale v Watervliet Hous. Auth., 302 AD2d 666 [3d Dept 2003]). Even
claimant testified that the walkway appeared to be shoveled and free from ice.
This testimony coincides with defendant’s records which indicate that two
men spent two hours each on snow and ice removal that morning.
Strauss’s accident report indicated that the alleged ice claimant fell
upon “was formed from [snowmelt] off of [roof]” (Exhibit E, p 2).
There was no evidence that this was a recurring problem. In fact, Strauss never
responded to another accident in this area to date (T:73). Constructive notice
can be established through evidence that the defendant was aware of an ongoing
and recurring dangerous condition which regularly went unaddressed (see
Davis v State of New York, Claim No. 112476, Sept.17, 2008, Collins, J.
[UID No. 2008-015-507]; Mazerbo v Murphy, 52 AD3d 1064, 1066 [3d Dept
2008]; Kivlan v Dake Bros., 255 AD2d 782, 783 [3d Dept 1998]). “To
constitute constructive notice, a defect must be visible and apparent and it
must exist for a sufficient length of time prior to the accident to permit
defendant’s employees to discover and remedy it” (Gordon v
American Museum of Natural History, 67 NY2d 836, supra at 837). Here,
there was no proof offered by claimant as to the length of time that the alleged
ice remained unattended. Although Kittle testified that it was possible that
water had fallen off the gutterless roof, proof which establishes no more than a
general awareness that outdoor areas become wet or icy during inclement weather
is insufficient to establish constructive notice of the specific condition
causing an injury (Davis v State of New York, supra, citing
Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 ; Piacquadio
v Recine Realty Corp., 84 NY2d 967, 969 ). A general awareness that
snow or ice might accumulate is insufficient to constitute constructive notice
(Orr v Spring, 288 AD2d 663 [3d Dept 2001], citing Wimbush v City of
Albany, 285 AD2d 706 [3d Dept 2001]; Chapman v Pounds, 268 AD2d 769
[3d Dept 2000]). Moreover, Kittle testified that if there was runoff, the two
men working that day would have discovered it. Claimant offered no expert
testimony about the possibility that the alleged ice came from the gutterless
Based upon the foregoing, this Court finds that claimant failed to prove by a
preponderance of the evidence that the alleged place of his fall was the
proximate cause of his accident.
The claim is hereby dismissed. All motions not previously ruled upon are hereby
Let judgment be entered accordingly.