New York State Court of Claims

New York State Court of Claims

LEBLANC v. STATE OF NEW YORK, #2009-032-503, Claim No. 113694


Case Information

1 1.The Court sua sponte amends the caption to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court sua sponte amends the caption to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Featherstonhaugh, Wiley & Clyne, LLPBy: Randall J. Ezick, Esq., and James D. Featherstonhaugh, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael T. Krenrich and Belinda A. Wagner, Assistant Attorneys General, Of Counsel
Third-party defendant’s attorney:

Signature date:
August 12, 2009

Official citation:

Appellate results:

See also (multicaptioned case)



On February 21, 2007, James LeBlanc (Claimant) traveled to Belleayre Mountain Ski Center (Belleayre) with his wife, Catherine LeBlanc[2], 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 cigarette receptacle.

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 incident[3], 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”[4] (T:148).

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. [5] 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[6] 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 cigarette receptacles.

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 areas.[7] 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 [1986]). 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 [1986]; 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 [1976]; Preston v State of New York, 59 NY2d 997 [1983]; 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 [1952]; 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 [2005]; Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]). 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 roof.

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 denied.

Let judgment be entered accordingly.

August 12, 2009
Albany, New York

Judge of the Court of Claims

[2].Claimant Catherine R. LeBlanc’s cause of action is derivative, and unless otherwise indicated or required by context, the term “claimant” refers to James C. LeBlanc.
[3].Catherine LeBlanc took the photographs admitted as Exhibits 4, 5, 6 and 10 immediately after the incident. She testified that no one moved the cigarette receptacle for such photographs.
[4].His statement is admitted under the excited utterance exception to the hearsay rule (People v Fratello, 92 NY2d 565 [1998]; Gagliardi v American Suzuki Motor Corp., 303 AD2d 718 [2d Dept 2003]; People v Johnson, 275 AD2d 949 [4th Dept 2000]).
[5].At one point Fiore testified about what a man in uniform said to her at the accident scene. This testimony, which is hearsay, is not admitted (T:179).
[6].Mr. Kittle’s deposition (Exhibit 9) was admitted pursuant to CPLR § 3117.
[7].The Court notes that his deposition testimony refers to some photographs which were not marked the same as trial exhibits. Despite the nonalignment of these exhibits, the Court notes that his testimony is consistent with the photographs admitted at trial.