New York State Court of Claims

New York State Court of Claims

EARLEY-NADLER v. THE STATE OF NEW YORK, #2009-041-505, Claim No. 110939


Synopsis

Claim alleging that icy condition at exterior courtyard at SUNY Albany caused claimant to fall and suffer injury is dismissed after trial where proof failed to show that condition had existed for a sufficient period of time prior to claimant’s fall to permit defendant to discover and remedy it.

Case Information

UID:
2009-041-505
Claimant(s):
CHRISTINE EARLEY-NADLER andRICHARD H. NADLER
1 1.The caption is amended to reflect the only properly named defendant.
Claimant short name:
EARLEY-NADLER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110939
Motion number(s):

Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
FRIEDMAN, HIRSCHEN & MILLER LLPBy: Jeffrey N. Miller, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Saul Aronson, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 18, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Christine Earley-Nadler (claimant), while visiting the State University of New York at Albany campus on March 9, 2005, fell and injured herself at approximately 9:30 a.m. Just over six inches of snow had fallen the previous day in Albany but no snowfall was recorded after 1:00 p.m. on March 8. The morning of March 9 was clear, there was no precipitation and there had not been any for at least nine hours prior to claimant’s fall. The temperature never exceeded 19º F on March 9.


Touring the campus with a group of between 15-20 people, claimant exited the Life Sciences building and entered a courtyard/walkway in Indian Quad (depicted in Exhibits 1, 2 and 3), with a concrete walking surface. While walking on a “very gentle” slope, claimant fell and was injured.

While the courtyard in question was free of snow, there were substantial testimonial differences at trial about whether the location where claimant fell was wet or icy at the time of claimant’s fall. Claimant and certain witnesses described the location as icy and the defendant’s witnesses reported that the pavement was wet only.

Although the courtyard conditions at the time of claimant’s fall were contradictorily described, the Court is persuaded that claimant did slip and fall on ice the morning of March 9, 2005 at approximately 9:30 a.m. The facts persuading the Court include: 1) claimant’s testimony regarding her observation of ice after her fall and that an attending EMS responder was slipping on the pavement while seeking to assist her; 2) while walking down a gently sloping surface her feet went out from under her, causing her to fall backward, onto her back; and, 3) most importantly, the only disinterested witness at trial, the EMS responder, Mark Hitchcock, testified and contemporaneously recorded (Exhibit 7), that conditions were “very slippery” and “EMS providers almost fell.” However, the fact that claimant slipped and fell on ice does not necessarily implicate defendant’s liability.

The law concerning premises liability in New York under these circumstances is well established. “Having waived its sovereign immunity, the State is subject to the same rules of liability as apply to private citizens” (Preston v State of New York, 59 NY2d 997, 998 [1983]). “It is beyond dispute that landowners and business proprietors have a duty to maintain their properties in reasonably safe condition” (Di Ponzio v Riordan, 89 NY2d 578, 582 [1997]; Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 876 [3d Dept 2004]). However, “[w]hile the State clearly owes a duty to claimants and others entering upon its property to maintain it in a reasonably safe condition under the circumstances, it is not obligated to insure against every injury which may occur” (Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]).

The State’s liability for a slip and fall is premised upon proof that it either created the alleged dangerous condition or knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998], Keir v State of New York, 188 AD2d 918, 919 [3d Dept 1992]).

Where there is insufficient proof that the defendant created or had actual notice of the condition, liability turns on the issue of whether defendant had constructive notice. “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, 837 [1986]; see Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]).

DiGrazia v Lemmon (28 AD3d 926, 927 [3d Dept 2006], lv denied 7 NY3d 706 [2006]), reminds that claimant is:

“[R]equired to present evidence that ice existed, and that it was visible and apparent and had existed for a sufficient period of time prior to [her] fall to permit defendant to discover and remedy it (see Boucher v Watervliet Shores Assoc., 24 AD3d 855, 856 [2005]; Mokszki v Pratt, 13 AD3d 709, 710 [2004]). Defendant’s general awareness that icy conditions might have existed is insufficient to establish constructive notice of the specific condition that resulted in plaintiff’s injuries (see Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]).”


No proof was introduced suggesting or proving that the defendant either created or knew of the ice upon which claimant slipped in Indian Quad on the morning of March 9. The question on liability therefore turns on whether the defendant should have known in the exercise of reasonable care that a dangerous condition existed there and whether defendant failed to remedy that condition within a reasonable period of time.

Timothy Reilly, the Manager of Grounds at State University of New York at Albany, responsible for snow and ice control on the campus, and Scott Grassi, the grounds crew employee at the campus specifically assigned to Indian Quad the morning of March 9, 2005 testified, respectively, as to campus snow and ice removal protocols, and to the specific maintenance steps taken in Indian Quad that morning.

It having snowed the previous day, Mr. Reilly testified a “snow event” had been declared, meaning that snow and ice removal on campus began to operate on a 24-hour per day basis. Mr. Reilly’s contemporaneously kept logbook (Exhibit 8) indicates overnight assignments were made from 7:30 p.m. March 8 to 8:00 a.m. March 9, to clear various areas of the campus of snow and ice. The logbook further indicates the specific assignment of grounds crew members Grassi and VanAuken to the “Quads” the morning of March 9, additionally specifying “Indian 1st.”

Mr. Grassi, reporting to work that morning at 7:00 a.m., testified that he and Mr. VanAuken performed maintenance at Indian Quad between 7:15 a.m.-7:30 a.m., and that he spread a melting agent, calcium chloride, throughout Indian Quad during that time. He further testified to observing wetness only in Indian Quad that morning and that the calcium chloride was being spread as a precaution. He further testified that calcium chloride had been spread in Indian Quad earlier that morning, prior to his application (he referred to the “B Team” having similar responsibilities to his in a snow event during the shift prior to his, 7:00 p.m. March 8 to 7:00 a.m. March 9).

Both Mr. Reilly and Mr. Grassi testified that snow and ice removals were conducted under a “curb to curb” protocol, meaning snow and ice were to be removed to the pavement the entire length and width of each Quad courtyard. Moreover, Mr. Reilly indicated that grounds crews were assigned to the Quads each day to ensure that courtyards and walkways were “clear to pavement” of snow and ice.

Other than claimant’s post-fall observation, “It was just a sheet of ice in my vision,” the record is devoid of any reference concerning the dimensions of the ice upon which claimant slipped and is completely devoid of any proof on the length of time the ice upon which she slipped had existed. Beyond claimant’s imprecise description of the ice, her observations were made while on the ground after having fallen and in apparently excruciating pain, and while surrounded by several people who gathered to shield her from the wind. Whether the specific location upon which claimant slipped consisted of a patch of ice measuring inches by inches or yards by yards is unknown and unproven, as is whether it existed for a matter of minutes or days. That others may have slipped or slid in the area of claimant’s fall, without greater description or specificity, provides no proof as to the dimensions or duration of existence of the ice upon which claimant slipped.

Richer v State of New York (31 AD3d 943, 944 [3d Dept 2006]), instructs that:

“[C]laimant’s proof, consisting of her testimony only, did not establish to any extent that the icy condition had existed for a sufficient length of time to permit defendant to become aware of and remedy the situation (see DiGrazia v Lemmon, 28 AD3d 926, 927 [2006]; Boucher v Watervliet Shores Assoc., 24 AD3d 855, 857 [2005]; Polgar v Syracuse Univ., 255 AD2d 780, 780 [1998]). Notably, defendant’s ‘[g]eneral awareness that icy conditions may exist is insufficient to establish constructive notice’ (Boucher v Watervliet Shores Assoc., supra at 857; see Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]).”


In a similar case, Wilson v State of New York [Ct Cl, Claim No. 109148, dated July 26, 2007, Moriarty, J., UID #2007-037-502], the court stated:

“The State of New York is under a duty to maintain its property in a reasonably safe condition under prevailing circumstances (Basso v Miller, 40 NY2d 233 [1976]; Preston v State of New York, 59 NY2d 997 [1983]). The State is not, however, an insurer against all potential injuries and the mere occurrence of an accident does not establish liability, instead it must be affirmatively established by competent evidence of a breach of a duty of care (Killeen v State of New York, 66 NY2d 850 [1985]; Clairmont v State of New York, 277 AD2d 767 [2000], lv denied 96 NY2d 704 [2001]; Mochen v State of New York, 57 AD2d 719 [1977]). In claims involving an accumulation of ice and snow, the duty to exercise reasonable care “must be applied with an awareness of the realities of the problems caused by winter weather” and, “[t]hus, there must be evidence that the presence of the snow or ice created a dangerous condition which defendant knew or in the exercise of reasonable care should have known existed” (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681 [1988]). Even then, however, the failure of a landowner to remove every patch of ice and snow from a walkway following a storm does not, without more, constitute negligence (Cardinale v Watervliet Hous. Auth., 302 AD2d 666 [2003]). 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 (Boyko v Limowski, 223 AD2d 962 [1996]; Downes v Equitable Life Assur. Socy. of U.S., 209 AD2d 769 [1994]).”


In Cardinale v Watervliet Hous. Auth. (302 AD2d 666, 667 [3d Dept 2003]), the court informed: “In our view, the foregoing proof establishes nothing more than defendant failed to remove all of the snow and ice from the subject walkway, an omission that this Court previously has held does not constitute negligence (see Gentile v Rotterdam Sq., 226 AD2d 973, 974).”

While Ms. Earley-Nadler’s fall was unfortunate, she has failed to prove by a preponderance of the credible evidence that the defendant breached its duty of care. Not only has there been a failure to prove, for the reasons set forth above, that the defendant had constructive notice of the condition of which she complains, the defendant’s protocols regarding snow and ice control and removal, generally, and its efforts of March 8 and 9, 2005, specifically, have amply demonstrated that its efforts were more than reasonable, not required to be perfect, in addressing the winter conditions of the day.

The claim is hereby dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.


February 18, 2009
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims