New York State Court of Claims

New York State Court of Claims

HARDY v. THE STATE OF NEW YORK, #2009-041-511, Claim No. 112485


Claim alleging that defendant’s negligence caused claimant to slip and fall on ice is dismissed after trial where claimant failed to prove defendant either created or had notice of allegedly dangerous condition; cause of action for medical malpractice dismissed for lack of expert testimony.

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: Thomas R. Monjeau, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 28, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


At about 7:30 p.m. on December 26, 2004, while in the north yard at Clinton Correctional Facility (Clinton), Victor Hardy (claimant) slipped and fell on ice, injuring his left ankle. His claim alleges that the defendant was negligent in keeping the prison yard free of ice and, additionally, that the defendant was negligent in providing him timely or adequate medical care for the injuries he sustained in the fall.

At trial, claimant was his only witness, largely concentrating his testimony on the circumstances of his fall and alleging defendant was negligent in failing to properly maintain the “flats” area of the north yard at Clinton at the time of his fall.

As to defendant’s medical treatment of claimant, no expert testimony was provided.

Conclusory allegations of medical malpractice, unsupported by competent evidence establishing its essential elements, are insufficient to state a prima facie case. Through a medical expert, it must be shown that defendant deviated from the standard for good and acceptable care in the locality where the treatment occurred and that the deviation was the proximate cause of the injury (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]; Yamin v Baghel, 284 AD2d 778, 779 [3d Dept 2001]; Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]).

“Where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case” (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]).

The fact that claimant proceeded pro se does not excuse the need for expert medical opinion to demonstrate a deviation from the applicable standard of care (Duffen v State of New York, 245 AD2d 653, 653-654 [3d Dept 1997], lv denied 91 NY2d 810 [1998]).

Given that no expert testimony was provided detailing the standard of medical care defendant owed claimant, or that the medical care actually provided to claimant by defendant deviated from the duty of care owed claimant, that portion of the claim alleging the defendant failed to provide claimant timely or adequate medical care is dismissed.

The “flats” area of the north yard at Clinton is the flat portion of a large, open, outdoor recreation yard at the facility. It is unpaved, with a sand base. Claimant testified that he fell at a spot approximately 20-25 feet from where he entered the yard and that he was about 10 feet from a phone area where inmates would place outgoing calls. In the area of claimant’s fall no walkways, paved or otherwise, exist. The claimant described the “flats” as being covered in “sheer ice.” No testimony or proof was provided as to the dimensions of the ice upon which claimant fell, the dimensions of ice covering the flats (although in his claim, admitted as Exhibit 5, claimant alleges having fallen in the “prison yard flat, which consists of over 20 yards of sheer ice”), or what percentage or portion of the entire “flats” were covered by ice. No characteristics of the ice were described, including appearance, dimensions or depth, nor was any evidence provided concerning the length of time the ice upon which claimant slipped had existed. No proof of any other falls at that location or during that time was provided.

The defendant’s sole witness, Correction Officer Michael Donah, responsible in December 2004 for north yard maintenance at Clinton, testified about the daily protocols undertaken for wintertime maintenance of the yard. These protocols included the daily inspection of the yard by work crews and the employment of plowing, shoveling, and the application of sand and salt in the yard, as needed. Additionally, a large, galvanized garbage can was located by the entry gate into the yard, and it contained a salt/sand mixture for use by anyone (including inmates), and that the can was replenished in the morning, if depleted during the previous day and night.

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 [his] 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]).”
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]).”

The standard of reasonable care under the circumstances “must be applied with an awareness of the realities of the problems caused by winter weather” (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681 [1988]; see McGowan v State of New York, 41 AD3d 670, 671 [2d Dept 2007]).

Finally, in Cardinale v Watervliet Hous. Auth. (302 AD2d 666, 667 [3d Dept 2003]), the court held that: “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.”

Not only is the record devoid of any proof demonstrating that defendant had either actual or constructive notice of the condition which caused claimant’s fall or the condition of the specific area where claimant fell, the Court finds the steps taken and protocols utilized by the defendant to address a large, open, outdoor area during wintertime months in northern New York, to be reasonable. Further, it would be unreasonable, and defendant has no legal obligation, to require that each and every part of the “flats” be free of ice, for months at a time, each and every minute the north yard is made available for inmate use.

For all of the foregoing reasons, the claim is dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

October 28, 2009
Albany, New York

Judge of the Court of Claims