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
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 ; see Tatta v State of
New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 ;
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 ).
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
; 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
DiGrazia v Lemmon (28 AD3d 926, 927 [3d Dept 2006], lv denied 7
NY3d 706 ), reminds that claimant is:
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 ; Boucher v Watervliet
Shores Assoc., 24 AD3d 855, 857 ; Polgar v Syracuse Univ., 255
AD2d 780, 780 ). 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 ).”
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
; see McGowan v State of New York, 41 AD3d 670, 671 [2d Dept
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.