New York State Court of Claims

New York State Court of Claims

MADIA v. THE STATE OF NEW YORK, #2009-045-503, Claim No. 113699


Synopsis


Trial decision slip and fall on water in a vestibule.

Case Information

UID:
2009-045-503
Claimant(s):
DEBORAH ANN MADIA
Claimant short name:
MADIA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113699
Motion number(s):

Cross-motion number(s):

Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Frank X. Kilgannon, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: John L. Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 23, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

A bifurcated trial concerning the issue of liability only was held in this matter on December 16 and 18, 2008. The subject claim arose on February 14, 2007 at approximately 11:00 a.m. when claimant, Deborah Ann Madia, slipped and fell inside a vestibule located at the Campus Center building at the State University of New York at Old Westbury (SUNY) campus.


On the date of the accident claimant was a student at SUNY and was scheduled to attend a class that day at the SUNY campus. She testified that on the morning of the accident it was snowing and that she was aware of the SUNY inclement weather policy. Prior to leaving her home that morning, claimant phoned the SUNY event hotline and watched NEWS 12 on the television in order to determine if classes were canceled that day. She learned that there was a delayed start to classes that morning. Claimant also testified that she contacted James Walker Llana, Dean of the SUNY School of Arts and Sciences prior to leaving for school. He allegedly informed claimant that school was open.[1] However, on cross-examination claimant conceded that she made the phone call to Dean Llana after she had already left for school. Claimant also testified that she suffers from an illness called Reflex Sympathetic Dystrophy Causalgia Type II. Claimant explained that this disability affects her right limb and causes electrical shocks to travel up and down her arm. She stated that her condition does not impact her ability to walk however, she does travel by an Able Bus to get to the SUNY campus. On the date of the incident claimant boarded an Able Bus at approximately 8:50 a.m. When she arrived at school approximately one hour later she learned that classes were cancelled. She was unable to re-board the Able Bus at that time as that would be against the Able Bus regulations. Ms. Madia explained that she then entered the Academic Village building at SUNY where she sought out a police officer in order to make a phone call. She spoke with detective Tom Lawson, who informed her that classes had been cancelled approximately fifteen minutes or so before she arrived. Ms. Madia then contacted the Able Bus company to arrange for an earlier return trip home. Ms. Madia then proceeded to walk to the Campus Center because she felt it was a more preferable place to wait for the bus. She described the weather at the time as snowy, windy, blustery and cold. She testified that there was snow on the ground but that she was able to walk behind a small school snowplow that cleared the walkway for her. When she arrived at the Campus Center she entered the building through the Bursar’s entrance. She described the entrance as having a set of glass doors which permitted access to a vestibule and then another set of glass doors which permitted access into the building. Ms. Madia testified that she opened the first set of doors, took one step into the vestibule and “due to the snow, the ice and the weather slipped.” [2] She further explained that she fell backwards and landed on her back towards her left side. She also testified that she did not observe the floor prior to her accident but that after she fell she observed snow and ice on the concrete or tile floor. She stated that she was wet as a result of the fall. Ms. Madia described the vestibule as being “filled with just slush, ice and snow.” She further elaborated that when she fell she was “immersed” in water, slush, snow and ice which caused her to be “soaking wet.” She stated that there was no mat either outside the first set of doors or inside the vestibule. Ms. Madia gave a further description of the outside doors as being under a breezeway which would protect a person from the weather. Photographic evidence depicts the breezeway as an overhang which covered the outside of the Bursar’s entrance doors as well as a significant amount of space in front of the Bursar’s entrance doors (see Def Exh H ). Ms. Madia explained that the breezeway prevented rain from falling down in the area underneath it.

The meteorological evidence established that light snow began falling late in the evening on Tuesday, February 13, 2007 and then mixed with sleet and freezing rain during the early morning hours of February 14, 2007 (see Def Exh G). On February 14, 2007, there was a mixture of heavy sleet and freezing rain that continued through noontime before ending as light snow (see Def Exh G). Ice storm warnings were issued between 10:00 a.m. and 10:15 a.m. on February 14, 2007 (see Def Exh G). Precipitation totals between 7:00 a.m. and 1:00 p.m. on February 14, 2007 were between .50 and .75 inches (see Def Exh G). According to the February 2007 Climatological Data Report on February 14, 2007, 1.05 inches of precipitation and .5 inches of snow and ice were recorded at Islip LI MacArthur Airport (see Def Exh F). The low temperature for the day was 18° F and the high temperature was 35° F degrees (see Def Exh F).

Basil Karageorge, a twenty-two year veteran officer with the SUNY campus police force, testified that he was on duty on the date of claimant’s accident. He stated that he was on patrol on February 14, 2007 and that he responded to the scene of the claimant’s accident sometime around 11:00 a.m. He testified that he walked up to the Bursar’s entrance of the Campus Center and saw claimant lying on the floor in the vestibule between the two sets of doors at that location. Officer Karageorge stated that he recognized Ms. Madia because he had come to know her from being on campus and from talking to her from time to time. He asked claimant if she was okay and she informed him that she was hurt. Officer Karageorge called his office, requested an ambulance and covered Ms. Madia with his jacket. He stated that it was snowing and there was snow and ice on the ground at that time. He could not recall how heavy it was snowing or if he had walked through the snow when he responded to the accident. He testified that he did not recall the condition of the vestibule floor or if there was a mat on the floor at the time of the incident. Officer Karageorge did fill out an incident report and an injury report memorializing claimant’s accident (Def Exh A and B). Neither report indicated whether there was snow or ice on the vestibule floor. Officer Karageorge testified that if he had observed snow and ice on the floor of the vestibule it would be recorded in his report. He also testified that he filled out his report with exactly the information he received from claimant. Officer Karageorge waited with claimant until the ambulance came. He also stated that he was unaware of any other accidents at the vestibule location on the date of the accident prior to claimant’s fall.

Susan Mundy, the Director of the SUNY Student Health Center, testified that on the date of claimant’s accident she received a call from the University Police that nurses were needed at the Campus Center because a student was injured. The University Police drove her and another nurse, Helen Lau to the Campus Center. She described the weather as snowy, rainy, windy and very cold at that time. When she arrived at the Campus Center she observed claimant lying down on a mat on the floor in the vestibule. She described claimant as lying on her left side appearing to be in pain. She testified that the vestibule floor was clear of snow, ice, dirt and liquid at that time.

Michael Kinane, Assistant to the President for Advancement, testified that one of his responsibilities is to provide notification to students and faculty of class delays and cancellations due to inclement weather. Mr. Kinane stated that past practice has been that once he learns from the Provost Vice President of Academic Affairs that classes are cancelled he begins the notification process. He explained that there is no particular order in which the notifications are made but the standard practice would be to update the website, contact television and radio stations, update the event hotline and send an e-mail to students and faculty. Although he did not recall all the notifications he made as a result of the February 14, 2007 storm or the order in which they were made, he did recall sending an e-mail at 10:57 a.m. to faculty and staff announcing the cancellation of classes (Cl Exh 9). Mr. Kinane also testified that the Emergency Response Plan (Cl Exh 3), the Codes and Policies (Cl Exh 5) and Campus Policy Concerning Inclement Weather (Cl Exh 8) are all available on the university’s website.

Thomas Lawson, a detective in the SUNY police force testified on behalf of the State. He stated that he spoke with claimant on the morning of her fall. At that time he was stationed in the Academic Village building communications room which is used for interaction with the public. Claimant came to the window of the communications room and asked Detective Lawson if classes were cancelled. Detective Lawson informed claimant that classes had been cancelled approximately fifteen minutes earlier. He testified that there was a 10:33 a.m. entry in the police blotter indicating that classes were cancelled for the day. Claimant then used the phone and informed Detective Lawson that she was going to the Campus Center to wait for her bus. Detective Lawson remarked to claimant that it was not such a great idea to walk over to the Campus Center because of the weather. Claimant informed him that she preferred to wait at the Campus Center and then left.

Walters Kimmins, Assistant to the President at SUNY, had no first hand knowledge of the accident and no independent recollection of the February 14, 2007 snowstorm. He testified generally that he is responsible for the maintenance and upkeep of the 605 acre campus which includes snow removal. He stated that he is always on campus in the event of a snowstorm. He testified that if classes are to be cancelled on any particular day then the same procedures are always followed. The Provost Vice President will confer with the university police and often Mr. Kimmins. They then make a recommendation to the president. The decision to cancel classes is ultimately made by the president of the University. If classes are to be cancelled, that decision is conveyed to the Director of Public Relations who makes the notifications to the media, the university website and the event hotline. Mr. Kimmins testified that only the president has the authority to cancel classes and does not have the authority to close the campus. He stated that the authority to close the campus rests solely with the New York State Governor.

Mr. Kimmins testified that he did not specifically recall the February 14, 2007 storm or any action he and his staff took with respect to snow removal on that date. However, he stated that, generally, in the event of a snowstorm he would arrange for overtime, if necessary, and would ensure that his vehicles were prepared for the day. He would specifically make sure that salt and sand were available for use. He and his staff would then start to clear the snow as soon as it started. Mr. Kimmins stated that his staff consisted of 18 people in maintenance, 4 people for the grounds and 25 cleaners. The cleaners were responsible for the interior of the buildings as well as the walkways leading out 50 feet or so from the doorways to the buildings. He explained that the clearing priorities include the main entrance which leads to the Campus Center and the parking lots. In the event of a snowstorm, the cleaners would clear the landings in front of the building, the sidewalks and the aprons leading to the entrance of the buildings. The cleaners also monitor the insides of the buildings and mop up any excess water. He explained that the cleaners are always responsible for inspecting and cleaning the doorways regardless of whether or not there was a snow event.

Mr. Kimmins testified that it was not general procedure to place mats outside the entrance doors, although some buildings do have mats outside the buildings. He believed that there was usually a mat on the vestibule floor where claimant fell but that he did not know whether there was a mat present at the time of claimant’s fall. Additionally, Mr. Kimmins testified that cautionary wet floor signs are used on the campus whenever there is an accumulation of water.

Mr. Kimmins testified that he was aware of no previous complaints of water, ice or snow accumulation in the subject vestibule prior to claimant’s fall and that there were no other accidents at that location. Mr. Kimmins described the vestibule as measuring approximately eight foot square, with two doors leading into the vestibule from the outside and then two interior doors leading to the inside of the building. He stated that the Bursar’s entrance to the Campus Center was an infrequently used entrance. He described the overhang outside the entrance as about ten feet of building which hangs over the sidewalk in front of the entrance.

Defendant has a duty to act as a reasonable person would in maintaining its premises in a reasonably safe condition (Basso v Miller, 40 NY2d 233 [1976]; Preston v State of New York, 59 NY2d 997 [1983]). In order to recover damages for a breach of this duty, claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take appropriate remedial action (Gordon v American Museum of Natural History, 67 NY2d 836,837 [1986]). “To impose liability for an injury proximately caused by water, snow or ice tracked into a building, a defendant must have either created the dangerous condition, or had actual or constructive notice of it, and a reasonable time to undertake remedial action” (Ruic Roman Catholic Diocese of Rockville Center, 51 AD3d 1000 [2d Dept 2008]; Williams v JP Morgan Chase & Co., 39 AD3d 852 [2nd Dept 2007]; Ford v Citibank, N.A., 11 AD3d 508 [2d Dept 2004]; Friedman v Gannett Satellite Info. & Network, 302 AD2d 491 [2d Dept 2003]).

Claimant has failed to establish that defendant had created a dangerous condition in the vestibule. Likewise, claimant has also failed to prove that defendant had either actual or constructive notice of a dangerous condition in the vestibule. The evidence established that on February 14, 2007 there was a mix of sleet, snow and freezing rain which began prior to claimant’s accident and continued without interruption for a time period subsequent to her accident. General awareness that snow and or ice may be present is legally insufficient to constitute notice of the particular circumstances that causes a person’s injury (see Piacquadio v Recine Realty Corp., 84 NY2d 967, 968 [1994]; Solazzo v New York City Transit Authority, 6 NY3d 734, 735 [2005]; Kaplan v DiPetro, 51 AD3d 730 [2d Dept 2008]). There was no record of any prior accidents or complaints regarding the vestibule in question. Additionally, claimant did not observe the vestibule floor prior to her fall. Although claimant alleges that she was immersed in water after she fell, there was no indication how long the transient condition on the vestibule floor was present prior to claimant’s fall.

A property owner will not be held liable for injuries sustained as the result of a snow or ice condition occurring during an ongoing snowstorm or for a reasonable time thereafter (Solazzo v New York City Transit Authority, 6 NY3d 734 [2005]; Valentine v City of New York, 86 AD2d 381 [1st Dept 1982], affd 57 NY2d 932 [1982]). When the alleged slippery condition is said to be caused by moisture tracked indoors during a storm, a property owner is not required to provide a constant, ongoing remedy (Rogers v Rockefeller Group Intl., Inc., 38 AD3d 747

[2d Dept 2007]; Hackbarth v McDonalds Corporation, 31 AD3d 498 [2d Dept 2006]; Ruck v Levittown Norse Assoc., LLC, 27 AD3d 444 [2d Dept 2006]). Although the court was presented with conflicting evidence regarding the existence of a mat on the floor of the vestibule, the court credited Ms. Mundy’s description of a mat on the vestibule floor at the time of claimant’s fall. A property owner is not required to cover all the floors with mats or to continuously mop during an ongoing storm (Rogers v Rockefeller Group Intl., Inc., 38 AD3d 747 [2d Dept 2007]; Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511 [2d Dept 2005]). Thus, the court finds that claimant has also failed to establish that defendant did not take appropriate remedial measures in the vestibule.

Claimant’s remaining contentions concerning defendant’s failure to timely notify and cancel classes are without merit. Claimant was aware that there was an ongoing snowstorm and that classes were delayed on February 14, 2007. The evidence established that ice storm warnings were issued between 10:00 a.m. and 10:15 a.m. on that date. Defendant issued an announcement that classes were cancelled at 10:33 a.m. SUNY staff and faculty were notified of the cancellations via e-mail at 10:57 a.m. Unfortunately, claimant was already en route to school when the decision and the notifications were made to cancel classes. Nevertheless, negligence cannot be found against defendant based on such an attenuated theory of liability.

Therefore, based upon the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, her claim against defendant in this action. Accordingly, the claim is hereby dismissed in its entirety. Any motions upon which the Court has previously reserved or which remain undecided are hereby denied.

The Clerk of the Court of Claims is directed to enter judgment accordingly.

June 23, 2009
Hauppauge, New York

HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims




[1].James Walker Llana, Dean of the School of Arts and Sciences testified that he is not involved in making the determination to cancel classes due to inclement weather. He also testified that he has no recollection of February 14, 2007 and does not recall having a telephone conversation with Deborah Ann Madia.
[2].All quotes are from the trial transcript.