Delivery exchange at Sing Sing parking lot. Defendant 80% liable and driver 20% liable for his fall on ice.
|Claimant(s):||DARRELL D. STEEN|
|Claimant short name:||STEEN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Terry Jane Ruderman|
|Claimant's attorney:||DeANGELIS & HAFIZ
By: Mark S. DeAngelis, Esq.
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Dian Kerr McCullough, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 2, 2010|
|See also (multicaptioned case)|
Claimant seeks damages for injuries he sustained on March 21, 2007 at Sing Sing Correctional Facility (Sing Sing) when he slipped and fell on ice in the maintenance parking lot (Lot) at Sing Sing. Claimant, a truck driver for Brookfield Metals (Brookfield), was en route to the Lot where he was to pickup a large full dumpster and unload an empty replacement bin. Paul Lopes, a Maintenance Supervisor I at Sing Sing, was involved in the dumpster exchange and was the only witness to claimant's fall. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
On March 17, 2007, there was a snowstorm. Snow was cleared and pushed into mounds at the Lot's perimeter. It is undisputed that, on March 21, 2007, there was ice covering areas of the Lot and claimant fell on the ice. The testimony of claimant and Lopes presents two vastly different versions of the events surrounding claimant's accident. Liability hinges upon the assessment of credibility of these two witnesses.
Claimant testified that during his employment with Brookfield, he had been to Sing Sing on similar assignments approximately eight to twelve times prior to the accident and he always followed established procedures. On March 21, 2007, claimant arrived at Sing Sing at around 8:00 a.m. The weather was very chilly, but there was no precipitation. After getting clearance from the facility guards, claimant proceeded to the Lot where he observed that the ground was a "complete sheet of ice" and there was a mound of snow pushed to the top edge of the Lot (T:22).(1)
Claimant parked his truck and Lopes arrived between 8:15 a.m. and 8:20 a.m. According to claimant, Lopes acknowledged that the conditions "looked a little rough * * * with the ice * * * but he [Lopes] had to get the cans out of there" (T:24). Lopes related that the road had not been salted yet because they started late that morning and that a salt truck was "down by the river" and it would be a "little while" before the salt truck arrived (T:25). Lopes never advised claimant to wait until the salt truck arrived or to leave without completing his assignment. Lopes communicated to claimant that he would need help getting the bin out; therefore Lopes jumped into a tractor that was parked in the Lot and attempted to assist. Lopes used the tractor's bucket to scrape the ice off the ground. After scraping the ice for 20 to 25 minutes, Lopes motioned to claimant to enter the area. Claimant backed his truck into the designated space and placed an empty bin on the ground. This maneuver was uneventful and took about 15 minutes.
Claimant then turned his truck to proceed uphill and retrieve the loaded dumpster. Before reaching the loaded bin, the tires of claimant's truck started spinning on the ice and claimant stopped his vehicle. Lopes waved to claimant to wait. Lopes then maneuvered the tractor to pull out the bin. After approximately 10 minutes, claimant exited his truck to walk to the back of his vehicle and hookup the bin. Claimant testified that he was holding onto the side of his truck as he slowly walked to its rear. He explained that he was trying to keep his balance because "there was still some icy spots on the ground" (T:31). Claimant hooked the cable and then, as he turned around to walk back towards his truck's door, he slipped on the ice (T:32). Claimant concededly observed the icy conditions when he exited his truck (T:41) and Lopes did warn claimant to be "careful on the ice" (T:42).
Claimant described the thickness of the ice in general as one inch and estimated that, in the area of his fall, Lopes had shaved it down with the backhoe to a level of approximately one-half inch (T:33). Claimant remained on the ground five to six minutes. Lopes offered to telephone claimant's boss. They made the call and claimant climbed back into his truck. Lopes advised claimant to "take it easy" and commented "whatever you do don't sue the State because we have no money" (T:37). Claimant replied he was going to the doctor because his shoulder hurt. Claimant did not have any other jobs scheduled that day.
Paul Lopes testified that he has been employed at Sing Sing for 14 years and is currently a Maintenance Supervisor I. In his position, he supervises a civilian staff of 7 and an inmate staff of 15. In 2007, Lopes had been a Maintenance Supervisor I for more than 10 years. Nonetheless, Lopes maintained at trial that it was not until his examination before trial in 2009 that he first learned of Sing Sing's policies and procedures regarding snow and ice removal (Ex. 7; T:84). These policies and procedures are set forth in the New York State Department of Correctional Services Facility Operations Manual. The manual expressly provides that "[t]he facility is responsible to maintain the roadways, stairs/sidewalks and parking areas in the event of snow/ice storms" and that "[d]uring normal work hours, 7:30 A.M. to 3:30 P.M., Monday to Friday, the Maintenance Supervisor will monitor the weather and road conditions" (Ex. A). Contrary to these mandates, Lopes testified at trial that he does not concern himself with weather forecasts and conditions unless snow is falling.
On March 21, 2007, Lopes arrived at Sing Sing between 6:00 a.m. and 6:30 a.m. and parked in the Lot. He claimed that, from where he had parked, he could not see that the ground was icy because a line of cars blocked his view. He further stated that he was "not on State time" yet (T:93) and that determining if the Lot was icy that morning was not a priority (T:103). On cross-examination, Lopes conceded that he had engaged in more than 16 hours of overtime for snow removal from March 16 through March 18, 2007. Accordingly, Lopes had to admit that he knew there had been melting and refreezing in the days prior to claimant's fall and that ice could have formed from the melting mounds of snow around the perimeter of the Lot. Ultimately, he conceded that the parking lot was icy on the morning of claimant's accident.
Lopes repeatedly insisted at trial that he did not know that claimant was coming to the facility on March 21, 2007 to exchange dumpsters in response to a call made by Lopes the preceding day. Lopes was adamant in his testimony that, if he had known that claimant was coming that day, Lopes would have made sure that the vehicles in the Lot were out of the way and then he would have noticed that the ground was icy and would have treated the condition prior to claimant's arrival. In sharp contrast to Lopes' trial testimony, he testified at his examination before trial, that he was expecting a truck to arrive on March 21, 2007 to exchange dumpsters (Ex. 7, p 30, l 20). Lopes' contradictory testimony on this critical issue undermines the Court's confidence in the accuracy of his recollections.
Lopes maintained at trial that when he arrived at the Lot, he observed that it was icy near the dumpster, and therefore he radioed for a salt truck. While he anticipated that it would take 30 to 35 minutes for the salt truck to arrive, he testified at trial that he had advised claimant that it would only be a few minutes until the truck arrived.(2) Lopes conceded at trial that he had made a misrepresentation to claimant. Lopes never told claimant to wait for the truck; rather Lopes just informed claimant that a truck was on its way.
Lopes stated that he observed claimant's back tires spinning and then claimant got out of the truck and fell. Contrary to claimant's testimony, Lopes maintained that he never spoke with claimant's employer after claimant's fall. Lopes estimated that it was only 25 to 30 minutes from the time he arrived at the Lot until he left.Analysis
It is well established that "[t]he State - - just as any other party * * * is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived" (Flaherty v State of New York, 296 NY 342, 346). The State is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851). Negligence must be proven (see Mochen v State of New York, 57 AD2d 719) and the reasonable standard of care must be applied with an appreciation of the problems caused by winter weather (see McGowan v State of New York, 41 AD3d 670). The mere failure to remove all snow and ice from a parking lot or walkway does not constitute negligence, unless it is shown that defendant's efforts either created or increased the hazard by its improper or negligent snow removal (see Wheeler v Grande'Vie Senior Living Community, 31 AD3d 992; Nowaski v City of New York, 19 AD3d 467).
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence established that on March 21, 2007, defendant had notice of a dangerously icy condition in its Lot and knew that claimant would be arriving at Sing Sing that day to exchange dumpsters in the Lot and that therefore claimant would be at risk due to this condition. The Court further finds that defendant was negligent in discharging its duties to maintain this area in light of the conditions as they were known to defendant. In reaching its conclusion, the Court notes that critical to its findings was the Court's determination that Lopes was not forthright in his testimony and that much of his testimony was calculated and not believable.
Incredibly, despite Lopes' position as a Maintenance Supervisor for more than 10 years at the time of claimant's accident, Lopes testified that he was unaware at that time of Sing Sing's operations manual detailing the duties to monitor the weather and maintain the parking areas in the event of snow and ice. Further, he arrogantly testified that when he arrived at the Lot on the morning of claimant's accident, immediately before he was "on State time," he could not see that the ground was icy because a line of cars blocked his view and that whether the Lot was icy was not a priority at that time. Lopes also testified that he does not concern himself with weather forecasts and conditions unless snow is falling. Significantly, Lopes had engaged in more than 16 hours of overtime for snow removal in the days prior to the accident and therefore he had to admit that he knew that there had been melting and refreezing prior to claimant's fall and ice could have formed from the melting mounds of snow around the perimeter of the Lot. It is also noted that Lopes' trial testimony was completely inconsistent with his examination before trial testimony on the critical issue of whether he knew that claimant was due to arrive at the Lot on March 21, 2007. Lopes testified at trial that, had he known claimant was en route, Lopes would have cleared the Lot of vehicles and then noticed the icy condition and treated it before claimant's arrival.
The Court finds that Lopes knew that claimant was coming to the Lot in response to Lopes' telephone call the preceding day and that, prior to claimant's arrival, Lopes had or should have had notice of the icy condition in the Lot. The Court further finds that given Lopes' knowledge and based upon his own testimony regarding his duties, Lopes should have cleared the Lot of vehicles prior to claimant's arrival and then treated the icy condition. Thus, the Court finds that Lopes had actual and constructive notice of the condition in the Lot. Further, the Court finds that Lopes acted negligently in discharging his duties as Maintenance Supervisor in failing to have the Lot cleared of ice before claimant's arrival and in exacerbating the condition by his use of the tractor's bucket to ineffectively attempt to scrape the ice off the ground.
Claimant, however, is not without fault in bringing about his own accident. Indeed, claimant exited the truck and attempted to walk to its rear while admittedly aware of the presence of ice in the area. Notably, claimant's tires were spinning on the ice before he exited his truck and he observed some icy spots on the ground before proceeding to the rear of the truck. Lopes also warned claimant to be careful. Nonetheless, claimant proceeded in light of these conditions.
Accordingly, the Court apportions 80 percent of the fault to defendant in causing claimant's accident and apportions 20 percent of the fault to claimant in causing his accident. All motions not previously ruled upon are DENIED. The claim will be scheduled for a trial on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
July 2, 2010
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims
1. References to the trial transcript are preceded by the letter "T."
2. On March 3, 2009, Lopes prepared a statement regarding claimant's accident (Ex. 1). He did not include any reference to advising claimant that a salt truck would arrive in a few minutes.