|Claimant short name:||BENEDICT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JEREMIAH J. MORIARTY III|
|Claimant's attorney:||Gallo & Iacovangelo, LLP
By: David D. Spoto, Esq. and
John C. Palermo, Esq.
|Defendant's attorney:||Hon. Andrew M. Cuomo
New York State Attorney General
By: Richard B. Friedfertig
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 13, 2010|
|Official citation:||89 AD3d 1404 (2011)|
|See also (multicaptioned case)|
Claimant, Dudley Benedict, seeks to hold Defendant liable for injuries he allegedly sustained on March 6, 2003 at approximately 9:00 A.M. when he slipped and fell on snow and ice while walking in a parking lot located on the Wellsville campus of the State University College of Technology at Alfred (Alfred State). The trial was bifurcated and this decision addresses solely the issue of liability.
Claimant testified that on the day of the incident he was employed as a vocational carpentry instructor by Orleans/Niagara Board of Cooperative Educational Services (BOCES) in Medina, New York, and was acting as an advisor to students participating in an annual competition for Vocational Industrial Clubs of America (VICA) at the Alfred and Wellsville campuses of Alfred State. Claimant, with thirty students and two other advisors, traveled by bus from the BOCES Center to Wellsville, arriving at approximately 8:00 A.M. He described the weather conditions that morning as cold with intermittent light snow. The bus was parked in a lot adjacent to the Activities Center(1) where Claimant assisted the students in unloading equipment for the competition while observing that the surface of the lot was "snow covered and slippery,"(2) causing some of the students to slip. Claimant walked to the Activities Center to register students for the competition and later exited the building to walk through a parking area adjacent to the Butler-Larkin Building. As he walked in a northeasterly direction through the unoccupied Butler-Larkin parking lot Claimant slipped and fell on "black ice", allegedly sustaining a serious back injury. Claimant was able to regain his footing and walk to his destination where he was examined briefly by one of his fellow advisors, an emergency medical technician, and he then continued on with his advisory duties for the remainder of the day. There were no witnesses to the accident and Claimant did not report the incident to Alfred State officials. Claimant filed an Incident Report with BOCES (Claimant's Exhibit 14) reporting at that time and later testifying at trial that he fell on untreated icy pavement at the Wellsville campus of Alfred State.
On cross-examination, Claimant admitted that he followed the shortest route to the Butler-Larkin Building rather than the traveled path although he was aware that the pavement was slippery and he did not report the incident to campus officials because "he did not think it was a big deal." It is his claim that Defendant is liable for not properly treating the parking lot surface with sand, salt or other melting agent.
Claimant produced five witnesses who testified that they were on the Wellsville campus at approximately 9:00 A.M. on March 6, 2003 in connection with the VICA competition and observed that the walkways and parking surfaces were snow covered, which is confirmed by photographs in evidence.(3) The witnesses also concurred that the surfaces were slippery and some admitted falling.
According to the National Climatic Data Center's report, also known as a NOAA report(4) , for March, 2003, the weather on March 6th was light snow which began falling before 8:00 A.M. and continued at least through the time of Claimant's accident. Also for a seventeen-hour period prior to the accident the temperatures ranged from 22F to 5F, with the average being 14F. The weather on March 5, 2003, the day before the accident, was rain and snow with a trace to 0.01 inch of precipitation(5) and on March 6, 2003, between the hours of 8:00 A.M. and 9:00 A.M. there was a trace to 0.01 inch of precipitation. The expert meteorologists for the respective parties agreed that measurable snow had fallen in the early morning hours that day. Based upon this evidence, Defendant urges the Court to adopt the "storm in progress" doctrine. While perhaps the conditions could be labeled a weather event, it does not equate to an event which would cause the Court to invoke or give credence to the storm in progress doctrine. As a consequence, the Court rejects the storm in progress defense proffered by Defendant.
Based upon the foregoing, the Court is persuaded that Claimant did slip and fall on snow and ice the morning of March 6, 2003 at approximately 9:00 A.M. The facts persuading the Court include Claimant's testimony regarding his observation of ice after his fall and the testimony of witnesses who indicated that there were slippery conditions causing some of them to slip or fall during the same time frame. However, the fact that Claimant slipped and fell on snow and ice does not necessarily implicate Defendant's liability.
Richard Buckmaster, a 36-year employee working as a general mechanic and acting maintenance supervisor for the Wellsville campus of Alfred State responsible for all outside grounds maintenance, including snow and ice removal, and Gary Brown, maintenance assistant, testified, respectively, regarding campus snow and ice removal protocols, and to the specific maintenance steps performed the morning of the accident. Although neither witness had a specific recollection of events occurring on March 6, 2003, they stated that the normal procedure was to remove snow and then apply a salt and sand mixture as necessary.
Mr. Buckmaster testified that there was a snow removal policy for Alfred State which outlined the general snow removal strategy and established priorities for the order in which campus areas are to be addressed, primarily directed at the main campus in Alfred. Basically, he and Mr. Brown relied upon weather reports and a visual assessment of the condition of the campus to determine plowing and salting/sanding requirements for the Wellsville campus. Mr. Buckmaster recalled, and their timecards confirmed, that on March 6, 2003 he and Mr. Brown reported for work at 6:00 A.M. rather than the normal start time of 7:00 A.M. to attend to the cleanup of snow and ice in anticipation of the VICA event, noting that the State only authorized overtime for snow removal. There were no weather related complaints to Mr. Buckmaster on March 6, 2003 and, more particularly, no complaints regarding the condition of the Butler- Larkin parking lot where Claimant fell.
Claimant called James Kozlowski, a cleaner employed at the Wellsville campus, to testify regarding his activities on March 6, 2003. Mr. Kozlowski reported to work at 7:00 A.M. to find ongoing precipitation in the form of snow, sleet and ice which necessitated that he clear the precipitation away from the entrance to the Activities Center and treat the surface with a salt/sand mixture. He ran out of the mixture about 10:30 A.M. and was advised by Gary Brown that there was no more available at that time. Mr. Buckmaster countered during his testimony that on the day of the accident there was an ample supply of the salt/sand mixture on the Wellsville campus and he recalled using the material that morning to treat parking and walking surfaces.
Claimant called Gary Passero who testified that he is a Licensed Professional Engineer and familiar with the design and construction of commercial parking lots. He also practices forensic engineering investigating slip and fall accidents and was retained by Claimant in 2007 to review the incident of March 6, 2003. Mr. Passero testified that after examining various documents, including photographs, maps and surveys, he prepared a report dated October 31, 2007 concluding that the parking lot where Claimant fell does not drain properly by reason of faulty design and construction which fails to comport with accepted engineering standards. On cross-examination Mr. Passero indicated that he first visited the site to inspect the area where Claimant slipped and fell approximately two weeks prior to trial and that his opinions are based upon the condition of the parking lot in 2007. He also admitted that he was not familiar with the condition of the parking lot on the day of Claimant's accident and was unaware of any reported complaints of poor drainage or slip and fall incidents occurring prior to that date. Therefore, Mr. Passero's conclusion that defective drainage was the cause of the alleged ice accumulation is speculative and without probative value. Nor can the Court draw any inference from the proof offered that the drainage system as designed was not functioning properly at any time prior to the accident.
Craig Clark, Dean of the Wellsville campus since 1996, testified that on March 6, 2003 there were approximately 250 high school students and 200 adults on campus for the VICA competition, in addition to college faculty and students. Mr. Clark did not receive any reports of icing conditions or people slipping and falling on that day and he is unaware of any prior complaints of drainage problems in the parking lot where Claimant fell. He confirmed that there is no written snow removal policy for the Wellsville campus and the school does not maintain records of snow and ice removal activities.
Heather Knolhoff, a New York State Trooper since October, 2006 and formerly a seven-year officer with the Alfred State campus police force, testified that she was on duty on the date of Claimant's accident. She responded to a report of an injured student on the Wellsville campus at approximately 8:00 A.M. on the morning of March 6, 2003. The student, Michael Lewis, testified at trial that he had just arrived on campus for the VICA competition when he tripped and fell on a snow covered sidewalk, suffering a head injury. Officer Knolhoff interviewed Mr. Lewis, who indicated that he tripped over three students who fell on the sidewalk in front of him. At the scene of Lewis' accident, Trooper Knolhoff felt the crunch of a salt/sand mixture under her feet and observed snow melt patterns, concluding that the sidewalk had been treated and was safe for pedestrian traffic.
At the end of trial, Claimant requested that a missing witness inference be taken against Defendant for its failure to call Lawrence M. Levine, P.E., to testify at trial. Prior to trial, Defendant served an Expert Witness Disclosure indicating that Mr. Levine was retained to refute the findings of Claimant's expert and his name appeared on the trial witness list. However, the mere failure to produce a witness at trial is insufficient to justify a missing witness inference. It must be shown that a particular witness is knowledgeable about a material issue upon which evidence is already in the case, that the witness could be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party (People v Gonzalez, 68 NY2d 424 ). Claimant has failed to demonstrate that Mr. Levine would provide substantial rather than cumulative evidence favorable to him (Tweedy v Roman Catholic Church of Our Lady of Victory, 232 AD2d 630 ; Godfrey v Dunn, 190 AD2d 896 ). Also, since Defendant identified Mr. Levine as a potential witness, Claimant was not precluded from securing his presence at trial by means of a subpoena (Schittino v State of New York, 262 AD2d 824 ). Therefore, the Court declines to take such an inference.
Defendant also asserts that at the time of the accident it was not an owner or lessee of the property where the incident occurred and, therefore, owes no duty to Claimant. The record reflects that the Wellsville campus is owned by the Educational Foundation of Alfred, Inc.(Foundation) and is leased to the State University of New York for and on behalf of the State University College of Technology at Alfred pursuant to an agreement dated October 15, 1996 (Defendant's Exhibit A). While not entirely clear, it appears that the Butler-Larkin Building and parking lot were acquired by the Foundation after the execution of the lease agreement and subsequently added to the lease by an Amendment dated July 7, 2003. Nevertheless, Dean Craig Clark testified that, from the time of its acquisition, Alfred State assumed the obligation to maintain the premises, including snow and ice removal. Therefore, the evidence submitted does not conclusively establish a defense as a matter of law which would relieve Defendant from liability for the alleged dangerous condition on the premises.
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 ; Preston v State of New York, 59 NY2d 997 ). 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 ; Clairmont v State of New York, 277 AD2d 767 , lv denied 96 NY2d 704 ; Condon v State of New York, 193 AD2d 874 ). In order to establish liability in a slip and fall case, Claimant must demonstrate, by a preponderance of the credible evidence, that a dangerous condition existed; that the State either created this dangerous condition or had actual or constructive notice of the condition and failed to correct the problem within a reasonable period of time; and that this dangerous condition was a proximate cause of the accident (Gordon v American Museum of Natural History, 67 NY2d 836 ; Heliodore v State of New York, 305 AD2d 708 ; Diaz v State of New York, 256 AD2d 1010 ).
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 ). 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 ). 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 ; Downes v Equitable Life Assur. Socy. of U.S., 209 AD2d 769 ).
Claimant urges the Court to find that Defendant somehow created the accumulation of ice upon which Claimant fell by failing to adequately respond to the adverse weather conditions on March 6, 2003. However, there is no evidence that Defendant had actual notice of the icy condition at the accident site prior to Claimant's fall, nor was there any proof that Defendant created the icy condition through its snow removal operations or other activities. Indeed, there is no proof in this record of any prior accidents on this parking lot or walkway.
Where there is insufficient proof that 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, supra at 837; see Mazerbo v Murphy, 52 AD3d 1064, 1066 ). There was no factual evidence establishing the length of time ice (if any) was present on the parking surface and the witnesses agreed that on the morning in question there was a light snow fall which would have covered the ice. Thus, constructive notice could not have existed since the alleged ice would have been covered by snow. Claimant by his own testimony admitted that he did not see the ice prior to his fall. The Court concludes that Claimant has failed to prove that Defendant had constructive notice of the alleged dangerous icy condition, nor is there any proof that this was a recurring condition of which Defendant had knowledge. The fact that Michael Lewis and others may have slipped on snow or ice in other areas of the campus that morning provides no support for the conclusion that Defendant had notice of the icy condition that allegedly caused Claimant's accident or that defective drainage in the parking lot was the cause. Such proof establishes no more than a "general awareness" that outdoor areas become wet or icy during inclement weather and is insufficient to establish notice of the specific condition that allegedly caused Claimant's injury (Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 ; Stoddard v G.E. Plastics Corp., 11 AD3d 862 ). Claimant offered no proof of notice of prior incidents or complaints.
While Mr. Benedict's fall was unfortunate, he bears the burden of proving by a fair preponderance of the credible evidence that Defendant breached a duty of care (Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191 ) and he has failed in that burden. The evidence instead demonstrates that Defendant had a reasonable snow and ice removal plan and employed reasonable care under the circumstances, given the realities of the climatic condition that existed that morning. For, "[i]t is a well-settled tort principle that 'appropriate measures' are those which, under the circumstances, are reasonable" (Goldman v State of New York, 158 AD2d 845 , citing Basso v Miller, supra). Richard Buckmaster testified that the walkways and parking areas were treated with a salt/sand mixture early that morning, and Officer Knolhoff confirmed that the sidewalk where Michael Lewis fell had been treated with a snow melt mixture. There is no proof that any individual employed by Defendant was aware of the existence of the patch of ice upon which Claimant fell and there is no evidence of the length of time the alleged icy condition existed.
As the trier of fact charged with assessing the credibility of the various witnesses and evaluating the evidence, the Court finds that Claimant has failed to establish, by a preponderance of the credible evidence, that Defendant either created a dangerous condition, or that it had either actual or constructive notice of such a dangerous condition.(6)
Accordingly, the Claim is dismissed. All motions or objections on which the Court may have reserved decision or which were not previously determined are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
May 13, 2010
Buffalo, New York
JEREMIAH J. MORIARTY III
Judge of the Court of Claims
1. A map of the campus is in evidence as Claimant's Exhibit 10A and a photograph of the Activities Center taken on March 6, 2003 is in evidence as Claimant's Exhibit 12.
2. Unless otherwise indicated, all quotations are taken from the digital audio recording of the trial proceedings.
3. Claimant's Exhibits 11, 12 and 13.
4. The National Oceanic and Atmospheric Administration (NOAA) is responsible for collecting weather data which are retained in an archive maintained by the National Climatic Data Center.
5. Precipitation was measured in its water equivalent.
6. The notice of claim and the amended notice of claim (properly referred to as the claim and amended claim) state causes of action pursuant to the Labor Law of the State of New York. The Court deems these causes of action abandoned as no evidence or legal argument was presented at trial to substantiate them.