New York State Court of Claims

New York State Court of Claims
BRAUN v. THE STATE OF NEW YORK, # 2018-044-012, Claim No. 126037

Synopsis

Claim for injuries incurred in slip and fall at SUNY Binghamton campus dismissed after trial.

Case information

UID: 2018-044-012
Claimant(s): MEGAN BRAUN
Claimant short name: BRAUN
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) : The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126037
Motion number(s):
Cross-motion number(s):
Judge: CATHERINE C. SCHAEWE
Claimant's attorney: BACHU & ASSOCIATES
BY: John Epstein, Esq., of counsel
Defendant's attorney: HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL
BY: Douglas H. Squire, Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 31, 2018
City: Binghamton
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant seeks to recover for injuries allegedly incurred when she slipped and fell on March 7, 2015 while walking on campus at the State University of New York at Binghamton (BU), an educational facility owned and operated by defendant State of New York (defendant). Trial of the matter was bifurcated and held in the Binghamton District on October 16-17, 2018. This decision addresses only the issue of liability.

At trial, claimant testified that at the time of her fall, she lived in O'Connor Hall, a dormitory in the Dickinson Community. A sidewalk runs around the interior of the Dickinson quadrangle, surrounded by dormitory buildings. Claimant said that she was walking back to her dorm at approximately 2:00 a.m. on March 7, 2015 when she slipped on a patch of snow and ice and fell, breaking her leg and ankle. She said that after she fell, she moved off the wet area where she landed, but was unable to stand.

Claimant said she was returning from meeting a group of high school friends who were visiting the campus. She insisted that she had not been drinking, nor had she consumed any drugs or medications prior to the fall. It was not raining or snowing, but had snowed a few days previously. She said she had noticed that the patch of snow and ice was present for a few days, because she took that route to her classes. However, she did not think about it being there before she fell. She was wearing boots with good traction at the time.

Claimant did not remember speaking to a campus police officer after she fell. She did recall speaking to an ambulance crew, but asserted that she did not tell them she had been running. She was taken to the hospital by ambulance, and returned to her dorm later that morning. She said that on the way back to the dorm, she pointed out the spot where she fell to her friends. She said that while she rested in her room, her friends took pictures of where she fell.(2) Claimant reviewed these pictures, and stated that they accurately depicted the location where she fell and its condition at the time of her fall.

On cross-examination, claimant acknowledged that she had testified at her deposition that there were snow and ice issues at numerous points on the sidewalks in the Dickinson Community, but stated that she was certain that the pictures showed the location where she fell, and that they were taken no later than early afternoon of March 7, 2015. She said she did not report the condition, even though she had seen it for a few days previously, because she was not aware she could make such a report.

She said that before she fell, she and her friends had been in another girl's dorm room, playing music and talking. She received a phone call, although she notably did not know from whom, and they went to meet that person (who was with a group of people) in a parking lot. She did not know what time they all met in the parking lot or how long they were there, although she estimated it was approximately 30 minutes. She did not clarify why a group of young women would meet with another group of people in a parking lot for thirty minutes between 1:00 a.m. and 2:00 a.m. on a very cold winter night. She said they were returning to her dorm from the parking lot when she fell. She acknowledged that the pictures of the location showed a light post immediately above the patch of snow and ice, but said that the area was only dimly lit.

She said she understood that there was a report that she was drinking, but insisted that she was not. She said she was not aware that the weekend of her fall was when St. Patrick's Day was celebrated with a parade in Binghamton, commonly known as Parade Weekend or Parade Day. She testified that she had not drunk any alcoholic beverages until her 21st birthday, and she was 18 at the time of the fall.

Mark Kramer, a forensic meteorologist, testified as a meteorological expert on claimant's behalf. Kramer noted that the official meteorological records(3) indicated that approximately 33 inches of snow fell in February 2015, 5.9 inches fell between March 1, 2015 and March 3, 2015, and a trace of snow fell on March 5th. The only day from March 1st to March 7th when the temperatures rose above freezing was March 4th, with a temperature range from 27 to 38 degrees Fahrenheit. On March 5th, the temperature ranged from 4 to 29 degrees, and on March 6th the range was -3 to 21 degrees.

Kramer reviewed the pictures taken by claimant's friends showing where claimant fell. He noted that snow started falling on March 7th at approximately 1:00 p.m., so (because the pictures do not show any snow on the bare pavement) he concluded that the pictures were taken prior to 1:00 p.m. He acknowledged he had never been to the site of the accident.

Kramer opined that any ice on the walkway would have formed no later than March 4th, and would have remained there until the time of claimant's fall, due to the cold temperatures. Kramer stated that he differed with the opinion expressed in defendant's expert's report(4) that the high temperature of 20 or 21 degrees on March 6th, combined with sunshine that day, could have caused some of the ice and snow around the sidewalk area to melt, creating the patch of snow and ice. Kramer opined that any water that might have melted on March 6th would have been minor compared to the presumably substantial melting on March 4th when the high was 38 degrees. Kramer did not know where the snow in the center of the patch might have come from, but speculated that it fell from the top of an adjacent snow pile.

On cross-examination, Kramer again acknowledged that he did not visit the site, but said that his review of the area on Google Earth showed the buildings and area clearly. He said that the wind had not been high at the area since the storm on March 3rd, so the snow and ice was unlikely to have been blown into the location. He agreed that the wind measurements were taken at the airport, but said that if there were only light winds on the top of the hill at the airport, it would be unlikely there would be strong winds in the valley at BU. Kramer asserted that the ice had been present in the location where claimant fell for at least 24 hours. Kramer was asked how he could make the statement in his report that "the snowbanks were not pushed far enough away from the pathways to . . . allow enough room for maintenance and other vehicles to navigate the path without crushing snow back onto the pathway"(5) if he had not visited the scene. He admitted that he did not know the width of the walkway, nor did he know the width of the vehicles used for maintenance. Kramer also acknowledged that he had no data regarding the exact temperature on campus on March 6th, but said it could only be two or three degrees warmer than at the airport, so it would still have been below freezing.

BU Campus Police Officer Andrew Schneider also testified for claimant. He recalled the incident, and said he received a call from campus dispatch at approximately 1:58 a.m. on March 7, 2015 stating that someone had fallen. He responded to the call, and found claimant seated on the sidewalk in front of Digman Hall, on the opposite side of the walkway from the entrance to the hall. Schneider stated that he asked claimant what happened, and she said she was walking, stepped on ice, heard her ankle crack, and fell. Schneider said he saw no ice in the vicinity of where claimant was sitting. He said after claimant left in the ambulance, he walked around the circular sidewalk and found some ice around the corner. He thought he might have called dispatch to request that any ice in the area be treated, but he did not remain in the area to see if anyone responded. He also stated that Nicole Mengler, one of claimant's friends present when she fell, told him they had had some drinks over the course of the evening. On one of the pictures of the scene,(6) Schneider marked the spot on the sidewalk where claimant was located when he arrived. He said he did not see the patch of snow and ice marked by claimant (on the same picture) at the time, but it certainly could have been there and it was possible that was where she fell.

On cross-examination, Schneider said that he smelled a strong odor of alcohol on claimant's breath, and said he asked her what she had been drinking. He said he also smelled alcohol on Mengler's breath. He noted that the location where he found claimant was not on the most direct route from where claimant said she had been (the O2 Parking Lot) to her dorm. He said he tried to figure out how she fell, because the area where she was sitting was dry, and the light from the lightpole lit up the surrounding area.

Donald Williams, formerly the Grounds Manager at BU, also testified on claimant's behalf. He stated that he was responsible for snow clearance. He received a call at 2:00 a.m. on March 7, 2015 advising that someone had fallen on ice in the Dickinson Community area. He called another employee to treat the ice.

Williams stated that on March 6, 2015, there would have been one person assigned to the Dickinson Community area from 7:00 a.m. to 3:30 p.m., and that person would spend the first two hours of the day doing a walk looking for garbage and checking for ice and snow. He said that the last snowstorm staffing prior to claimant's fall would have been on March 4, 2015, and the only snow maintenance between March 4th and 7th would have been if a maintenance worker encountered any snow or ice on the walkways, or if someone reported a problem. He said that no records would have indicated those situations, and no record was kept of receiving the call from Officer Schneider.

Williams said that after the storm on March 4th, he drove around to look for problem areas. He also said that the grounds crew was aware of certain freeze/thaw problem areas (he did not identify this as one), and would keep an eye on them. He said the crew might not clear the walkways from edge to edge during a storm as the first priority would be to make the walkways usable, but they would do so after the storm was over. He said the patch identified by claimant should not have been there. He speculated it was formed by some snow falling off an adjacent pile, and then going through a freeze/thaw cycle which resulted in the ice around the edges.

On cross-examination, Williams said he had no idea whether the patch of snow and ice was present on March 5th or 6th, but maintenance was not notified of any problem prior to the call from Officer Schneider. He said that walkway had lots of foot traffic, and "under ideal circumstances" that patch should not have been there.

On redirect, Williams stated that the walkway was very wide, and estimated the width at 15 feet.

Luke O'Neill, a BU maintenance worker, testified briefly. He did not recall his work hours, did not recall the date of the incident, and knew nothing about it at the time. He acknowledged that he had been working in the area of Dickinson Community during the days between the storm and claimant's accident. He said he did not see the patch of ice and snow, because if he had he would have tried to push it back further off the sidewalk.

Jim Tremark, another BU maintenance worker, also testified. He said he would have done something about the ice and snow patch if he had seen it.

John Stermansky, the BU maintenance worker that Williams called in the early morning hours of March 7, 2015 in response to the call from dispatch, also testified. He said he remembered being called. He went to the area to look for slippery areas, but did not see any. He said he spread a snow melt product over the entire walkway, but that the area did not have any real problems, and at least six to eight feet in width of the walkway was clear. He said there might have been a very small amount of ice melt from the previous day.

Claimant rested her case at the close of Stermansky's testimony. Defendant moved to dismiss on the basis that claimant had not established a prima facie case. Counsel argued that there was no evidence of any actual notice given to defendant, no evidence of any dangerous condition, nor any idea when the small patch of ice and snow might have appeared (and thus no constructive notice) because the expert could not put a specific time period on it. The Court reserved decision on the motion.

Dr. Jerome Blechman, Chair of the Atmospheric Sciences Department at the State University of New York - Oneonta, testified as defendant's expert. Dr. Blechman opined that there was no way to be certain, using the meteorological data, how long the patch of ice and snow had been present on the walkway. He said that there was no way to be certain where it had come from, although he did not think it fell from the top of the adjacent snow drift because that was undisturbed, but that there was some "disturbance" on the side of the drift. He said that in his opinion, the snow could have appeared on the afternoon of March 6, 2015. He said that the temperature (below freezing on March 6th) was not the only consideration regarding melting. He said that the official weather observation - described as full sun - was that the skies were mainly clear for the entire day, meaning that there would have been less than 1/8th cloud coverage. He noted that this was shortly before the spring equinox, and said that long and short wave radiation would go through the atmosphere and strike the ground and the snow. He stated that even when the temperature is well below freezing, if the sun is shining the snow can be melting. He did visit the location to see whether the buildings might have cast shadows, but found lots of open sky that would have allowed sunshine on that specific location. He concluded that he did not know how long the snow and ice was there, but stated that he did not believe that anyone could state with certainty that it had been there for more than 24 hours.

Defendant rested its case at the close of Blechman's testimony. The Court reserved decision.

The State, as a landowner, has a duty of reasonable care in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233 [1976]; see also Clairmont v State of New York, 277 AD2d 767 [3d Dept 2000], lv denied 96 NY2d 704 [2001]). To ultimately prevail on this claim, claimant must establish by a preponderance of the credible evidence that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]).

It is important to note that whether a condition is sufficiently dangerous that a defendant must take remedial measures depends upon the context or environment within which the condition is found. "Among other things, a party who slips and falls on ice or snow must establish that the injury causing condition was dangerous and different in character from conditions ordinarily and generally brought about by winter weather in the given locality" (Tobias v State of New York, UID No. 2000-013-520 [Ct Cl, Patti, J., Dec. 19, 2000] ; see Schwabl v St. Augustine's Church, 288 NY 554 [1942]; Williams v City of New York, 214 NY 259, 263-264 [1915]; Van Slyke v New York Cent. R. R. Co., 21 AD2d 147 [3d Dept 1964]; Tirado v State of New York, Ct Cl, Aug. 12, 1998, Bell, J., Claim No. 96320). The defendant "will not be held liable for injuries arising from a condition on [its] property that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it" (Stanton v Town of Oyster Bay, 2 AD3d 835, 836 [2d Dept 2003], lv denied 3 NY3d 604 [2004]). For example, mere failure to remove all snow and ice from a walkway is not indicative of a lack of due care and does not constitute negligence (Cardinale v Watervliet Hous. Auth., 302 AD2d 666 [3d Dept 2003]; Rector v City of New York, 259 AD2d 319, 320 [1st Dept 1999]; Gentile v Rotterdam Sq., 226 AD2d 973 [3d Dept 1996]; unless it is shown that the hazard was increased by what was done to remove the snow (Reidy v EZE Equip. Co., 234 AD2d 593, 594 [2d Dept 1996]; Bell v State of New York, UID No. 2014-029-009 [Ct Cl, Mignano, J., Feb. 11, 2014]).

In this case, the photographs submitted into evidence by claimant(7) show a very wide sidewalk (Williams testified it is approximately 15 feet wide) which is at least 75% clear of snow and ice and is completely dry. The small patch of snow and ice is very narrow, right at the edge of the walkway abutting snow piles, and is immediately under a pole lamp. The narrow patch of ice and snow could easily be avoided with a minimum of care and observation. Further, claimant testified that she knew it was there. Moreover, claimant never even began to establish that defendant had notice of any such condition, whether actual or constructive. The walkway was heavily trafficked on a daily basis, and no complaints were made and there is no record of any other fall. Winter in Binghamton, New York of necessity involves snow and ice, and the walkways depicted indicate that defendant fulfilled its duty to take appropriate measures to keep the walkways safe.

Based on the foregoing findings, the claim is dismissed. Any and all motions on which the Court may have previously reserved or which were not previously determined are hereby denied. Let judgment be entered accordingly.

October 31, 2018

Binghamton, New York

CATHERINE C. SCHAEWE

Judge of the Court of Claims


2. Claimant's Exhibits 1, 2 and 3.

3. Claimant's Exhibit 5.

4. Inexplicably, neither defendant's expert's report nor his CV were submitted into evidence.

5. Claimant's Exhibit 9 at 12, section h.

6. Claimant's Exhibit 1.

7. Claimant's Exhibits 1 - 3.