Opinion
# 2013-037-505 Claim No. 116645
07-09-2013
DAVID C. SMITH v. STATE OF NEW YORK
Synopsis
Case information
UID: 2013-037-505 Claimant(s): DAVID C. SMITH Claimant short name: SMITH Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116645 Motion number(s): Cross-motion number(s): Judge: JEREMIAH J. MORIARTY III Cantor, Dolce & Panepinto, P.C. Claimant's attorney: By: Frank J. Dolce, Esq. Hon. Eric T. Schneiderman New York State Attorney General Defendant's attorney: By: Darren Longo Assistant Attorney General Third-party defendant's attorney: Signature date: July 9, 2013 City: Buffalo Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant seeks money damages for injuries he suffered on December 13, 2007 at approximately 8:15 a.m. when he slipped and fell on snow and/or ice while walking in the driveway of a group home operated by the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) at 2044 Danna Drive in the Town of Collins, Erie County, New York. The trial was bifurcated and this decision addresses solely the issue of liability.
Now known as the Office for People With Developmental Disabilities (OPWDD). For historical consistency, the Court will refer to the Department by its former name, which was in effect at the time this Claim accrued.
Claimant testified that on the day of the incident he was employed as a substitute bus driver for Carrier Coach, Inc., which was under contract with OMRDD to provide regular bus transportation service for residents of the group home. He departed from the Gowanda, New York facility at approximately 8:00 a.m. in a "turtle top" bus with Albert Llewellyn as monitor and arrived at the home approximately ten minutes later to find that the driveway was covered with two or three inches of snow. As was his custom, Claimant backed the bus into the driveway to a point where the driveway intersects the sidewalk leading to the front entrance of the home. He then exited the driver's side door and walked around the front of the bus to the passenger side where he intended to operate the lift for wheelchair bound residents. Before reaching the lift controls on the outside of the bus, Claimant slipped and fell on what he believes was a two foot square patch of ice concealed by snow causing the alleged injuries. Claimant was able to regain his footing and continued on with his routine to operate the lift, load the passengers and transport them to their off-site rehabilitation activities. Albert Llewellyn was the only witness to the accident although he was inside the bus when Claimant fell. Both men filed incident reports with Carrier Coach, Inc. upon returning to the facility after their morning trip. It is Claimant's claim that Defendant is liable for not clearing the snow or treating the driveway surface with a snow/ice melting agent on the morning of December 13, 2007.
Claimant produced six witnesses and the examination before trial transcript of a seventh, who were employees of OMRDD on the day of Claimant's accident. Three of the witnesses, Cheryl Goss, Karen Twoguns and Angela Harmon were on the premises at the time but did not witness the accident. Cheryl Goss, the day shift supervisor, testified that she was outside on the sidewalk at the time of the accident where she witnessed Claimant regaining his footing but did not see the fall itself and acknowledged that there was an entry in the facility logbook noting Claimant's fall. Ms. Goss testified that the snow removal policy for the facility required that employees keep the sidewalks clear of snow and ice for the safety of the residents, while maintenance of the driveway was the responsibility of Norman Peters who was under contract with OMRDD to plow when the snow depth reached two inches or more. She stated that the employees were expected to apply snow/ice melting agents to the sidewalk surfaces when necessary but they were not required to treat the surface of the driveway. However, the employees would occasionally treat the portions of the driveway traversed by ambulatory residents to access the bus but did not do so prior to Claimant's fall on the morning of December 13, 2007.
Norman Peters testified regarding his snowplowing contract with OMRDD confirming that he was obligated to plow the driveway when snow depth measured two inches or when requested by the facility and he was not required to apply melting agents to the driveway surface. He also acknowledged that he did not plow the driveway on December 13, 2007.
The expert meteorologists for the respective parties relied upon similar data in reaching their conclusions. Claimant's expert, Stephen Wistar, a forensic and certified consulting meteorologist, described the practice of forensic meteorology as looking back in time to reconstruct weather details at a particular time and place through use of various types of official weather data archived by the government at the National Climatic Data Center. In this instance, since there is no data specific to Collins, New York, it was necessary to consider data from nearby sources including airports and volunteer observers. Based on the available data, Wistar concluded that in the week prior to Claimant's fall there was a snow-melt-freeze cycle, followed by a light snowfall beginning at approximately 7:00 a.m. on December 13, 2007. He opines that an untreated surface such as the driveway at the group home would have been subject to ice formation prior to and including December 13, 2007 and he said with certainty that there was ice on the driveway under the snow cover at the time of Claimant's fall unless it had been removed.
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.
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Defendant's expert, Kevin Williams, submitted a report and offered testimony similar to that of Mr. Wistar except they differed in their conclusions. Williams stated that the weather leading up to the day of Claimant's fall was conducive to the formation of ice on untreated surfaces but he could not, without more data, state with any certainty that ice was present in a particular place. He indicated that factors such as topography, slope, shelter, etc. all effect where, when and how fast ice forms. Williams also testified that any ice on the driveway surface at the time of Claimant's fall would likely have been present for one to four hours and that it was not possible to state with certainty where ice would have formed on the driveway on the date of the accident.
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 [1976]; Preston v State of New York, 59 NY2d 997 [1983]). 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 duty of care (Killeen v State of New York, 66 NY2d 850 [1985]; Clairmont v State of New York, 277 AD2d 767 [3d Dept 2000], lv denied 96 NY2d 704 [2001]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). 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 [1986]; Heliodore v State of New York, 305 AD2d 708 [3d Dept 2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]).
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 [3d Dept 1988]). 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 [3d Dept 2003]). 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 [3d Dept 1996]; Downes v Equitable Life Assur. Socy. of U.S., 209 AD2d 769 [3d Dept 1994]). Claimant bears the burden of showing that Defendant failed to exercise due care to correct a dangerous condition within a reasonable time after cessation of the weather event (Marcellus, 145 AD2d at 681).
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant failed to meet his burden, and did not establish by a preponderance of the credible evidence that Defendant was negligent in connection with his injury.
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 December 13, 2007. 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 of a similar nature on this driveway.
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 a defendant's employees to discover and remedy it" (Gordon, 67 NY2d at 837; see Mazerbo v Murphy, 52 AD3d 1064, 1066 [3d Dept 2008]). There is no factual evidence establishing the length of time ice (if any) was present on the driveway surface and the witnesses agreed that on the morning of the accident there was a light snowfall 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 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 Claimant observed an accumulation of snow on the driveway upon arrival at the home that morning provides no support for the conclusion that Defendant had notice of a dangerous condition that allegedly caused Claimant's accident. Such proof establishes no more than a "general awareness" that outdoor areas become wet or slippery 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 [2005]; Stoddard v G.E. Plastics Corp., 11 AD3d 862 [3d Dept 2004]). In addition, Claimant failed to submit proof that his injuries were caused by ice that was present prior to the date of the fall rather than the light snow which fell just before the accident (Stalker v Crestview Cadillac Corp., 284 AD2d 977 [4th Dept 2001]).
While Mr. Smith's fall was unfortunate, he has failed to prove by a preponderance of the credible evidence that Defendant breached its duty of care (see Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191 [1976]). There is no proof that any individual employed by Defendant was aware of the existence of the patch of ice upon which Claimant allegedly fell and there was no evidence of the length of time the alleged icy condition existed.
Accordingly, Claim Number 116645 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.
July 9, 2013
Buffalo, New York
JEREMIAH J. MORIARTY III
Judge of the Court of Claims