Opinion
# 2015-040-003 Claim No. 113133
01-23-2015
MICHAEL STORMS v. THE STATE OF NEW YORK
OFODILE & ASSOCIATES, P.C. By: Anthony C. Ofodile, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esq., AAG
Synopsis
Court finds that Claimant failed to establish that his fall on patch of ice on walkway was caused by State's negligence.
Case information
| UID: | 2015-040-003 |
| Claimant(s): | MICHAEL STORMS |
| Claimant short name: | STORMS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 113133 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | OFODILE & ASSOCIATES, P.C. By: Anthony C. Ofodile, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 23, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Michael Storms, failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries he sustained on December 22, 2004, when he slipped and fell on ice in the large yard at Oneida Correctional Facility ("Oneida") located in Rome, New York.
A bifurcated trial, addressing liability issues only, was held on April 23, 2014 at the Court of Claims in Utica, New York. There were three witnesses: Claimant; New York State Correction Lieutenant ("Lt.") Stephen Otto; and Parker Bryant. Thereafter, the parties requested and were granted additional time to order a transcript and submit posttrial memoranda.
Lt. Otto has worked for the Department of Corrections and Community Supervision and its predecessor agencies ("DOCCS" ) for over 16 years. He was a correction officer on December 22, 2004 and had worked at Oneida for the preceding four or five years, including approximately three winter seasons.
Mr. Bryant has been employed by DOCCS for 22 years and was Plant Superintendent at Oneida on the date of Claimant's accident, in charge of maintenance of the grounds.
FACTS
On the afternoon of December 22, 2004, Claimant slipped and fell on ice in the large yard at Oneida. The large yard was comprised of three sections: (1) a grassy football field that generally was not used during the wintertime; (2) an indoor gymnasium; and (3) a paved outdoor area with handball/basketball courts and a weight shack, as well as an adjacent grassy area with a path or walkway around the perimeter (the "Outside Yard") (see Ex. E-2 [white-roofed gym at top of photo, grey roof of outdoor weight shack, paved handball/basketball courts, and grassy area with pathway].
Some or all of the dormitories at Oneida were closed at certain hours during which inmates were not allowed to remain in their dorms. Inmates who did not have someplace else to go, such as a scheduled program or activity, were assigned to mandatory recreation at such times. Mandatory recreation inmates could choose to go into the indoor gymnasium, or the Outside Yard. Claimant's accident occurred during such a mandatory recreation period when he elected to be outdoors because he is a smoker and smoking was prohibited in the gymnasium. Mr. Storms agreed that he had the option, once every hour, to move back and forth from the Outside Yard to the gym, or vice versa, if he so desired (Tr., p. 92).
Claimant drew a sketch to depict the Outside Yard as it was on December 22, 2004 (see Ex. 5; see also Exs. E-1 - E-4, inclusive [aerial photographs of the same area]). The Outside Yard was surrounded by a fence (Ex. 5 [green lines]). Prisoners gained access to the area by means of a gate indicated on the right hand (West) side of the sketch (id. [green "X" on right side of drawing]). A covered weight shack is depicted in the upper right (Southwest) corner of the sketch. To the left of it (to the East) was one of two enclosed officers' shacks. In the middle of the Outside Yard were six paved handball courts and three paved basketball courts, along with six picnic tables (circled in red). Claimant drew an orange line (from South to North) on the sketch to mark the demarcation between the paved courts and the grassy area. The other officers' shack is indicated at the bottom (North) of the page, just within the paved portion of the yard. In the Southeast corner of the Outside Yard (the upper left corner of the sketch) there was a large tree near the portion of the walkway where Claimant said that he fell (see Ex. 5 [black dot represents the tree and two parallel curved blue lines depict the walkway]).
The parties disagree about a number of particulars, beginning with the weather on the day of Mr. Storms' accident. Claimant said that "[a]ll morning it was cold, rain, sleet, icy conditions," but that, in his view, the facility "had some time to clean up" by the time the afternoon mandatory recreation period began (Tr., p. 67). At his examination before trial conducted on October 1, 2012, Mr. Storms said that the Outside Yard was closed on the morning of December 22, 2004 because it was raining, so he went to the gymnasium during the morning mandatory recreation period. The Outside Yard was open, however, in time for the afternoon mandatory recreation period, at around 12:30, so he went outside then (Tr., p. 89).
Lt. Otto agreed that the yard was closed sometimes on account of snow or inclement weather.
By contrast, the weather recorded in the Watch Commander's Log for the 7:00 a.m. to 3:00 p.m. shift on December 22, 2004 was clear and 20° (Ex. 6, p. 1). During the 3-11 p.m. shift later that day, rain and 32° was reported (id., p. 2). Lt. Otto had no idea about conditions earlier in the day, but agreed with the afternoon readings reported in the Watch Commander's log, adding that it was "just an upstate New York winter day," and he did not recall the weather conditions "being anything special" (Tr., pp. 46, 57).
The parties also disagreed about the condition of the Outside Yard that day. Claimant said that no part of it, including the handball courts and the walkway, had been salted or sanded, and that the yard was "slick. It was like an ice skating rink" (Tr., p. 92; see pp. 67, 76, 91). He said that the area where the paved courts ended and the grassy area began was covered by snow, and he decided to stay on the walkway (Tr., pp. 67, 79, 91).
While Lt. Otto believed that he noticed ice and snow in spots, he had no problem walking around the paved area of the yard, did not slip and fall before he went to assist Claimant, did not see anyone else slip or fall, did not recall receiving any complaints about the condition of the Outside Yard, and his supervisors issued no instructions to remove inmates from the Outside Yard on account of a hazardous condition (Tr., pp. 27-28, 50).
Neither Lt. Otto nor Mr. Bryant knew if the Outside Yard was cleaned on the date of the accident, but they did describe the usual and customary snow removal practices at Oneida. Oneida's maintenance department personnel were responsible for snow and ice removal and work typically was divided as follows: inmate work crews salted walkways or roads used by prisoners within the facility; and maintenance staff treated areas outside the facility. Mr. Bryant confirmed that the grounds logbook was a contemporaneous record. It reflects that two inmate crews were dispatched to salt walkways between 11 a.m. and Noon on December 22, 2004, although it does not indicate where in the facility that work was done, or that any other crews were dispatched after that as of the last entry, which is at 3:45 p.m. (see Ex. 7). Lt. Otto agreed that the Watch Commander's log (Ex. 6) does not note that cleaning or salting occurred that day, but, said that such routine procedures typically would not be memorialized in that log.
Security supervisors and the fire and safety officer also would notify maintenance staff if they saw conditions that were not being addressed already (see Ex. C, p. 2). Exhibit C is Oneida's policy and procedures manual for Oneida's physical plant. Even though the exhibit is dated June, 2007, Mr. Bryant confirmed that it contained no material differences from the version that was in effect in December 2004.
In fact, Lt. Otto believed that the reference to salting "walkways" in the grounds log did not refer to the pathway around the Outside Yard. The accident/injury investigation report also attributes to the fire and safety officer an assertion that the gymnasium officer stated that the large yard does not get salted or sanded (Ex. 1).
Exhibit 1 was admitted subject to the exclusion of language suggesting that remediation should be undertaken after the accident (see Tr., pp. 5-6) which appears to be contained in the remainder of the fire and safety officer's comment (see Ex. 1). The Court has not considered the excluded material in reaching its determination of this Calim. '
With respect to the Outside Yard in particular, inmate work crews typically salted, shoveled and plowed the paved portion of the Outside Yard, but it was a secondary task, to be undertaken only after more heavily-trafficked walkways elsewhere in the facility had been cleared. By contrast, the pathway around the perimeter of the grassy area was cleared only infrequently by maintenance staff with a snow blower and then only for security reasons, never to provide access for inmates. Of course, the path also might be cleared naturally if snow/ice melted in a thaw. Whatever the cause, Lt. Otto stated that, on the day of Claimant's accident, the pathway "was cleaned off somehow" (Tr., p. 54). As for the grassy area, however, it was never salted because that would kill the lawn. In fact, excess snow often was removed from the paved area and piled up and stored on the grass.
Lt. Otto was not the officer who deemed the yard fit for use on the afternoon of December 22, 2004, but it was not closed, and inmates already were in the Outside Yard when he took up his post that afternoon. Lt. Otto noted that inmates would not have been allowed to recreate in the Outside Yard, including the pathway, unless it had been shoveled, or at least deemed safe for people to walk there. At the same time, Lt. Otto said that the grassy area was icy on the afternoon of the accident and that inmates were not allowed in that area, although he also agreed that there were no signs to keep off the grass.
With respect to the accident itself, Claimant testified that, upon entering the Outside Yard, he turned right and walked beyond the weight shack and then turned left (see Ex. 5). He proceeded past one of the officers' shacks and continued beyond the handball courts, and onto the walkway (Tr., pp. 70-71). Mr. Storms agreed that he made several loops on the pathway around the yard prior to his accident, during which he also would have had occasion to pass the other officers' shack. He could not recall, however, if he commented or complained to one of the correction officers about the condition of the yard (Tr., p. 91). He said that Lt. Otto was located in the officers' shack near the weight shack, but that the officer would not have been able to see the place where Claimant fell from that vantage point. Mr. Storms was not sure if there was a correction officer in the other officers' shack (Tr., pp. 70-73). By contrast, Lt. Otto said that he did not stay in the officers' shack. Rather, he was walking around the Outside Yard, as was his custom (Tr., pp. 49-50).
Claimant explained that he was walking on the path, rolling a cigarette, with his arms close in to his sides when the accident occurred (Tr., p. 69). He denied being distracted by the cigarette and said he was "paying attention to where I was going" (Tr., p. 93). As he lifted his right leg to take a step, he slipped on ice. His left leg slid underneath him and he "came right down" onto his left side (Tr., p. 69), "right within the pathway" (Tr., p. 75), and "slid back a little bit" (id.), "slid backwards … about two feet … and that's still on the pathway" (Tr., p. 86; see Ex. 2 [inmate injury report]; Ex. 4 [ambulatory health record]). Claimant said that the place where he fell is indicated by the black "X" in the upper left (Southeast) corner of the sketch that is Exhibit 5, right along the inside edge of the path, as depicted by the blue lines on the sketch (Ex. 5; Tr., pp. 86-87). Claimant said that he wound up on his back with his head pointing towards the handball courts and that, as Lt. Otto came up from behind him (i.e., from the direction of the handball courts), Claimant heard, but did not see, the officer fall, and said that, "[a]s far as I know, Officer Otto was coming across the path - the grass area right in through here where - which is where I fell" (Tr., p. 75).
Lt. Otto's recollection differs in several respects. He believed, but was not positive, that he actually saw Claimant fall, but, in any event, no one told him that Claimant had fallen and he remembered seeing Mr. Storms laying on the ice, underneath the tree, about five or ten feet off the walkway (Tr., pp. 22, 52-53; Ex. E-4 [tree was located where discolored patch of grass is visible near lower right hand corner of paved courts; cf. Ex. 5 [Claimant placed black circle to denote tree in same vicinity]). Lt. Otto noted that the tree was on "kind of a knoll," so Claimant "was kind of up on the top of it at the time" (Tr., p. 53). The contemporaneously prepared reports support Lt. Otto's recollection (Ex. 2 [the inmate injury report, which was signed by Mr. Storms on the date of the accident, states Claimant was "walking across the big yard by the tree when he slipped on ice and fell"]; Ex. 4 [ambulatory health record recites that he "was walking in big yard by the tree. Fell on ice"]). Lt. Otto also said that, when he fell, he was approaching Mr. Storms at a place in the grassy area, about ten feet beyond the paved area (Tr., pp. 47-48). Lt. Otto said that the area where he fell had not been salted or cleaned. The accident/injury investigation report states that he "slipped on ice in [the] large yard" (Ex. 1). He did not recall getting damp or wet as a result of his fall (Tr., p. 46).
LAW
"[W]hen the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506, 511 [1984]). Accordingly, while the State is not an insurer of those who enter upon its premises, and negligence cannot be inferred solely from the occurrence of an accident (see McMullen v State of New York, 199 AD2d 603, 604 [3d Dept 1993]; Tripoli v State of New York, 72 AD2d 823, 823 [3d Dept 1979]), it does have a common-law duty to maintain its facilities "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk," with foreseeability constituting the measure of liability (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir. 1973], cert denied 412 US 939 [1973]; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]).
To establish a prima facie case of negligence in a slip and fall case, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Keating v Town of Burke, 86 AD3d 660 [3d Dept 2011]). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).
"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 [D]efendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314,1315 [3d Dept 2007]).
"The critical issue to be resolved is whether, under the prevailing conditions, the State fulfilled its duty to take appropriate measures to keep the [roadway/pathway] safe" (Goldman v State of New York, 158 AD2d 845, 845 [3d Dept 1990], appeal dismissed 76 NY2d 764 [1990]; see McGowan v State of New York, 41 AD3d 670, 671 [2d Dept 2007], quoting Pappo v State of New York, 233 AD2d 379, 379 [2d Dept 1996]).
The standard of reasonableness in slip and fall cases involving snow and ice also must be assessed "with an awareness of the realities of the problems caused by winter weather," meaning that "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" in order to establish a breach of duty in such cases (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681 [3d Dept 1988]; see Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]; Fusco v Stewart's Ice Cream Co., 203 AD2d 667, 668 [3d Dept 1994]). "[A] landowner's obligation to take reasonable measures to correct storm-created snow and ice conditions does not commence until after the storm has ceased" (Hilsman v Sarwil Assoc., L.P., 13 AD3d 692, 693 [3d Dept 2004]) and for a reasonable time thereafter (Wood v Schenectady Mun. Hous. Auth., 77 AD3d 1273 [3d Dept 2010]; Boynton v Eaves, 66 AD3d 1281 [3d Dept 2009]). Claimant bears the burden of showing that the State failed to exercise due care to correct a dangerous condition within a reasonable time after the cessation of the weather (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, supra at 681).
In Correa v State of New York, UID No. 2009-013-506 (Ct Cl, Patti, J., Oct. 23, 2009), the Court quoted from Crabtree v State of New York (Ct Cl, Claim No. 85882, Bell, J., March 11, 1994) as follows: … it is virtually impossible to clear all snow and ice from areas … in northern portions of New York in the wintertime. The fact that an inmate falls on correctional facility premises does not render the State liable if the conditions existing at the time of the accident were not so unusual, dangerous or different from the conditions ordinarily prevailing during the winter months in the locality (citations omitted).
Moreover, landowners are not obligated to warn against conditions on the land that could be readily observed by the use of one's senses. Where the condition is open and obvious, "the condition is a warning in itself" (Tarricone v State of New York, 175 AD2d 308, 309 [3d Dept 1991], lv denied 78 NY2d 862 [1991]; see also Ruiz v Hart Elm Corp., 44 AD3d 842, 843 [2d Dept 2007]; Cupo v Karfunkel, 1 AD3d 48, 51 [2d Dept 2003]; Herman v State of New York, 94 AD2d 161 [2d Dept 1983], affd 63 NY2d 822 [1984]).
Finally, a claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen, and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]; Lolik v Big V Supermarkets, 210 AD2d 703, 704 [3d Dept 1994], revd on other grounds 86 NY2d 744 [1995]; Sharrow v New York State Olympic Regional Dev. Auth., 193 Misc 2d 20, 43 [Ct Cl 2002], affd 307 AD2d 605 [3d Dept 2003]).
DISCUSSION
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 establish his Claim by a preponderance of the credible evidence because he did not establish that a dangerous condition existed, or, assuming that one did exist, that Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time.
The Court found the testimony of Lt. Otto to be more persuasive than that of Claimant with respect to a number of disputed facts in this Claim. Thus, the Court finds that the day of the accident began clear and cold and conditions only began to deteriorate, and then only marginally, at around midday. Mr. Storms' recitation of rain, sleet, and ice in the morning, with improving conditions later so that Defendant had time to clean up the Outside Yard before the afternoon mandatory recreation period conflicts with the contemporaneously recorded observations which indicate the exact opposite sequence of meteorological events. After a clear and cold start, inmate work crews were dispatched in the hour before Noon to salt some unspecified areas of the facility and, even though it was raining and at the freezing mark by 3 p.m., there apparently was no further call for them, at least through nearly 4 p.m. To the Court's mind Lt. Otto's characterization seems to be spot on, that the weather conditions that afternoon were unremarkable, and just a typical winter day in Upstate New York.
The Court further credits Lt. Otto's testimony, that he did not stay in the Officers' Shack, and was, instead, walking around the Outside Yard and that he had no difficulty navigating the paved area of the yard, that the pathway itself was cleaned off, that others used the area without slipping, but that the grassy area was icy. Those observations are consistent with the customary cleaning regimen that Lt. Otto and Mr. Bryant each described, and pursuant to which inmates would not have been allowed into the Outside Yard unless it was deemed safe. The yard had been closed on other occasions in the past on account of inclement weather conditions and, indeed, Claimant asserted that it had been closed on the very morning of his accident. Claimant's version of events would have it that Oneida closed the Outside Yard in the morning, only to open it for the use of inmates even though conditions throughout the Outside Yard were slick like a skating rink, with no parts having been salted/sanded. The Court cannot credit Mr. Storms' account.
Finally, the Court determines that Claimant was under the tree that was on a knoll when he fell, in the grassy area where Lt. Otto saw him on the ground, and not on the pathway as Mr. Storms maintained. At trial, Claimant's counsel suggested to the officer that Mr. Storms might have slipped while on the pathway and then stumbled, taking several steps trying to brace himself, before falling by the tree. Lt. Otto thought that seemed implausible (see Tr., p. 53) and so does the Court. To begin with, Claimant said that he came right down within the pathway with no mention of stumbling. Moreover, to the Court's mind it is exceedingly unlikely that Mr. Storms would have stumbled uphill, on the icy, grassy area, towards the top of the knoll. In fact, Claimant, himself, may have inadvertently belied his true location when he said that he "slid back a little bit" after he fell (Tr., p. 75), an action that would be very consistent with a fall on the elevated knoll, although, to be sure, also within the realm of the possible if he fell on the pathway. Perhaps more telling is Claimant's statement that Lt. Otto seemed to be "coming across the path" and the grassy area to assist him (Tr., 75 [emphasis added]). Thus, by Claimant's own account, Lt. Otto seemed to be following a route that was heading for the tree on the knoll and not, as Mr. Storms insisted, a place along the pathway. Lt. Otto said that he also fell in the grassy area as he was reaching Claimant.
Accordingly, the Court finds that the conditions existing in the Outside Yard on the day of Claimant's accident were not so unusual, dangerous, or different from those that ordinarily prevail during the winter months in Upstate New York. To the contrary, as Lt. Otto noted, it was a typical winter day. The paved area of the Outside Yard and the pathway around the grassy area were sufficiently passable that Oneida deemed the yard safe for inmates to use. No one else fell. No one complained about the conditions, including, apparently, Mr. Storms, during the hour or more in which he successfully made several circuits around the pathway. The State was not obliged to clear snow from every portion of the Outside Yard. It had no duty to post warnings because the condition of the snow/ice covered grassy area was readily observable by the use of Claimant's senses. Claimant left the cleared portion and walked onto the grassy area, up onto a knoll, to be near, or under a tree. In other words, he elected to go into the portion of the Outside Yard that was never salted and which, in fact, often was used to store snow that had been removed from the paved portion of the yard. Accordingly, the Court finds that, under the prevailing winter conditions, the State fulfilled its duty to take appropriate measures to keep the Outside Yard reasonably safe for inmates to use.
As noted, Claimant was not compelled, but, rather, elected to leave the pathway and wander into the grassy area and up onto the knoll by the tree. The Court concludes that, in doing so, Mr. Storms failed to use reasonable care to observe his surroundings, to see what was there to be seen, and to avoid accidents, a failure that was exacerbated, in the Court's view, because he was occupied with rolling a cigarette. The Court rejects, especially under such circumstances, Claimant's assertion that he was not distracted by the preparation of his smoke.
Finally, and assuming, arguendo, that there was a dangerous condition, the Court further finds that Claimant failed to establish by a preponderance of the credible evidence that Defendant either created the dangerous condition or had notice thereof and failed to alleviate the condition within a reasonable time. There is no evidence that the State created the condition. Claimant, likewise, failed to show that the State had constructive notice of a dangerous condition. There is nothing in the record to suggest that there was any snow/ice in the Outside Yard prior to the day of the accident. On December 22, 2004, the weather was clear in the morning, may have deteriorated towards midday, and rain was documented only at or after 3 p.m. and, thus, also after Claimant's accident. Thus, it likewise is not possible to say when any snow/ice may have formed on the day Claimant fell, or when any precipitation may have ceased. As such, the Court concludes that the State may have had notice of, at most, an emergent dangerous condition. The record does not support a conclusion that the State failed to address any such condition within a reasonable time period to say nothing of a reasonable time after the cessation of inclement weather.
CONCLUSION
Accordingly, the Court determines that Claimant failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with his Claim and the Claim is dismissed. All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial are now overruled.
The Chief Clerk is directed to enter judgment accordingly.
January 23, 2015
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims