Opinion
# 2012-038-104 Claim No. 116573
06-27-2012
SULLIVAN v. THE STATE OF NEW YORK
Synopsis Case information
UID: 2012-038-104 Claimant(s): MICHAEL SULLIVAN Claimant short name: SULLIVAN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116573 Motion number(s): Cross-motion number(s): Judge: W. BROOKS DeBOW Claimant's attorney: GARY E. DIVIS, Esq. ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Jessica Hall, Assistant Attorney General Third-party defendant's attorney: Signature date: June 27, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant seeks to recover for injuries he sustained when he allegedly slipped on ice and fell on a walkway at Bare Hill Correctional Facility (CF) on November 29, 2008. The liability phase of the trial of this claim was conducted on November 17 and November 18, 2011 in Albany, New York. Claimant presented his testimony and that of Nelson Serrano. Both parties called Daniel E. Perryman, Plant Supervisor at Bare Hill CF and defendant presented the testimony of Department of Corrections and Community Supervision (DOCCS)Correction Officer (CO) Peter J. Warner. Numerous photographic and documentary exhibits were received into evidence and the parties submitted post-trial memoranda. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court determines that defendant is not liable to claimant.
DOCCS was formerly known as the Department of Correctional Services (DOCS) (see L 2011, ch 62, Part C).
FACTS
Claimant was incarcerated at Bare Hill CF on November 29, 2008. At approximately 7:00 a.m., he and Nelson Serrano, another inmate, left the D-2 dormitory (hereinafter "D-2") to go to the mess hall for breakfast. As they returned from breakfast at approximately 7:30 a.m., claimant slipped and fell, sustaining injuries to his left hand and knee. Claimant asserts that he slipped on snow-covered ice that had formed in a depression in the walkway leading to D-2.
It had snowed overnight from November 28 to 29, 2008, but it was not snowing when claimant and Serrano left D-2 for the mess hall the morning of November 29. Claimant and Serrano were among the first inmates to leave D-2 for breakfast, and they both testified that approximately one inch to an inch and one half of new snow was on the ground when they departed D-2, that the walkway in front of D-2 had not been shoveled, sanded or salted, and that the newly fallen snow was largely otherwise undisturbed. To get to the mess hall, claimant and Serrano proceeded on the walkway that ran from the D-2 entryway to its end at a T-intersection with a roadway, turned right onto the roadway, and then made a series of left and right turns until they reached the mess hall. After breakfast, claimant and Serrano returned to D-2 at approximately 7:30 a.m., retracing the route they had taken to get to the mess hall. When they turned left from the roadway onto the D-2 walkway, the walkway had not been cleared of snow or sanded, but the snow had been trampled by the dozen or so inmates who had left D-2 after claimant and Serrano. They both testified that claimant slipped and fell on the D-2 walkway at a point approximately 10 to 12 feet south of the entryway, which was in the area of a low spot in the D-2 walkway where water would pool or puddle after periods of rain.
The exact location of claimant's fall was disputed at trial. CO Warner testified unequivocally that he saw claimant fall as he was negotiating the left turn from the roadway onto the walkway, a location that was at least 20 feet away from the uncontroverted low spot in the walkway. The Court found all three witnesses to be generally credible, however, and there is insufficient evidence in the record to discredit any of their testimony as to the location of the fall. This factual dispute need not be resolved, however, because even if credited, the testimony of claimant and Serrano as to the location of claimant's fall would not alter the Court's analysis regarding lack of notice as set forth below, and the claim would nevertheless be decided in defendant's favor.
On November 29, 2008, the D-2 walkway was approximately 20 feet wide and 50 feet long and was composed of two contiguous strips of asphalt (see Claimant's Exhibits 1B through 1E; Defendant's Exhibits A through E). The lighter colored, wider strip was the original walkway, and it was the width of the D-2 entryway and portico that covered the entryway. The darker colored strip of asphalt had been added to the walkway sometime in October 2008, and it ran the length of the older walkway and continued alongside the portico to the edge of the D-2 building proper. Approximately 10 feet up the walkway from the portico, there was a low spot across the width of the original walkway where a drain had been removed and filled in with concrete sometime prior to 2006. The low spot continued over into the newer strip, and when there were periods of rain, water would accumulate in the low spot. There was evidence that the walkway pitched slightly such that water would flow downhill from the roadway toward the D-2 entryway, and there was also evidence that water would drain from the roof of the D-2 portico onto the newer strip of the walkway. Claimant testified that he had seen a puddle that was approximately five to eight feet in length in the location of the low spot, and both he and Serrano identified the low spot in the newer strip as being the location of claimant's fall. CO Warner had observed puddling in the low spot in the newer strip, but he testified that it was a small puddle that would develop after periods of rain or other precipitation and would eventually dissipate.
Regarding the existence of ice, neither claimant nor Serrano noticed any ice on the walkway when they left D-2 for breakfast, and CO Warner testified that he had not encountered any difficulty in walking to D-2 for his 7:00 a.m. shift. Claimant did not observe ice prior to his fall, but realized that he slipped on ice because when he fell the "powdery snow cleared off the area and [he] noticed the ice" (T1:154).Claimant characterized the ice as "clear ice" or "black ice" (T1:182; T1:185). Claimant had previously testified that he thought that the ice patch was approximately five to eight feet in length, but he later clarified that he had not cleared off the area where he fell and therefore did not know the dimensions of the ice, and he explained that he had deduced the size of the ice patch from his prior observations of puddles of that size in that location. Serrano testified that his feet slipped in the icy area a bit when he helped claimant get up off the ground, but he did not lose his footing. There was no specific testimony regarding the depth of the ice, although claimant acknowledged that black ice is a very thin sheer layer of ice and that his clothes did not get wet from falling on the ice. Claimant testified that when he walked to dinner the previous evening at 5:30 p.m., he had observed the D-2 walkway to be clear of snow and he did not notice any puddles or water in the low spot at that time.
All references to the trial transcript are designated by "T1" for the proceedings on November 17, 2011 and "T2" for the proceedings on November 18, 2011. The Court notes that a small portion of the proceedings on November 17 during which the trial was adjourned to the following day is recorded on the Court's audio recording of the trial, but was not transcribed at the end of T1.
In a work order dated December 10, 2008, Bare Hill CF Superintendent Yelich requested the repair of a "low spot" in the walkway near the entrance to D-2 dormitory that "collects lg [large] amount of water" (Claimant's Exhibit 12).Daniel E. Perryman, Plant Supervisor at Bare Hill CF, testified that he and a subordinate investigated whether there was water buildup in the area and discovered none, but noted that there was a "slight possibility" (T1:101) that it could occur. Perryman further testified that prior to claimant's fall, he had not received any complaints or reports of any ponding or pooling of water in front of D-2 dormitory. CO Warner testified that although he was aware of the small puddle in the low spot, he had not reported it because he did not think it was dangerous or a hazard. Serrano testified "when there was no snow, [when it] was just raining, there would always be a pool in that area" (T1:24), but there was no evidence that ice patches were known to form in the low spot during winter months prior to claimant's fall.
At trial, defendant objected to the admission into evidence of Exhibit 12 on the grounds that: (1) claimant had not laid the proper foundation for the admission of the record as a business record under CPLR 4518 because there was no evidence that the record was made contemporaneously with the observations recorded therein; and (2) the work order constituted inadmissible evidence of post-accident repairs. The Court reserved decision on these objections, and now overrules defendant's objections and receives Exhibit 12 into evidence.
The Plant Supervisor at Bare Hill CF, Daniel Perryman, testified that he was familiar with work orders such as Exhibit 12, and that such a document is written contemporaneously to the reporter's observation of the condition. Although Perryman lacked personal knowledge of the completion of Exhibit 12, a "sponsoring witness need not be familiar with the facts contained in the record; it is sufficient that the witness knows the habits and customary practices and procedures for the making of such records" (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4518:2). Defendant's contention that Perryman's testimony provides an insufficient foundation for Exhibit 12 would require claimant to produce Supt. Yelich, the maker of the document, to testify that he recorded the entries contemporaneously. "There would be little or no purpose to the [business record] hearsay exception if the maker [of a record] were a required foundation witness" (id.). In sum, the Court is satisfied that Perryman's testimony provided a sufficient foundation for admission of Exhibit 12 under the business record rule.
Claimant sought to introduce Exhibit 12 at trial for the limited purpose of demonstrating the condition of the walkway at the time of the accident. While evidence of post-accident remedial repairs is generally inadmissible to prove negligence or notice of a dangerous condition, such evidence is permissible for the limited purpose offered by claimant, so long as the record of the condition is contemporaneous to the accident (see Stone v Town of Poland, 30 NYS 748 [Sup Ct 1894]). The Court is satisfied that work order, dated 11 days after the accident, is sufficiently contemporaneous, and Exhibit 12 is received for the limited purpose of proving the condition of the walkway at the time of claimant's accident.
The parties stipulated to certain weather conditions at Bare Hill CF (see Claimant's Exhibit 17). The stipulation indicated that there was a 3 inch accumulation of snow/ice on the ground on November 28, 2008, that a snow/sleet fall of 1.5 inches was recorded at the beginning of the 7:00 a.m. shift on the morning of claimant's fall, and that temperatures were recorded at D-2 as follows:
• 31F on November 27 at 7:00 a.m.
• 33F on November 27 at 3:00 p.m.
• 32F on November 27 at 11:00 p.m.
• 32F on November 28 at 7:00 a.m.
• 36F on November 28 at 3:00 p.m.
• 33F on November 28 at 11:00 p.m.
• 28F on November 29 at 7:00 a.m.
DISCUSSION
Claimant's theory of liability is that the State created a depression in the new strip of walkway that would fill with water, that the State knew or should have known that the accumulated water would freeze, and that it was negligent in failing to shovel, sand, or otherwise remove the snow that had accumulated on the D-2 walkway. Defendant contends, inter alia, that there was not a dangerous condition present, and that if there was, defendant lacked prior actual or constructive notice of it.
It is well-established that the State has a duty to maintain its premises "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" (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [1973], cert denied 412 US 939 [1973]). The basis for the State's liability for a claimant's slip and fall on the State's property due to icy conditions has been stated as follows:
While the State clearly owes a duty to claimants and others entering upon its property to maintain it in a reasonably safe condition under the circumstances, it is not obligated to insure against every injury which may occur (see, Boettcher v State of New York, 256 AD2d 882). Tempered with "an awareness of the realities of the problems caused by winter weather" (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681), it is well settled that liability may be imposed upon the State if it can be shown that it had actual or constructive notice of the hazardous condition that caused the fall (see, Piacquadio v Recine Realty Corp., 84 NY2d 967)
(Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]; see also Quintanilla v State of New York, 94 AD3d 846, 847 [2d Dept 2012]). At a trial of liability on a "slip and fall" claim, the burden rests on claimant to establish by a preponderance of the credible evidence that a dangerous condition existed, that the dangerous condition was a proximate cause of his fall, and that defendant either created the dangerous condition or had actual or constructive notice of the dangerous condition.
Turning first to the issue of the location of claimant's fall, even if the Court were to determine that claimant fell at the location of the low spot in the new strip of walkway and not at the top of the walkway as CO Warner testified as discussed above in footnote 2, the claim would fail for the reasons set forth hereafter. Accordingly, the Court need not resolve the credibility conflict upon which this disputed issue rests. Similarly, defendant disputes whether claimant's fall was caused by a dangerous condition but again, the Court need not determine this issue, because even assuming without deciding that claimant's fall was caused by a dangerous condition, claimant cannot prevail on this claim as the preponderance of the credible evidence does not establish that defendant created or had actual or constructive notice of the dangerous condition. The Court now turns to discussion of the issue of notice.
Claimant contends that defendant created the dangerous condition since it created the low spot in the walkway in which water from snow melt collected and re-froze. Where a defendant creates the hazardous condition that caused a plaintiff's injuries, such creation "constitut[es] actual notice" of the condition (Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 250 [1st Dept 1984], affd 64 NY2d 670 [1984], quoting Donohoe v Great Atl. & Pac. Tea Co., 277 App Div 739, 741 [4th Dept 1951]). A contention that the defendant created a dangerous condition must be supported by proof that the defendant "created the condition through an affirmative act of [negligence]" (Kelly v Berberich, 36 AD3d 475, 476 [1st Dept 2007] appeal withdrawn 8 NY3d 943 [2007]; see Mercer v City of New York, 223 AD2d 688, 689 [2d Dept 1996], affd 88 NY2d 955, 956 [1996] [requiring proof that hazard was created by defendant's own affirmative act]; see also Becovic v Poisson & Hackett, 49 AD3d 435 [1st Dept 2008]; cf. Bykofsky v Waldbaum's Supermarkets, 210 AD2d 280, 281 [2d Dept 1994] [discussing whether plaintiff's slip and fall had been caused by water that had been sprayed by defendant's employees]). The Court of Appeals has previously held in cases involving negligent road construction that a defendant may be affirmatively negligent only where the defendant's actions "immediately result[] in the existence of a dangerous condition" (Yarborough v City of New York, 10 NY3d 726, 728 [2008], quoting Oboler v City of New York, 8 NY3d 888, 889 [2007]). The Court, however, declined to apply the "immediacy test" to cases involving hazards related to negligent snow removal, instead focusing on whether the defendant's snow removal efforts foreseeably created the dangerous condition (see San Marco v Village/Town of Mount Kisco, 16 NY3d 111, 117-118 [2010] [defendant's method of clearing snow from a parking area and its potential creation of black ice]).
While claimant cited San Marco in his post trial submission, he relied upon that opinion solely for the proposition that melting and re-freezing of frozen precipitation is a foreseeable risk, and not in support of his contention that defendant created the dangerous condition (Claimant's Post Trial Memorandum of Law, 11).
Claimant's theory is a hybrid between negligent road construction and negligent snow removal, inasmuch as claimant argues that defendant created the condition by negligently constructing the new asphalt strip such that it had a depression, and that based upon the weather conditions, defendant should have foreseen that water would pool in the depression and re-freeze. Regardless of whether the case is analyzed in the context of negligent construction or negligent snow removal, however, the preponderance of the evidence at trial does not demonstrate that defendant's affirmative actions created a hazardous condition. There was evidence that the new strip of walkway was installed in October of 2008, but there was no evidence that the low spot was created at or about the time of the installation. In other words, the Court lacks a non-speculative basis to conclude that defendant's affirmative negligence created the low spot in the newer walkway (see Oboler, at 890 [no evidence of the condition of the asphalt immediately after repair]). Moreover, there is no evidence of any affirmative act other than the installation of the newer walkway, such as negligent piling of snow during snow removal efforts, caused the black ice to form in the low spot. Finally, there was no proof adduced at trial that defendant otherwise created the ice patch on the morning of November 29, 2008 (see, e.g. Bykofsky). Accordingly, defendant cannot be charged with actual notice of the icy patch on the basis that it was created by defendant.Nor is there evidence in the record that defendant's agents had actual notice of an ice patch in the area of the low spot on the morning of November 29, 2008, and claimant makes no such argument.
The cases cited by claimant in support of the proposition that defendant's actions caused water to pool in the newer strip of the walkway do not support a finding that defendant created a dangerous condition (see Claimant's Post Trial Memorandum of Law, 19-20). In Pasqua v Handels-En Productiemaatschappij De Schouw, B.V. (43 AD3d 647 [1st Dept 2007], lv dismissed 10 NY3d 790 [2008]), the fact that water was known to drip from an overhang onto a sidewalk was pertinent to the issue of constructive notice. In Hansen v Gilmore (33 AD3d 664 [2d Dept 2006]), defendant's motion for summary judgment was denied because in opposition to claimant's motion, defendant failed to address claimant's theories of design, use and maintenance of a gravel driveway where ice-filled ruts dug by truck tires developed. And in Migli v Davenport (249 AD2d 932 [4th Dept 1998]), knowledge that the absence of a gutter allowed rain and ice to accumulate in a parking lot was relevant to defendant's actual knowledge of a recurrent condition, but not its creation of a dangerous condition.
As for constructive notice, a "general awareness that icy conditions may exist" is not enough to establish constructive notice of a particular ice condition (Hart v State of New York, 43 AD3d 524, 525 [3d Dept 2007]; see Harjes v State of New York, 71 AD3d 1278 [3d Dept 2010]; Martin v RP Assoc., 37 AD3d 1017, 1017-1018 [3d Dept 2007]; Boucher v Watervliet Shores Assoc., 24 AD3d 855, 857 [3d Dept 2005]). Rather, constructive notice requires a showing that the particular icy condition existed "for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Quintanilla v State of New York, 94 AD3d at 848; Ciaschi v Taughannock Constr., 204 AD2d 883, 884 [3d Dept 1994]). Thus, to establish defendant's constructive notice of the ice patch in the low spot of the newer walkway, there must be evidence that the particular icy condition had existed for a period of time prior to claimant's fall to permit defendant's agents to discover and remedy the hazard.
Claimant asserts that the icy condition upon which he slipped was the result of thawing and re-freezing of snow that was upon the ground prior to the date of claimant's fall. The evidence adduced at trial, including the parties' stipulation as to weather conditions, demonstrates that there was snow on the ground on November 27 and 28, 2008, that the recorded temperatures reached a high point of 36F at 3:00 p.m. on November 28, 2008, that the temperature at 11:00 p.m. on that date remained above the freezing point of 32F, and that by 7:00 a.m. on November 29, the temperature had fallen to 28F. Thus, it may be inferred that any ice that formed in the low spot on the walkway formed sometime between 11:00 p.m. and 7:30 a.m., when claimant fell. However, the preponderance of the evidence adduced at trial does not support a finding that ice had been visible and apparent for a sufficient period of time prior to claimant's fall to permit defendant's employees an opportunity to discover and remedy the condition.
No evidence was offered that the D-2 walkway had any kind of water or puddle on the walkway in the hours before the accident that could have frozen and produced the puddle that claimant allegedly slipped upon. No witness testified that they observed ice on the D-2 walkway prior to claimant's fall. To the contrary, claimant, Serrano and Warner all testified that they traversed D-2 walkway at approximately 7:00 a.m. without incident, and there was no report that any of the twelve or so other inmates who walked the D-2 walkway between 7:00 and 7:30 observed or fell on ice. Despite claimant's surmise that the ice patch was 5 to 8 feet in length, there was no credible description of the actual characteristics, dimensions or depth of ice patch from which the Court could make a finding that the ice patch had existed for a sufficient period of time to be discovered. Claimant testified that his clothes did not get wet when he fell, and he described the ice as clear or black ice, a condition which, by its very nature, does not lend itself to being visible and apparent prior to a slip and fall (see, e.g. Spinoccia v Fairfield Bellmore Ave., LLC, 95 AD3d 993 [2d Dept 2012]; Lillie v Wilmorite, Inc., 92 AD3d 1221 [4th Dept 2012]; Williams v City of New York, 74 AD3d 479, 480 [1st Dept 2010]; Martin v RP Assoc., supra).
Nor does the evidence support claimant's argument that constructive notice should be attributed to defendant upon the theory that the ice was formed by the thaw and re-freeze of existing snow and ice, based upon the topography of the D-2 walkway, the stipulated weather conditions and the general awareness that defendant should have had of winter weather conditions in northern New York. It is inferrable that the ice formed at some point after 5:30 p.m. the day before the accident, based upon claimant's testimony that he observed no water in the low spot at that time. The evidence regarding the weather appears, in the abstract, to allow the thaw-re-freeze conditions that claimant posits, in that there was snow on the ground the day preceding claimant's fall, and that the temperature rose that day from 32F to 36F, and then fell below freezing sometime after 11:00 p.m. that evening. However, the mere fact that the temperature rose above and fell below the freezing point does not necessarily mean that a thaw-re-freeze event occurred. In particular, the recorded temperatures hovered between 31F and 33F for the entire 48-hour period prior to claimant's fall, except for when the temperature was recorded at 36F at 3:00 p.m. on the day before claimant's fall. This reasonably narrow fluctuation of temperature, along with the lack of evidence as to the length of time the temperature remained at or about 36F, and absent a more specific time when the temperature dipped below the freezing point, along with a lack of evidence of other relevant conditions, such as the absence of cloud cover or shade, for example, leads the Court to conclude that the evidence does not preponderate in favor of a determination that the ice existed for a long enough period of time for defendant to have discovered it. Simply stated, the Court cannot agree with claimant's counsel that the fact of a thaw-re-refreeze can be merely inferred, but rather, views it as being speculative for this Court - a lay finder of fact as to meteorological conditions and their affect - to conclude that such an event, in fact, occurred (cf. Boucher [proof of dip in sidewalk and expert affidavits stating that water from thawing ice or snow probably pooled in dip and that there was a freeze-thaw-re-freeze cycle the date of the accident insufficient to raise fact issue as to constructive notice]).
To the extent that claimant relies on the decision in Sullivan v State of New York (UID No. 2005-016-078 [Ct Cl, Marin, J., Dec. 22, 2005]), the meteorological facts in that case were less subtle than the instant claim, in that no snowfall was recorded during the 48 hours preceding claimant's slip and fall on black ice, yet there was an accumulation of 6 inches of snow on the ground, the temperature during that period was recorded every three hours, and the temperatures fluctuated substantially on the weekend before claimant's fall on a Monday, including a fluctuation from 26F to 39F on Saturday, and from 24F to 41F degrees on Sunday, with the temperature recorded at 30F approximately two hours before claimant's fall. Thus, the evidence was sufficient to allow the lay fact-finder to conclude that "[t]he temperature ranges above suggests a cycle of freezing and thawing" (id.), a conclusion that is not necessarily warranted upon the evidence presented at the trial of the instant claim.
In sum, and despite claimant's arguments that there was a depression that accumulated water and that the weather conditions were ripe for a thaw and re-freeze of existing snow, the Court is not persuaded by a preponderance of the credible evidence that defendant should be charged with constructive notice that there was ice on the D-2 walkway. There was no evidence of a puddle or ice a reasonable time prior to claimant's fall, the evidence failed to demonstrate that there was, in fact, any thaw and re-freeze, and even if there was such proof, there was no proof that the re-freeze occurred at a time that would have allowed defendant to discover and remedy the icy condition. Further, there was no proof that anyone else observed or slipped on the ice patch, nor was there sufficient proof of the condition of the ice from which the Court could infer that it had been present for an adequate period of time such that defendant should be charged with knowledge of its presence.
To the extent that claimant contends that defendant was negligent because it did not comply with the DOCCS procedures in its snow removal practices on November 29, 2008, such alleged negligence does not eliminate the requirement that claimant demonstrate that defendant had notice of the dangerous condition that caused claimant's accident (see Rooney v State of New York, 111 AD2d 159, 160 [2d Dept 1985]; Mickle v New York State Thruway Auth., 182 Misc 2d 967, 973 [Ct Cl 1999]).
To the extent that claimant's arguments about defendant's knowledge of the puddling condition in the walkway suggest a "recurring dangerous condition in the area of the slip and fall that was routinely left unaddressed" (Solazzo v New York City Tr. Auth., 21 AD3d 735, 736 [1st Dept. 2005], affd 6 NY3d 734 [2005]; see also Migli v Davenport, supra), and while there was evidence of a recurring accumulation of water in the location of claimant's fall, there was no evidence that there was a recurring icy condition at that location.
CONCLUSION
Defendant is not liable to claimant because the preponderance of the evidence does not demonstrate that defendant created a dangerous condition or that defendant had actual or constructive notice of the icy patch in the D-2 walkway. Any motions or objections not previously ruled upon are hereby DENIED. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.
June 27, 2012
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims