Opinion
# 201-050-508 Claim No. 129435
12-17-2019
TEXTOR v. THE STATE OF NEW YORK
Downing & Peck, P.C. By: Ernest J. Peck, Esq. Hon. Letitia James, Attorney General By: Alex J. Freundlich, Assistant Attorney General
Synopsis
Case information
| UID: | 201-050-508 |
| Claimant(s): | JOANNE D. TEXTOR |
| Claimant short name: | TEXTOR |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129435 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Downing & Peck, P.C. By: Ernest J. Peck, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Alex J. Freundlich, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 17, 2019 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
A bifurcated trial concerning the issue of liability only was held in this matter. The subject claim arose on February 11, 2017 at approximately 4 p.m. when claimant Joanne Textor slipped and fell on the boardwalk at Jones Beach State Park.
Claimant testified that the day of the incident was a clear and dry winter day and that she, her sister and her mother traveled together to Jones Beach State Park to go for a walk on the boardwalk. She stated that she parked the car in the first available lot and recalled seeing a sign that said, "Restaurant, Administration Buildings, Boardwalk" (Tr. 17:18-19). The three women left the parked car and walked up the entrance ramp by the Park Information building, heading toward the boardwalk and beach. Claimant's sister and mother then went to use the restrooms in the building adjacent to the information building while claimant testified that she began walking toward the railing on the far side of the boardwalk, near the beach. She testified that the boardwalk area directly in front of the information building was completely clear of snow (Tr. 31:13-14), but that she saw "thin strips of snow, that were low to the ground on the boardwalk" (Tr. 30:10-11). She testified that as she stood in the snow-free area and looked south toward the ocean, she saw "a thin area of snow that ran east to west, on the boardwalk" (Tr. 31:24-25). She recalled that the area that had some lines of snow had a path through it which was about two feet wide; she walked on the path heading south toward the center of the boardwalk. As she did so, she "slipped on ice" (Tr. 36:24) which she stated she did not see until she fell. She testified that she badly injured her left ankle in the fall and stayed sitting on the boardwalk where she fell while waiting for medical attention. She testified that it was then that she noticed that she was sitting in a cold, icy patch. A couple walking by came to her assistance and called 911. Claimant testified that a Jones Beach State Park employee arrived at the scene about 25 minutes after she fell and five minutes after that two emergency medical technicians (EMTs) arrived.
References to the trial transcript are designated "Tr." followed by the page number/line number. --------
Claimant's deposition testimony was that she did not "fall over any particular object or slip over anything" (Tr. 52:15-18) When asked at her pretrial deposition, "Was the surface of the boardwalk slippery? Is that what caused you to fall?" claimant responded, "Not that I saw" (Tr. 52-53). When asked at her pretrial deposition as to whether she knew what had caused her accident, claimant responded, "I slipped. I slipped on something. I slipped on something that appeared to be ice" (Tr. 53:4-6) but when pressed admitted that she could not say for sure that she had slipped on ice. Her testimony at trial was that she was not sure what she had slipped on but assumed it must have been ice because she found herself in an icy patch after her feet went out from under her and she fell on her rear end.
Lawrence Anderson, an assistant manager at Jones Beach State Park with nineteen years experience in various positions at the park, testified that his duties the date of the incident included supervision of snow and ice removal on the boardwalk. He stated that the boardwalk was open seven days a week all year and typically from sunrise to sunset. Mr. Anderson testified that when snowfall accumulated to more than a dusting but less than half an inch, snow and ice removal would be initiated along the boardwalk. First, a walkway would be established along the entire length of the approximately two-mile long boardwalk, running east and west. Second, pathways to the entrances of buildings, bathrooms, to benches and access points to the beach would be established. After basic, narrow paths were established, the employees would go back and continue to widen these paths. In the process of widening the paths, piles of snow would form on the left and right sides of the boardwalk. Sometimes those piles of snow could freeze, then melt when the temperature rose, and sometimes later refreeze as ice. Mr. Anderson testified that sand, salt or fertilizer were never put on icy or wet patches on the boardwalk because the substances could damage the boards.
Mr. Anderson testified that he worked 7:00 a.m. to 5:30 p.m. on February 11, 2017 and that he had two employees assigned to conduct snow removal from the section of the boardwalk where claimant fell. He testified that he was not the ranking supervisor for the area in question that day and thus did not conduct any inspections of the snow and ice removal. He testified that generally the snow removal would proceed using shovels. Mr. Anderson stated that he checked the area in question several times on February 11, 2017 to make sure that the employees were removing snow and ice and that he had determined the condition of the boardwalk where claimant fell was safe for pedestrians to use.
Mr. Anderson responded to the scene of the accident shortly after claimant fell. His testimony was that he observed claimant sitting on the ground facing east in the general area that she identified as the site of her fall. He stated that the strip of snow that claimant walked through and fell near was created by the workers removing the snow from the center of the boardwalk and that much of the boardwalk was clear and dry. He testified that there were other pedestrians using the boardwalk that day but no other complaints about snow and ice nor reports of any other pedestrians having slipped on the boardwalk prior to claimant's accident. He also testified that there were alternate cleared paths claimant could have used to proceed from the Park Information Office to the railing on the other side of the boardwalk. Mr. Anderson's pretrial testimony was that during each winter all of the designated entrances onto the boardwalk had signs warning of potential slippery conditions and warning pedestrians to proceed with caution. He testified that about five minutes after claimant was removed by the EMTs, he took photographs of the area, several of which were admitted into evidence.
Jocelyn Smith, the emergency medical services supervisor at Jones Beach State Park, testified that she responded to the scene of claimant's accident on February 11, 2017. When she arrived, she found claimant sitting on the boardwalk. Ms. Smith noted in her report of the incident that it was 40° and clear with excellent visibility. Her report states that claimant told her she was walking east on the boardwalk when she slipped and fell. Ms. Smith's testimony was that the strips of snow near where claimant fell were remnant lines of snow piles created by the removal of snow from the center of the boardwalk and pushed to the edges. Ms. Smith testified that there was snow on the ground and some of the boardwalk was wet, which could make it slippery. She also testified that signs warning of slippery conditions would be put up each year in the late Fall and taken down in April or May.
Karli Wimmer was employed by the New York State Park Police on February 11, 2017 and responded to the incident involving claimant. She testified that claimant told her she had been walking from the west on the boardwalk toward the east when she fell. Officer Wimmer observed that claimant appeared to be in pain and that she had two females with her.
To prove a prima facie case of negligence, claimant must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries (see Fox v Marshall, 88 AD3d 131 [2d Dept 2011]). The State has a duty to act as a reasonable person would in maintaining its premises in a reasonably safe condition (Basso v Miller, 40 NY2d 233 [1976]; Peralta v Henriquez, 100 NY2d 139 [2003]). However, the State "is not an insurer against every injury that might occur on its property" (Covington v State of New York, 54 AD3d 1137 [3d Dept 2008]). A claimant must establish that defendant created or had actual or constructive notice of the dangerous condition which caused her injury and that it failed to take appropriate remedial action (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Kane v Peter M. Moore Constr. Co., Inc., 145 AD3d 864 [2d Dept 2016]). "To constitute constructive notice, the defect must be visible and apparent and it must exist for a sufficient length of time before the accident to permit the defendant an opportunity to discover and remedy it" (Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798 [2d Dept 2003]).
Here, the evidence established that it had snowed lightly the evening prior to claimant's accident. Defendant began clearing the boardwalk the following morning and cleared the center of the boardwalk. The evidence demonstrated that there were some patches of ice and snow on the edges of the boardwalk but that the areas on either side of the thin strip of snow and ice near where claimant fell were clear and mostly dry. As to the areas of the boardwalk which were wet or still had areas of snow and/or ice, sand or salt could not be used on the boardwalk because to do so would damage the boardwalk. There were no other reported accidents or complaints about slippery conditions on the day of claimant's accident.
General awareness that snow and or ice may be present is legally insufficient to constitute notice of the particular condition that caused a person's injury (see Piacquadio v Recine Realty Corp., 84 NY2d 967 [1994]; Solazzo v New York City Tr. Auth., 6 NY3d 734 [2005]; Atkins v State of New York, 123 AD3d 644 [2d Dept 2014]; Kaplan v DePetro, 51 AD3d 730 [2d Dept 2008]). Claimant failed to establish that defendant had notice of the specific icy or slippery condition upon which claimant fell (Chavez v State of New York, 139 AD3d 994 [2d Dept 2016]; Atkins v State of New York, 123 AD3d 644 [2d Dept 2014]). Additionally, claimant failed to establish that defendant created the specific slippery condition by merely brushing the snow aside to create a clear path in the middle of the boardwalk (id.; Quintanilla v State of New York, 94 AD3d 846 [2d Dept 2012]; Wohlars v Town of Islip, 71 AD3d 1007 [2d Dept 2010]; see also Espinal v Melville Snow Contrs., 98 NY2d 136 [2002]). The failure, during snow removal, to remove all the snow or ice from a pathway or parking lot does not, without more, constitute negligence and does not constitute a creation of a hazardous condition (id.).
Additionally, claimant contends that her slip and fall was due to her having to pass through a line of scattered snow and ice to get from the clear, dry area in front of the Park Information building to the other side of the main east/west boardwalk, moving in a north to south direction. However, the credible evidence established that she was found sitting facing east after her feet went out from under her and, according to her testimony, she fell on her bottom. Claimant stated to Ms. Smith and Officer Wimmer that she had been walking east on the boardwalk when she fell and Mr. Anderson testified that claimant was sitting on the boardwalk facing east when he arrived at the scene. Based on the credible evidence, it seems more likely that claimant fell while walking near but not through the area of snow remnants, perhaps falling back into a wet or icy path.
Regardless of the direction claimant was walking when she slipped, the evidence established that there was an ongoing snow removal operation by defendant starting that morning due to the light snowfall the previous evening and that the boardwalk was reasonably safe for pedestrian traffic. Claimant has not established that defendant failed to exercise due care in maintaining the boardwalk. Contrary to the claimant's contention, the State had no more than a general awareness that icy conditions might have developed on the two-mile long boardwalk, which was insufficient to constitute notice of the specific condition that caused the claimant to fall (see Atkins v State of New York, 123 AD3d 644 [2d Dept 2014]). Further, the strip of snow and ice present between two clear and dry portions of boardwalk was open and obvious. Defendant had no duty to warn of "a condition that can be readily observed by the reasonable use of senses. The situation is then a warning in itself" (DeMarrais v Swift, 283 AD2d 540 [2d Dept 2001]). Thus, the Court finds that defendant acted reasonably under the circumstances and that liability cannot be imposed against defendant in this matter.
Therefore, for the foregoing reasons, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, her claim against defendant in this action. Accordingly, the claim is hereby dismissed in its entirety. Any motions upon which the Court has previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly.
December 17, 2019
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims