Opinion
# 2017-029-069 Claim No. 124150
11-01-2017
DEBRA ARMSTRONG v. THE STATE OF NEW YORK
DEBRA ARMSTRONG, PRO SE ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Matthew F. Feinberg, Assistant Attorney General
Synopsis
The pro se claim alleged negligence by correctional facility in failing to apply salt and shovel snow, and to cancel inmate work programs during a blizzard, resulting in inmate slipping, falling and breaking ankle. At the trial on liability, defendant failed to argue and offer evidence of immunity as a defense at trial. The court found defendant was liable for negligence to the extent that it failed to shut down the work program claimant was participating in as a "runner." Defendant was found not liable for failing to alleviate slippery ground conditions during a "storm in progress."
Case information
| UID: | 2017-029-069 |
| Claimant(s): | DEBRA ARMSTRONG |
| Claimant short name: | ARMSTRONG |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124150 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | DEBRA ARMSTRONG, PRO SE |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Matthew F. Feinberg, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 1, 2017 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this pro se claim for damages alleging that on February 3, 2014, she slipped and fell during a snowstorm as she exited a building at Bedford Hills Correctional Facility ("Bedford") and broke her ankle in two places. The claim alleges that defendant was negligent in failing to shovel snow and apply salt, failing to cancel "all program lines and movement until the grounds were secured" for walking and for delay in claimant's medical treatment (claim, ¶ 2).
Trial of this claim was conducted by video on September 26, 2017, with claimant appearing pro se, and Assistant Attorney General Matthew Feinberg appearing on behalf of defendant, at Bedford, and the court sitting in White Plains. Claimant testified on her own behalf and did not call any other witnesses.
Claimant testified that on February 3, 2014, during a blizzard, she picked up the wage sheets from the Department of Motor Vehicles program, exited the vocational building and walked down the stairs. Claimant was working for the State as a "facility runner." When she stepped off the last step onto the snow-covered ground, she slipped, fell and broke her ankle in two places. Claimant stated that there was snow everywhere and ice under the snow because there had been an ice and snowstorm for over a week; no salt had been applied and the salt barrels were empty. They did not use much salt because it hurt the paws of dogs being trained by inmates. She had previously told a maintenance worker to come over and apply salt because the ground was slippery, but nothing had been done. She had asked Officer McFadden why there was no salt (the building she was coming from was "his"). Claimant also testified about the delay in getting her off the ground and to the clinic. Nobody heard her calls for twenty minutes, and the van kept sliding down the hill. No X-ray was taken until the next day. She was taken to the hospital and had surgery that required the insertion of screws and a plate in her ankle.
The February 3, 2014 accident/injury investigation report admitted as Exh. 1 states that claimant sustained a "strain/sprain" to her right ankle, there was heavy snowfall that contributed to her falling, and that maintenance crews were "in the process of clearing and salting roads and walkways." The February 3, 2014 injury report from the facility health service admitted as Exh. 2 notes that claimant had "slight swelling" on her ankle. Claimant states in the report that there was "no blowing or salt on snow day 2/3/14," and when she fell she heard her ankle "click twice."
Defendant made a motion to dismiss the claim after claimant rested. The court granted the motion as to the cause of action for delay in treatment, on the ground that claimant had not presented expert medical testimony as required by the law to prove claims of medical malpractice or medical negligence (see Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see also Williams v State of New York, UID No. 2016-038-108 [Ct Cl, DeBow, J., April 22, 2016]). The court reserved on the motion to dismiss as to claimant's argument that defendant was negligent based on its response to the weather conditions. The trial then continued.
Defendant did not call any witnesses. There was no expert or other testimony describing or interpreting the meteorological data submitted as defendant's Exh. B. In the February 3, 2014 memorandum submitted as defendant's Exh. C, Sergeant Corbie states that he responded to a medical emergency call at the vocational building at approximately 9:35 a.m., where he found claimant on the ground, and that it was snowing. The unusual incident report admitted as Exh. D states that claimant was transported to the facility RMU for assessment and treatment, and was admitted for observation until the next day because there were no X-ray technicians available; X-rays taken and read the next day showed fractures to claimant's right tibia and fibia; and claimant was transported to Mt. Vernon Hospital for treatment.
To prove the State's liability for negligence, claimant had to present prima facie evidence that the State owed her a duty, breached that duty, and in doing so proximately caused her injuries (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]). The State's duty here arises from its proprietary status as a property owner, and from its complete control over the inmates in its custody. As a landowner, the State has a duty to act as a reasonable person would to maintain its premises in a reasonably safe condition (see Basso v Miller, 40 NY2d 233 [1976]). This duty applies to the State's responsibility for its correctional facilities (see Kandrach v State of New York, 188 AD2d 910 [3d Dept 1992]), and in that setting extends beyond the State's role as a property owner. "Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard [them]" (Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]). That duty does not, however, render the State an insurer of inmate safety. Like other duties in tort, the scope of the State's duty to protect inmates is limited to risks of harm that are reasonably foreseeable (id.; see Villar v Howard, 28 NY3d 74, 80 [2016] [finding facility need not foresee specific harm]). "To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Claimant need not demonstrate that "the precise manner in which the accident happened, or the extent of injuries, was foreseeable" (id.; see Harris v State of New York, 117 AD2d 298, 303 [2d Dept 1986]).
Claimant argued that defendant breached its duty by failing to apply salt, and by failing to shut down the work programs during the blizzard. "[I]n a slip and fall case, it is incumbent upon Claimant to establish that: (1) a dangerous condition existed; (2) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (3) such condition was a substantial factor in the events that caused the injury suffered by Claimant" (Braithwaite v State of New York, 26 Misc 3d 1239[A] [Ct Cl, 2009], citing Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Medina v Sears, Roebuck & Co., 41 AD3d 798, 799 [2d Dept 2007]).
Defendant did not dispute claimant's testimony that there was a blizzard in progress at the time claimant fell; the ground where she fell was slippery because it was covered with snow with ice underneath; salt had not been applied to the area; there had been ice and snowstorms for a week; and claimant was exiting the vocational building and walking outside because she was working as a "facility runner." The court also credits claimant's testimony that the salt barrels were empty; the facility did not use much salt because it hurt the paws of dogs being trained by inmates; she told a maintenance worker to come over and apply salt because the ground was slippery, but nothing was done; and she asked Officer McFadden why there was no salt.
The court finds there is prima facie evidence that defendant knew or should have known the ground was slippery because of unsalted ice under snow, a dangerous condition. Defendant had actual notice of the specific condition from claimant's communications with the maintenance worker and the officer. It was also reasonably foreseeable that ice and snowstorms could result in dangerous, slippery conditions without the application of salt.
The next inquiry is whether defendant failed to alleviate the dangerous condition within a reasonable time. Defendant argued correctly at trial that it was excused from applying salt while there was a storm in progress. "Under the storm in progress rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm" (DeChica v Saldana, 153 AD3d 782 [2d Dept 2017]; see Solazzo v New York City Tr. Auth., 6 NY3d 734 [2005]; see also Smith v Christ's First Presbyt. Church of Hempstead, 93 AD3d 839, 840 [2d Dept 2012]).
The question then becomes whether the evidence shows that defendant had notice of the dangerous condition and failed to alleviate it before the storm began. Claimant's only evidence of weather conditions before the day she fell was her testimony that there had been ice and snowstorms for over a week. Without evidence that these storms abated at any point during the week allowing defendant a reasonable opportunity to apply salt, under the storm-in-progress rule its failure to do so does not prove breach of its duty to safeguard claimant and keep the grounds reasonably safe.
However, claimant also asserts as a basis for defendant's negligence that Bedford should have suspended the work programs until the grounds could be made safe. The issue raised by this assertion is whether the State should have restricted her movement outdoors while the storm was in progress. Judge Patti addressed a similar issue in DeGregorio v State of New York, UID No. 2008-013-510 (Ct Cl, Oct. 20, 2008), in which an inmate slipped and fell on ice at approximately 7:50 a.m. as he walked to his job as a porter in the school building at Orleans Correctional Facility. There had been an ice storm a few days earlier, then warmer weather with some melting. In the early morning hours before claimant fell, and starting the afternoon of the prior day, temperatures fell and there was light snow and drizzle, causing icy conditions. Defendant argued there was a storm in progress with snowy and icy conditions. Judge Patti made the following observations:
"Here the storm in progress theory works as a sword and a shield for the Defendant. Thus, if the weather was severe enough to constitute a storm [. . .], then was the Defendant given a sufficient period of time to plow and salt before the Claimant traversed the area? The countervailing question arises: if the storm was in progress and an insufficient period of time to plow and salt the walkways was allotted, should the Defendant, which has complete custody and control over the movement of inmates [. . .] have restricted inmates from walking on as yet untreated walkways? The Defendant cannot have it both ways."
Liability for negligence was found in DeGregorio because the State was on notice of icy, dangerous conditions on walkways, yet "failed to act in a diligent manner, to wit, by salting and/or prohibiting perambulation on unsalted icy walkways" (id.). Unlike the circumstances in DeGregorio, the evidence presented by claimant here did not show that defendant had both notice of a dangerous condition and a reasonable opportunity to alleviate that condition before claimant fell. The court has already determined that claimant did not present prima facie evidence that the storms she testified had been ongoing for a week abated at some point allowing defendant a reasonable opportunity to apply salt. Defendant's duty to alleviate the dangerous condition was suspended during the storms and, thus, could not have been breached by defendant's failure to apply salt.
Claimant's other argument, that defendant should have shut down the work program, requires a different analysis. Defendant's duty to safeguard its inmates from reasonably foreseeable risks of harm stems from its custody and control over those incarcerated in its correctional facilities. That duty extends to all reasonably foreseeable risks of harm, such as attacks by other inmates (see Sanchez at 254), injuries from facility defects (Forbes v State of New York, UID No. 2013-009-041 [Ct Cl, Midey, J., Jan. 8, 2014]), risks of suicide (see Gordon v City of New York, 70 NY2d 839, 840 [1987]), slipping on icy walkways (see DeGregorio v State of New York, UID No. 2008-013-510 [Ct Cl, Patti, J., Oct. 20, 2008]), or workplace accidents (see Letterese v State of New York, 33 AD3d 593 [2d Dept 2006]).
Claimant's evidence showed there had been ice and snowstorms for a week, there was a blizzard in progress when she fell outside, there was snow everywhere, ice under the snow had not been treated with salt, there was no salt in the facility containers, the facility avoided applying salt because of the dogs, and she was working as a facility runner that day when she slipped and fell on leaving the vocational building after picking up time sheets. It is reasonable to infer from the evidence that claimant's job as a runner required her to move between buildings, that Bedford's staff knew claimant would be walking outside during a blizzard, and she would be walking on snow covering ice that had not been treated. Claimant proved by a preponderance of the evidence that her slipping and falling under these conditions was reasonably foreseeable.
The fact that claimant's exact assignment required her to move outdoors between buildings is a critical factual matter in this case. Absent such a specific requirement, it is entirely possible this outcome would be different.
The court finds that defendant could have alleviated the risk to claimant by not requiring her to walk outside until the grounds could be plowed and salted, either by stopping her work as a runner, or otherwise shifting her work location. The next logical step in the court's analysis would be to determine whether the continuation of the work program during the snowstorm was a discretionary decision by Bedford, and if so, whether defendant is immune from liability based on that decision. Defendant pled governmental immunity as an affirmative defense in its answer, and it was defendant's burden to prove that defense (see Villar v Howard, 28 NY3d 74, 80-81 [2016] [agreeing that defendant had burden of proof on affirmative defense of immunity, but declining to reach the issue on the merits], citing Valdez v City of New York, 18 NY3d 69, 79-80 [2011]).
Claimant did not testify that she lacked control over when and where she was required to work, but she was incarcerated, and generally inmates' movements and all programs in correctional facilities are under the State's control. --------
A discretionary decision is one which involves "the exercise of reasoned judgment which could typically produce different acceptable results" while a ministerial act "envisions direct adherence to a governing rule or standard with a compulsory result" (Tango v Tulevech, 61 NY2d 34, 41 [1983]). Defendant did not present any evidence to establish its affirmative defense of immunity. There is no evidence in the record pointing to any standard, rule, directive or other policy to which Bedford was adhering. Further, there is no evidence that the decision whether or not to shut down claimant's work program or otherwise change her work location was a discretionary one left to the judgment of the facility or those supervising the programs. Based on this record, the State has not shown what decision was made or whether any discretion was exercised and thus has not supported the affirmative defense of governmental immunity. Given the burden of proof stated in Villar, the court cannot find immunity in this matter. From this record, it is more likely that no decision was actively considered and thus no discretion was exercised. Accordingly, the court denies defendant's motion to dismiss as to claimant's argument that defendant was negligent based on its response to the weather conditions and finds the State 100% liable for negligence. The Clerk of the Court is directed to enter an interlocutory judgment of liability. A damages trial will be scheduled as soon as practicable.
November 1, 2017
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims