Opinion
# 2014-041-508 Claim No. 121218
09-02-2014
KENNETH JOHNSON v. THE STATE OF NEW YORK
POISSANT, NICHOLS, GRUE &VANIER, P.C. By: Thomas A. Grue, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General
Synopsis
Inmate/claimant who slipped and fell on prison walkway while winter storm was in progress failed to prove by a preponderance of the credible evidence that the defendant was negligent in its snow removal planning or practices where no slips or falls were reported that day prior to claimant's fall, despite substantial inmate pedestrian movement, no complaints of icy conditions were made to defendant and no persuasive proof was presented to establish that defendant created a dangerous condition upon which claimant slipped and fell.
Case information
| UID: | 2014-041-508 |
| Claimant(s): | KENNETH JOHNSON |
| Claimant short name: | JOHNSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121218 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | POISSANT, NICHOLS, GRUE &VANIER, P.C. By: Thomas A. Grue, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael C. Rizzo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 2, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Kenneth Johnson (claimant) slipped and fell, injuring himself, on January 27, 2012, while incarcerated at the Bare Hill Correctional Facility (BHCF) located in Malone, New York, a facility at which he had been housed since 2010. He fell at approximately 6:15 p.m., as he walked from his educational program to the mess hall, along a pathway designated for inmate pedestrian traffic. There is no factual dispute that it was snowing heavily at the time of claimant's fall, and that it had been snowing steadily from the time claimant departed his educational program to the time of his fall. There is no factual dispute, additionally, that defendant was in the midst of snowplowing the area where claimant fell (having made at least one pass of the area prior to claimant's fall) at the time of his fall, and further, that defendant was not applying salt or sand during this particular plowing effort.
After claimant left his educational program at the rear of BHCF, he began a several-minute walk to the mess hall, and as he neared the facility commissary, while walking in a designated, paved path in which inmates are required to walk, he slipped and fell, fracturing his ankle. The claimant acknowledged that it was snowing heavily at all times during his walk to the mess hall, a fact that all trial witnesses confirmed. The claimant described the area of his fall as follows, "The region in that area, it was just rough, a lot, a lot of snow, a lot of ice." When asked specifically upon what he slipped and fell, claimant answered, "[s]lip on ice or snow or something like that was on the ground right there."
Several witnesses, including claimant himself, BHCF general mechanic John LaFlesh and Correction Officer [CO] James Rolland (who witnessed claimant's fall), testified that a facility snow plow had plowed the very area of claimant's fall just minutes prior to his fall. Mr. LaFlesh was operating the plow, but no salt or sand was being dispensed during this plowing operation. Snow continued to fall heavily after claimant's fall and continued while he was being attended at and removed from the scene of his fall.
Mr. LaFlesh's wintertime duties at BHCF included snowplowing. On the day of claimant's fall, Mr. LaFlesh was called in for overtime at approximately 5:20 p.m. Documentary evidence (Exhibits 2 and 3), supported by credible trial testimony, demonstrated that Mr. LaFlesh entered the secured, interior portion of the facility at 5:55 p.m., and plowed from that time until 7:45 p.m. Following established written protocols (Exhibit C), he first plowed the area necessary for emergency use, from the entranceway of the secured interior (identified as the "sallyport") to the facility infirmary. The protocols dictate that the main interior roads then be next plowed. This, Mr. LaFlesh did. Claimant was walking upon these roads at the time of his fall. These roads are plowed pavement edge to pavement edge, and include the delineated (by yellow paint) path in which inmates are required to walk, immediately aside the vehicular travel lane. Mr. LaFlesh also explained that during periods of heavy snow, the roads would only be plowed initially. Salt and sand would not be initially applied during periods of heavy snow, lest they simply be plowed away by subsequent passes of the plow.
January 27, 2012 was a day of inclement weather at BHCF. Mr. LaFlesh (among several other BHCF employees) had been called in at 3:00 a.m. that day to plow, salt and sand the facility, prior to his 5:20 p.m. call out. Exhibit 2 further documented that two additional BHCF employees (Cosgrove and Niles) salted the interior, secure roadways a total of three times between the hours of 4:30 a.m. and 9:30 a.m. on January 27, 2012.
Robert Gravel was the maintenance supervisor at BHCF on January 27, 2012, responsible for, among other things, supervising up to 12 employees in snow and ice removal efforts who would utilize six plows, a dump truck with sander and a front end loader, to plow, salt and sand the facility. All of Mr. Gravel's employees were civilian employees, and no inmates maintained the roads involved in this claim.
Having authored the "Plowing Procedures" protocols memorialized by Exhibit C, Mr. Gravel credibly confirmed and reinforced the snow and ice removal practices employed at BHCF to which Mr. LaFlesh had testified, and he further interpreted Exhibits 2 and 3 to describe what specific efforts were undertaken to remove snow and ice at BHCF on January 26, 2012 and January 27, 2012. Mr. Gravel further testified, as did Mr. LaFlesh, that the area of claimant's fall was not one prone to ice formation, nor had he previously received complaints of ice regularly forming there.
CO James Rolland was posted to "D Rec Point" at the time of claimant's fall. "D Rec Point" is a small building with windows located approximately 75 yards from the site of claimant's fall, utilized to observe and monitor inmate pedestrian movement. CO Rolland testified that it had been snowing heavily for 30-60 minutes prior to claimant's fall. He also confirmed that the area of claimant's fall had been plowed minutes prior to the fall. Between 5:25 p.m. and 6:15 p.m., CO Rolland observed between 400-500 inmates moving for "recreation and chow run." On January 27, 2012, CO Rolland observed no slips or falls other than claimant's, nor had he received any complaints about the roadway conditions. CO Rolland walked that area four times that day and reported seeing no ice. He further testified to not previously observing the area in question as prone to ice formation, nor being aware of any previous falls or complaints of ice there.
CO Rolland observed claimant fall and responded immediately. He reported that the ground in that area was covered in snow, snow having continued to fall since the road was plowed minutes earlier, but testified to observing no ice. Claimant testified, as did inmate Strickland through admitted deposition testimony, that the area of claimant's fall was substantially iced, although claimant was indefinite at trial about whether or not he actually slipped on ice. CO Rolland did sign a contemporaneously created accident report (Exhibit 5) which reported "Claimant stated that he slipped and fell on the ice while he was walking on the walkway."
The State has a duty to maintain its facilities in a reasonably safe condition (Preston v State of New York, 59 NY2d 997 [1983]). However, the State is not an insurer of the safety of its inmates, and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850 [1985]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). To prevail on a claim alleging premises liability, claimant must prove that a dangerous condition existed; that the State either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that the dangerous condition was a proximate cause of the accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]).
The Court of Appeals has instructed that a municipality will be held liable where snow or ice creates an interference with travel that is: "(1) Dangerous, (2) Unusual or exceptional; that is to say different in character from conditions ordinarily and generally brought about by the winter weather prevalent in the given locality" (Williams v City of New York 214 NY 259, 263-264 [1915]; see Dello v State of New York, 105 AD2d 571, 572-573 [3d Dept 1984]).
It is clear that "proof [that] establishes nothing more than defendant failed to remove all of the snow and ice from the subject [area] . . . does not constitute negligence" (Cardinale v Watervliet Hous. Auth., 302 AD2d 666 [3d Dept 2003]).
It is a well-established principle that reasonable efforts, not extraordinary efforts, be used to address winter conditions in New York (Cohen v New York City Hous. Auth., 44 AD2d 817, 818 [1st Dept 1974]; De Boulet v City of New York, 192 AD 359 [1st Dept 1920]; Fox v State of New York, 35 Misc 2d 728, 730 [Ct Cl 1962]).
In O'Neil v Ric Warrensburg Assoc., LLC (90 AD3d 1126 [3d Dept 2011]), the court explained that in claims arising during snowstorm, "defendant [has] a reasonable period after the storm [has] stopped to remedy storm-related dangerous snow and ice conditions." Further, "[w]here . . . a defendant has undertaken snow removal efforts in the context of an ongoing storm, the relevant inquiry becomes whether the defendant's efforts either created a hazardous condition or exacerbated a natural hazard already created by the snowstorm" (Gentile v Rotterdam Sq., 226 AD2d 973, 974 [3d Dept 1996]; see Wheeler v Grande'Vie Senior Living Community, 31 AD3d 992, 993 [3d Dept 2006]).
These legal principles guiding consideration of a claim involving a slip and fall on ice or snow are concisely summarized in Marcellus v Littauer Hosp. Assn (145 AD2d 680, 681 [3d Dept 1988]):
"Analysis of a case involving a slip and fall in winter conditions starts with the well-settled principle that a party who possesses or controls real property is under a duty to exercise reasonable care under the circumstances . . . . This standard must be applied with an awareness of the realities of the problems caused by winter weather . . . . Thus, 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 . . . . A defendant is afforded a reasonable time after the cessation of the storm or temperature fluctuations which created the dangerous condition to exercise due care to correct the situation."
The Court, based upon the foregoing, and upon credible trial evidence, makes the following findings:
1. Claimant's accident occurred in the middle of winter in northern New York;
2. Claimant had been at BHCF since 2010, and had experienced one full winter cycle of weather prior to his fall;
3. Defendant had written wintertime maintenance protocols and practices in place on January 27, 2012 at BHCF, and those protocols and practices were followed that day;
4. Defendant had substantial personnel and equipment to implement its protocols and practices, and those assets were utilized on January 27, 2012;
5. The secure, interior facility roadways had been salted three times before 9:30 a.m. on January 27, 2012;
6. There was a storm in progress and it was snowing heavily prior to and at the time of claimant's fall;
7. In response to the ongoing storm, plowing of the secure, interior facility roadways was underway and the area of claimant's fall had been plowed minutes before his fall;
8. Plowing of the secure, interior facility roadways continued for almost two hours during the ongoing storm, from approximately 5:55 p.m. to 7:45 p.m. Claimant fell at approximately 6:15 p.m.;
10. The spreading of salt or sand during the heavy snow of the ongoing storm of January 27, 2012 and while plowing was ongoing, would have been wasteful and ineffective, as subsequent passes of the plow would have plowed the salt or sand from the roadways;
11. No slips or falls were reported that day prior to claimant's fall, despite substantial inmate pedestrian movement, and no complaints of icy conditions were made to defendant;
12. No proof was presented that the area of claimant's fall was prone to ice formation. To the contrary, testimony was received to the opposite effect, that no observations of regular ice formation at that location had been made;
13. No proof was presented that the area of claimant's fall had regularly been the site of previous falls. To the contrary, testimony was received to the opposite effect, that no observations of previous falls at that location had been made;
14. Assuming that claimant slipped and fell on ice on January 27, 2012, no credible proof at trial or expert proof was presented to address, or prove, the length of time the ice upon which claimant fell had existed prior to his fall; and,
15. No credible or persuasive proof was presented to establish that defendant created a dangerous condition upon which claimant slipped and fell.
With the foregoing in mind, the Court finds that claimant failed to prove by a preponderance of the credible evidence that the defendant was negligent in its care of the grounds of BHCF on January 27, 2012. Even assuming claimant slipped and fell on ice that day, defendant cannot reasonably be expected to eradicate every square foot of ice in the traveled areas of BHCF in the middle of winter in Malone, New York. To expect or require that obligation of defendant would render defendant an insurer of all inmate, employee and visitor safety. All that is legally required of defendant is that it undertake reasonable steps to address wintertime conditions of snow and ice. This, defendant did.
While regrettable and unfortunate that claimant endured a painful fall and injuries on January 27, 2012, the mere fact of such an accident does not establish defendant's liability. The Court assesses the conduct of defendant on January 27, 2012 to address weather conditions at BHCF, far from constituting negligence, to have been comprehensive, appropriate and reasonable.
The claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.
September 2, 2014
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims