Opinion
# 2015-039-438 Claim No. 118118
01-14-2015
SMITH PERCINTHE v. STATE OF NEW YORK
Smith Percinthe, pro se Hon. Eric T. Schneiderman Attorney General of the State of New York By: Ray Kyles Assistant Attorney General
Synopsis
Following a unified trial, the Court finds that claimant failed to prove, by a preponderance of the credible evidence, his claim against defendant for damages related to injuries he allegedly sustained after slipping and falling on an icy walkway at Mohawk Correctional Facility. Claimant failed to present sufficient credible evidence establishing that a dangerous condition - the existence of black ice - existed on defendant's property. Claimant also failed to show that the State created or had notice of the alleged dangerous condition.
Case information
| UID: | 2015-039-438 |
| Claimant(s): | SMITH PERCINTHE |
| Claimant short name: | PERCINTHE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118118 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | James H. Ferreira |
| Claimant's attorney: | Smith Percinthe, pro se |
| Defendant's attorney: | Hon. Eric T. Schneiderman Attorney General of the State of New York By: Ray Kyles Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 14, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate appearing pro se, filed the instant amended claim with the Clerk of the New York State Court of Claims on March 29, 2010. The amended claim seeks damages for injuries allegedly sustained by claimant on December 26, 2009 at Mohawk Correctional Facility in Rome, New York. Claimant alleges that, between 8:00 A.M. and 9:00 A.M. that day, while returning to his housing unit from a visit to the infirmary, he "approached the entrance step of the icy and snowy sidewalk of [his housing unit], [and] lost [his] balance and fell on the edge of the sidewalk step" sustaining numerous injuries to his lower back, hips, neck and left arm (Claim ¶ 2).
The original claim was filed on March 9, 2010.
Issue was joined, discovery ensued and a unified trial of this matter was held before the undersigned, via video conferencing technology, on September 18, 2014. At trial, claimant testified on his own behalf and offered three documents, which were received into evidence without objection. Defendant called Kyle Kelsey, a correction officer with the New York State Department of Corrections and Community Supervision (hereinafter DOCCS), and also offered several documents into evidence. The parties also submitted post-trial memoranda.
Claimant's three exhibits consist of: (1) a notice of intention to file a claim, (2) the amended claim and (3) a drawing by claimant.
Claimant objected to the admission of Defendant's Exhibit C, a copy of an inmate injury report generated as a result of the accident. The Court overruled the objection and the evidence was received into evidence. Claimant also objected to the admission of one page of Defendant's Exhibit D, a medical record from Radiology Associates of New Hartford, dated December 30, 2009. At trial, the Court reserved on the objection. Upon consideration, the Court sustains claimant's objection and will not admit the evidence.
The Court notes that claimant has attached documents to his post-trial memorandum. These documents were not offered or admitted into evidence at trial and the Court has not considered them.
FACTS
At trial, claimant testified that, between 8:00 A.M. and 9:00 A.M. on December 26, 2009, he left his housing unit - 56A - to go to the infirmary to get his medication. A correction officer let him out of the building, and claimant saw "black ice" on the concrete walkway/sidewalk in front of the doorway. He informed the officer that there was black ice, that it was slippery and that salt needed to be applied. He testified that he "almost slipped" and then went to the infirmary, where he took his medication. On his return trip, he tried to get around the black ice but "there was no way [he] could've . . . gotten around the ice" and it caused him to fall. Claimant testified that he fell on the edge of the sidewalk near the entrance to 56A. Two other inmates witnessed his fall. He estimated that the sidewalk in question was about "30 to 40 steps" long and went from 56A to a roadway. He testified that his accident occurred when he stepped from the roadway onto the sidewalk to 56A; he explained that he fell "on the step of the curb". He drew a diagram of the area where he fell, and it was admitted into evidence as Claimant's Exhibit 3. He testified that there was light snow and light rain that day and the whole sidewalk was icy.
Except where noted, all quotations are from the audio recording of the trial.
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Claimant testified that he had back pain and went to the infirmary after the accident. He was given a cane and medication and sent back to his room. He testified that, as a result of this accident, he visited the infirmary on a "monthly basis". He also saw a physical therapist for his back pain during a period of time in 2011 when he was out of prison. Claimant testified that, at the present time, he has "sharp pains" in his lumbar spine that make him "very uncomfortable". He also testified that his right leg "gets a little numb".
On cross-examination, claimant testified that he filed a grievance with respect to the incident shortly after it happened and acknowledged that he did not mention in the grievance that he had informed a correction officer of the icy or slippery condition prior to his fall. He further testified that he had "chronic" back pain prior to the instant accident and acknowledged that he had a preexisting back injury, namely, a herniated disk. He affirmed that defendant's witness, Kyle Kelsey, was the officer to whom he reported the slippery or icy condition.
For defendant, Officer Kelsey testified that he is currently employed by DOCCS as a correction officer at Mohawk Correctional Facility. He has worked as a correction officer at Mohawk since 1997. He testified that he was familiar with claimant. On December 26, 2009, he worked the 6:30 A.M. to 2:30 P.M. shift and was the unit officer at 56A that day. He explained that there are five dorms in Building 56, and 56A is a housing unit in that building which houses 62 inmates. He testified that, in inclement weather, a crew plows the major walkways, the grounds crew salts the walkways and each door is supplied with a bucket of salt for use as needed. He affirmed that it was protocol at the facility to keep the walkways free of snow and ice.
Officer Kelsey recalled that an incident occurred on December 26, 2009 with respect to claimant. He testified that claimant had returned to the housing unit and reported that he had fallen and needed to report to emergency sick call. He did not see claimant slip and fall. He testified that, with respect to 56A, morning chow begins between 6:30 A.M. and 6:45 A.M. An inmate would have to exit the housing unit to get to chow. He testified that, on December 26, 2009, during morning chow, he was not informed by anyone of any slippery conditions with respect to the walkway at 56A. Officer Kelsey testified that he did not recall claimant informing him of a slippery or icy condition on that walkway. He testified that he entered and exited that door and used the walkway while he was working, and he did not notice any icy or slippery conditions. Generally, if the walkway is icy or snow-covered, he would shovel or salt down the area. Officer Kelsey testified that he wrote an inmate injury report with respect to the incident (see Defendant's Exhibit C).
Officer Kelsey further testified that it was the policy at Mohawk for the watch commander to keep a chronological log of events occurring there, including the weather conditions and temperature during each shift. The Court admitted into evidence a copy of that log which included the date in question. For the morning to afternoon "6-2" shift on Saturday, December 26, 2009, the log lists the weather as "rain-icing," with a temperature of 33 degrees (see Defendant's Exhibit A, at 18). Officer Kelsey testified that the watch commander's log for that day does not indicate that any reports were made of icy or slippery conditions on the walkways.
ANALYSIS
The State, as a landowner, has a 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' " (Miller v State of New York, 62 NY2d 506, 513 [1984], quoting Preston v State of New York, 59 NY2d 997, 998 [1983]; see Covington v State of New York, 54 AD3d 1137, 1137-1138 [3d Dept 2008]). This duty, which extends to the State's correctional facilities (see Braithwaite v State of New York, 26 Misc 3d 1239[A] [Ct Cl 2009]), obligates defendant " 'to use reasonable care to protect its inmates from foreseeable risks of harm' " (Reid v State of New York, 61 AD3d 1063, 1064 [3d Dept 2009], quoting Melendez v State of New York, 283 AD2d 729, 729 [3d Dept 2001], appeal dismissed and lv dismissed 97 NY2d 649 [2001]). The State, however, "is not an insurer against every injury that might occur on its property" (Covington v State of New York, 54 AD3d at 1137-1138), and "[n]egligence cannot be presumed from the mere happening of an accident" (Mochen v State of New York, 57 AD2d 719, 720 [4th Dept 1977]; see Melendez v State of New York, 283 AD2d at 729.
"In order to establish that the State is liable for a claimant's injuries, there must be proof that the State created a dangerous condition or had actual or constructive notice of a dangerous condition, that it failed to properly act to correct the problem or warn of the danger, and that such failure was a proximate cause of the claimant's injuries" (Dispenza v State of New York, 28 Misc 3d 1205 [A] [Ct Cl 2010]; see Harjes v State of New York, 71 AD3d 1278, 1279 [3d Dept 2010]). "[W]hether a dangerous or defective condition exists on the property of another so as to create liability 'depends on the peculiar facts and circumstances of each case and is generally a question of fact for the [factfinder]' " (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997], quoting Guerrieri v Summa, 193 AD2d 647, 647 [2d Dept 1993]). " '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 [defendant] to discover and remedy it' " (Crawford v AMF Bowling Ctrs., Inc., 18 AD3d 798, 799 [2d Dept 2005], quoting Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Cantwell v Rondout Sav. Bank, 55 AD3d 1031, 1032 [3d Dept 2008]). Furthermore, the reasonable care standard "must be applied with an awareness of the realities of the problems caused by winter weather . . . 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" (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681 [3d Dept 1988]).
Upon application of these principles to the facts presented here, and after weighing the evidence proffered at trial, including the exhibits received into evidence and considering the testimony and demeanor of the witnesses, the Court finds that claimant has failed to establish, by a preponderance of the credible evidence, his claim of negligence against defendant.
The Court finds that the evidence proffered by claimant is insufficient to establish that a dangerous condition existed on defendant's property at the location where claimant slipped and fell on the date of the accident. On this point, claimant testified that he saw "black ice" on the walkway/sidewalk in front of the entrance to his dorm and that the entire walkway/sidewalk was icy. Claimant provided no other description of the condition, such as the condition's width, depth or appearance. It is also difficult to tell from claimant's testimony and the drawing that he provided to the Court where the alleged icy condition was specifically located. Claimant offered no other evidence, such as a photograph or the testimony of other witnesses, describing the alleged "black ice" condition.
Moreover, claimant's testimony with respect to the presence of an icy condition on the walkway/sidewalk is not corroborated by any other testimony or evidence. There is no evidence that other people slipped or fell that morning because of an icy condition. The fact that the logbook proffered by defendant describes the weather at Mohawk during the 6:00 A.M. to 2:00 P.M. shift that day as "rain-icing" is insufficient to establish that an icy condition existed at the time when and the place where claimant fell. The absence of any other testimony to support claimant's assertions as to the condition of the walkway - despite his testimony that two other inmates witnessed his fall - diminishes the impact of his testimony. In addition, claimant's testimony as to the icy condition of the walkway was contradicted by that of Officer Kelsey, who the Court found to be credible, that he had used the walkway that morning and did not notice any icy or slippery conditions. Without more, the Court cannot find that a dangerous condition existed on defendant's property (see Matott v State of New York, UID No. 2013-040-060 [Ct Cl, McCarthy, J., Aug. 23, 2013]).
The Court also concludes that, even assuming that a dangerous condition existed, claimant has failed to establish that defendant either created the condition or had actual or constructive notice of it. The Court received no evidence indicating that defendant created the alleged dangerous condition. With respect to actual notice, claimant testified that he informed Officer Kelsey about the slippery or icy condition on the morning of his accident before it happened. However, this testimony is self-serving, and claimant offered no evidence corroborating his assertions. Officer Kelsey testified credibly that he did not recall that claimant informed him of a slippery or icy condition prior to the accident and that he was not otherwise made aware of it. Moreover, neither the inmate injury report nor the grievance filed by claimant with respect to the incident represent that claimant had informed a correction officer about the icy condition before he fell (see Defendant's Exhibits B and C). The Court finds claimant's testimony, standing alone, insufficient to establish that defendant had actual notice of the alleged dangerous condition.
With respect to constructive notice, the Court received no evidence establishing that the alleged icy condition had been present on the walkway for a "sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d at 837). On this point, claimant testified only that the alleged icy or slippery condition was present when he left the dorm to go to the infirmary and was still there when he returned from the infirmary. However, he did not testify how long the trip to the infirmary took him. Moreover, no evidence was presented at trial that the icy condition had any features - such as discoloration - that would permit an inference that the ice had been there for a period of time sufficient to allow defendant to discover and cure it (see Nichols v State of New York, UID No. 2014-038-103 [Ct Cl, DeBow, J., Mar. 28, 2014]). As there is no proof of how long the alleged condition existed, the Court cannot find that defendant had constructive notice of it (see Bell v State of New York, UID No. 2014-029-009 [Ct Cl, Mignano, J., Feb. 11, 2014]).
Therefore, based on the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, his claim against defendant. Accordingly, the claim is hereby dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly.
January 14, 2015
Albany, New York
James H. Ferreira
Judge of the Court of Claims