Richer v State of New York

[*1] Richer v State of New York 2005 NY Slip Op 52333(U) [18 Misc 3d 1111(A)] Decided on March 18, 2005 Ct Cl Collins, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 18, 2005
Ct Cl

Patricia Ann Richer, Claimant,

against

The State of New York, Defendant.



108069



APPEARANCES:For Claimant:

Law Office of John A. Piasecki

By: John A. Piasecki, Esquire

For Defendant:

Honorable Eliot Spitzer, Attorney General

By: Belinda A. Wagner, Esquire

Assistant Attorney General

Francis T. Collins, J.

The trial of this claim involving a slip and fall at a facility owned and operated by the State of New York was bifurcated by Order of the Court dated October 15, 2004. As a result, the decision herein addresses solely the issue of liability.

Claimant Patricia Richer was the first witness called. Ms. Richer testified that in January, 2002 she resided in Tupper Lake, New York having returned to that area in September, 2000. She had resided in Tupper Lake previously for approximately three years from 1986 to 1989.

Shortly after her return to Tupper Lake in September, 2000 the claimant became employed as an alcohol and substance abuse counselor for St. Joseph's Rehabilitation Center. Although St. Joseph's is based in Saranac Lake, New York, the claimant was assigned to an outpatient clinic office on the grounds of Sunmount Developmental Disability Services Office in Tupper Lake, New York (Sunmount); an entity owned and operated by the State of New York.

The claimant explained that her duties included conducting group therapy sessions in three different locations within the Sunmount facility, two such sessions in an area known as the Regional Behavioral Intensive Treatment Unit (RBITU) and another within the CIT or Center for Intensive Treatment. She identified Exhibits H and K as diagrams reflecting the physical layout of the Sunmount Facility.

Claimant returned to work at Sunmount on January 7, 2002 following a leave of absence [*2]which began on September 28, 2001. On January 8, 2002 the claimant arrived for work at approximately 8:00 a.m. entering the facility grounds and parking her Toyota pickup truck in a parking area located behind Building Three. According to the claimant she observed a light dusting of snow on her pickup truck when she left home that morning as well as "a couple of inches" on the vehicle the morning of January 7, 2002. Claimant exited her vehicle and proceeded to walk on and alongside a path which had been created by previous individuals walking up the unplowed and snow covered driveway behind Building Three in order to enter the rear of the building. She testified that the ramp in front of the rear entry to Building Three had been salted. Claimant walked up the ramp, entered Building Three and reached her office in Building Six without incident.

Ms. Richer next identified various photographs. She identified Exhibits A and B as photographs depicting the rear of Building Three as well as the driveway and surrounding grounds. Exhibits C and D depict the area of the driveway where claimant ultimately fell and was injured. Both photographs were marked at claimant's examination before trial with an "X" to represent the location where she parked her vehicle behind Building Three on the morning of January 8, 2002. Exhibit F also bears an "X" marking the place where claimant's vehicle was parked. Exhibit E is a photograph showing the driveway and grounds behind Building Three as well as the rear entry thereto. Claimant testified that on the day of her fall she was wearing Doc Martin boots which had been purchased one year earlier. The boots were received as Exhibit 2. Ms. Richer testified that she parked behind Building Three because there were no other spaces readily available and that she usually parks in an area near Buildings Five and Six.

After approximately five hours during which she conducted a group session and completed paperwork, the claimant exited Building Three between 1:00 and1:10 p.m. intending to walk to her vehicle and then drive to her next scheduled group session in Building One. Claimant explained that following the group session in Building One she intended to drive her vehicle to her final group session of the day which would be held at the CIT. As she proceeded down the ramp depicted in Exhibit G she noticed that the driveway had been plowed. Claimant testified that after exiting the ramp and walking approximately two steps she observed that the surface of the driveway was smooth and "had a sheen to it" likening its appearance that afternoon to the glass top of a coffee table. The claimant testified that she was at this point concerned and therefore began to take baby steps. She had walked in this fashion approximately ten feet from the end of the ramp when her left leg bent and came under her body. The claimant was unable to balance herself and fell. After her fall the claimant tried to get up but was unable to gain sufficient traction. She testified that her hands slipped on the icy surface of the driveway and that she was unable to bear weight on her leg. Claimant was ultimately assisted by a passer-by who helped her to the side of the driveway where she walked on snow-covered ground to her pickup truck. Claimant did not attend her next scheduled group session.

Exhibit J was received in evidence. The photograph depicts the rear of Building Three and the ramp in the upper portion of the driveway behind Building Three. The claimant testified that certain markings on the photograph depict both her intended route of travel down the driveway as well as the site of her fall.

On cross-examination the claimant testified that she graduated from Tupper Lake High School in 1989. She returned to Tupper Lake in September, 2000 and began working for St. Joseph's Rehabilitation Center shortly thereafter. From her past experience residing in Tupper Lake she understood that Tupper Lake could experience severe winter weather. Claimant worked at [*3]Sunmount Monday through Friday each week from 8:00 a.m. to 4:00 p.m. She testified that she usually arrived between 7:30 and 7:45 a.m. in order to secure a parking spot along Franklin Avenue in front of Buildings Two, Five or Six. The claimant parked behind Building Three on the morning of January 8, 2002 because she was unable to secure a parking spot closer to her office in Building Six. According to the witness there were "a couple of inches" of fresh snow on the ground. Claimant experienced no problems that morning in walking from the location where she had parked her vehicle to the rear entrance to Building Three, stepping alternately in fresh snow and along a path created by previous individuals.

At approximately 1:00 or 1:10 p.m. the claimant exited the rear of Building Three intending to drive her vehicle to Building One in order to meet a friend for lunch and attend her second group session of the day which was scheduled to begin at 2:00 p.m. Although indoor hallways connect most buildings in the lower Sunmount campus claimant decided to drive her vehicle to Building One so that it would be available to her following her 2:00 p.m. group session which, in turn, was followed by a group session at the CIT beginning at 3:00 p.m. Claimant testified that because there were only ten minutes between group sessions and entry to the CIT is heavily monitored, she wanted her vehicle available to her near Building One so that she could travel to the CIT and arrive at her 3:00 p.m. group session on time. Ms. Richer testified that she had no problems negotiating the ramp leading from the rear entrance to Building Three and that she noticed the driveway had been partially plowed as she descended the ramp. She testified as she had on direct that upon exiting the ramp she began taking baby steps which she described as short, cautious steps along the driveway surface. She had walked in this fashion approximately ten feet before falling. She testified that she had a previous knee injury which had required surgery and rehabilitation and she was therefore walking carefully to avoid injury. Although claimant testified at trial that there was no path leading from Building Three as she exited the ramp she testified at her EBT taken in April, 2004 that she fell as she was walking toward what appeared to be "the most trodden path". Claimant then testified at trial that there may have been a "trodden path behind Building Three" as she exited the building at approximately 1:00 or 1:10 p.m.

On redirect examination claimant reiterated that she observed a light dusting of snow on her vehicle the morning of January 8, 2002 and had observed a "couple inches" on the vehicle the morning of January 7, 2002.Referring to Exhibit G, a photograph showing the rear entrance and entry ramp to Building Three, the claimant testified that the top portion of the ramp was clear of snow and ice while some snow and slush had accumulated at the bottom. Claimant exited the ramp and first noticed that the driveway was slippery when she reached the middle portion of the driveway. The claimant testified that at that point she could have walked back to the ramp but felt that if she could cross the full width of the driveway she could reach snow covered ground and walk safely to her pickup truck. As she continued to cross the driveway claimant slipped and fell.

On recross examination the claimant testified that it was snowing when she exited Building Three at 1:00 - 1:10 p.m. She described the snow as large crystalized flakes.

The claimant rested at the conclusion of Ms. Richer's testimony and the defendant called Guy Hurteau.

Mr. Hurteau testified that he has been employed at Sunmount DDSO for twenty-six years and has served as the facility's plant superintendent since November, 1999. As plant superintendent his responsibilities include oversight of the maintenance department, boiler house, grounds and [*4]transportation services at the facility. He described Sunmount as a "secure facility" in January, 2002 relating that both the CIT and RBITU No.1 and #2 were surrounded by security fences.

The witness testified that a central interior corridor he marked in blue on Exhibits I and K connects the buildings which form the lower part of the Sunmount campus other than the boiler house, laundry, and grounds and maintenance departments. He also identified Exhibit J as a photograph depicting the rear entry to Building Three and the interconnecting corridor referenced in his previous testimony on the left of the photo. He described the rear entry of Building Three as used primarily by kitchen and also general staff. The witness also clarified that the interior corridor does not connect the lower campus and the CIT area.

Mr. Hurteau testified that snow removal procedures in place at Sunmount in January, 2002 provided that snow would first be removed from primary and perimeter roads. Once the primary roadways were clear secondary roads and secondary building entrances would be addressed. Snow removal duties were divided between CIT, transportation and grounds crews. The transportation department would clear parking lots as well as the roadway around the CIT and RBITU fences. The grounds crew was responsible for snow removal on sidewalks, ramps and emergency exits and a separate crew from the CIT would perform snow removal activities within that portion of the facility. The witness identified Exhibit 1 as a copy of the snow removal policies and procedures in effect at Sunmount in January, 2002.

In early 2002 the Sunmount facility had available for snow removal purposes a large wing plow, a front end loader, a stake-rack truck and two pickup trucks both of which were equipped with plows but only one of which had a rear-mounted sander. At that time the pickup truck equipped with a sander was first assigned to the CIT which the witness described as a walk-in facility with substantial emergency vehicle traffic. Once snow removal at the CIT was complete the pickup truck would be redeployed to plow and/or sand secondary areas such as the road behind Building Three which the wing plow, also equipped with a sander, could not reach. Mr. Hurteau testified that the facility's safety department and its business officer would patrol the facility's roads during winter months and report any problems or slippery conditions encountered. Complaints regarding slippery areas could also be made directly to the transportation department which, once notified, would respond and correct the condition.

On cross-examination, the witness testified that the time required to clear snow from primary and secondary areas was largely dependent on the amount of snowfall. The witness could not recall whether snow fell on either January 7 or January 8, 2002 but referenced certain facility records which reflected that crews were called in on overtime during that period. Overtime documents for individual Sunmount employees (Exhibits 4 through 7) were received in evidence without objection. The witness testified that the records contain information regarding overtime hours accrued by the respective employees during the early morning hours of January 7, 2002 but agreed that they did not reference any overtime work performed on January 8, 2002. The witness agreed that Exhibits 4 - 7 support the conclusion that it snowed on January 7, 2002 and that snow accumulated in sufficient quantity to require the callback of four employees to perform snow removal on an overtime basis.

Exhibit L was received at the beginning of redirect examination. The witness identified the Exhibit as a record of overtime hours worked by employees of the Sunmount maintenance department from January 4, 2002 to January 8, 2002 including the date on which the employees worked overtime hours and the actual hours worked. [*5]

The witness acknowledged on recross examination that it is not possible to determine from the contents of Exhibit L the actual duties performed by the persons listed therein. When questioned with regard to individual employees listed in Exhibit L, Mr. Hurteau testified that with respect to those particular employees the overtime hours worked were likely not related to snow removal activity.

The defendant next called Daniel Poirier. Mr. Poirier testified that he has been employed as a maintenance supervisor in the Sunmount transportation department since April, 1996 and that his duties include vehicle maintenance, medical transportation and snow removal. With regard to snow and ice control, the witness testified that he was responsible for overseeing snow removal on the roads, parking lots and driveways within the Sunmount facility. Pure salt or sand with a 10% salt content would be spread to control icy conditions by sanders affixed to the rear of the facility's wing plow and one of the two available pickups. Mr. Poirier testified that the access road behind Building Three where the claimant's accident occurred was too small to permit access by the wing plow and would be plowed by one of the two pickup trucks and sanded using the pickup equipped with a sander. He identified Exhibit 1 as the snow removal policies and procedures in effect at Sunmount in January, 2002. He testified that the specific guidelines applicable to snow removal by the transportation department were contained on page two of Exhibit 1 which establishes snow removal priorities and lists the rear access road to Building Three as item 3 (e) on a list from item 1 to item 3 (k). The witness testified that to his knowledge the access road behind Building Three was not used often. Mr. Poirier testified that when he receives complaints regarding icy conditions he assigns a crew to respond and remediate the condition as part of his responsibilities as a maintenance supervisor. The witness recognized Exhibit 6 as an overtime form relating that he worked overtime on January 7, 2002 plowing snow and sanding roads at Sunmount beginning at 3:30 a.m. and concluding at 8:00 a.m. which was the beginning of his regular shift.

On cross-examination the witness agreed that he was called in to perform snow clearing in the early morning hours of January 7, 2002 and that his overtime records do not reflect any overtime hours worked on January 8, 2002. Although the witness could not recall how much, if any, snow fell on either January 7 or January 8, 2002, he estimated that a minimum of four hours was required to clear snow from the entire Sunmount facility following a two- to three-inch snowfall.

The defendant rested its case at the conclusion of Mr. Poirier's cross-examination and moved to dismiss the claim for failure to establish a prima facie case. That motion was denied.

The State is subject to the same duty of care imposed upon all other landowners to maintain its property in a reasonably safe condition (Basso v Miller, 40 NY2d 233; Condon v State of New York, 193 AD2d 874). The State is not, however, an insurer of the safety of its premises (Boettcher v State of New York, 256 AD2d 882). A claimant must, therefore, establish that the State either created the dangerous condition which allegedly caused his or her injury or had actual or constructive notice of the condition and failed to exercise due care to remedy it (Robinson v Albany Hous. Auth., 301 AD2d 997). The reasonableness of the State's action is to be determined upon consideration of all the circumstances including, in the instant matter, "an awareness . . . of the problems caused by winter weather" (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681). In this regard, a landowner may be found liable for a dangerous condition created by the accumulation of ice or snow only when "an adequate period of time has passed following the cessation of a storm to allow the party to remedy the condition" (Russo v 40 Garden St. Partners, 6 AD3d 420; Ioele v Wal-Mart Stores, 290 [*6]AD2d 614). While the mere failure to remove all snow and/or ice is not actionable (Cardinale v Watervliet Hous. Auth., 302 AD2d 666; Solomon v Somerman, 18 AD2d 696), liability will be found where the landowner's snow or ice removal efforts create or exacerbate a hazardous condition (Strauss v New York City Tr. Auth., 305 AD2d 160; Rector v City of New York, 259 AD2d 319) and it is demonstrated through competent proof that the failure to properly remove accumulated ice or snow was a proximate cause of claimant's injury.

The Court's determination herein has been made significantly more or less difficult by the paucity of proof presented at trial including the failure of either party to present climatological data or expert testimony. Be that as it may, the Court will determine the matter on the record before it.

By her own testimony the claimant established that she observed "a couple of inches" of snow on her vehicle on the morning of January 7, 2002. On the morning of January 8, 2002 claimant noticed a light dusting of snow on the vehicle. Later that morning after parking her vehicle, she walked to the rear entrance of Building Three on and adjacent to a path which had been worn by previous pedestrian traffic in the unplowed roadway located behind the building. Claimant testified that she noticed it was snowing lightly and that the roadway had been plowed when she later exited the building using the same rear entrance around 1:00 p.m. She stepped off the ramp, noticed a glassy sheen on the road surface and fell while attempting to cross the roadway to an unplowed area where she hoped to find better footing. There was further proof that at least some Sunmount employees were called out at 3:15 a.m. on the morning of January 7, 2002 for the purpose of performing snow-removal work at the facility.

Due to the complete absence of expert testimony and relevant climatological data, the Court finds that the proof is inadequate to establish the defendant's negligence.

Claimant did not slip and fall on unplowed snow. In fact, she traversed the unplowed roadway behind Building Three without incident on the morning of January 8, 2002. The claimant slipped, fell and was injured on ice which existed on the roadway after the road was plowed.

There is no proof the defendant had actual notice of the icy condition. Nor is there sufficient evidence to justify a finding of constructive notice. There was no factual evidence establishing the length of time the ice was present on the roadway surface and no expert proof or climatological data was offered to show that based upon the climatic conditions existing prior to January 7, 2002 it is probable the ice was upon the surface of the Building Three access road prior to the snowfall which occurred beginning at approximately 3:15 a.m. on that date.

The proof at trial also failed to establish that the ice formed as a result of the snowfall on January 7, 2002. Again, claimant failed to submit climatological data relating when the snowfall began and/or ended, the specific amount and type of precipitation which fell or the temperatures recorded during the relevant time period. Nor was there expert testimony to describe the effect of climatological conditions upon the formation of ice or to establish that the ice formed as a result of the type and amount of precipitation which fell that morning in conjunction with prevailing conditions and temperatures. The lack of evidence connecting the icy condition of the Building Three access road to meteorological events occurring on or before January 8, 2002 precludes a finding of constructive notice on the part of the defendant (Robinson v Albany Hous. Auth., 301 AD2d 997, supra; Boyko v Limowski, 223 AD2d 962).

To establish the defendant's negligence in the absence of actual or constructive notice the claimant was required to prove that the State affirmatively created or exacerbated a dangerous [*7]condition. Such a showing could be made where it is established that by plowing the roadway at some time between 8 a.m. and 1 p.m. on January 8, 2002 the defendant exposed an underlying icy condition without timely applying sand and salt (Walters v New York City Hous. Auth., 4 Misc 3d 141(A); Ramirez v BRI Realty, 2 AD3d 369; Figueroa v Lazarus Burman Assocs., 269 AD2d 215). However, as discussed previously herein, claimant failed to provide the factual, expert or climatological proof required to establish that the ice existed at the time the road was plowed.

Claimant testified that her car was covered in a light coating of snow on the morning of January 8, 2002. She also testified that a light snow was falling when she exited Building Three at 1:00 p.m. The temperature(s) and the actual amount of precipitation which fell at Sunmount (Tupper Lake) between 8:00 a.m. and 1:00 p.m. on January 8, 2002 are wholly unaddressed in the proof. As a result, it is equally as likely on this record that the ice formed after the road was plowed by an unidentified Sunmount employee on January 8th as it is the ice resulted from the snowfall which occurred on the morning of January 7, 2002. Furthermore, there is no factual testimony establishing who actually plowed the Building Three access road or precisely when the plowing took place. All that is known is that the road was unplowed at approximately 8:00 a.m. when claimant entered Building Three and was plowed but apparently not salted or sanded when she exited the building at approximately 1:00 p.m. If the proof demonstrated the road behind Building Three was plowed at 8:15 a.m. and that an icy condition existed at that time but remained unsanded and unsalted until 1:00 p.m. the defendant could reasonably be found to be negligent, especially in light of the fact that its employees were aware the area was used by staff to enter and exit the building. A different outcome would be likely if the roadway was plowed at 12:50 or 12:55 p.m. Since these important issues are not addressed in the proof the Court is unable to determine whether the defendant negligently created or exacerbated a dangerous condition.

The claimant has failed to meet its burden of establishing the defendant's negligence by a preponderance of the evidence. The claim is dismissed. Let judgment be entered accordingly.