Valentine v. State of New York

• Decision Date: 23 March 1950
• Parties: Charles H. Valentine, Jr., Claimant,<BR>v.<BR>State of New York, Defendant. (Claim No. 29494.)
• Court: New York Court of Claims

197 Misc. 972

Charles H. Valentine, Jr., Claimant,

v.State of New York, Defendant. (Claim No. 29494.)

March 23, 1950.

Julius Applebaum for claimant.

Nathaniel L. Goldstein, Attorney-General (Arthur W. Mattson and Sidney B. Gordon> of counsel), for defendant.

LOUNSBERRY, P. J.

The claimant, then an inmate of Great Meadow State Prison, was assigned to work at the milk-house or barn connected with the prison farm, located outside the prison gate. On the morning of February 18, 1938, in accordance with the usual routine, the claimant and seven other members of his work gang were assembled to proceed to the barn. As they were about to leave the prison building, the guard cautioned them, "Be careful men, it is dangerous and slippery." It was then about 6:15 A.M., and dark. It appeared that during the night it had been raining and freezing, and was still doing so when the men started out. The walk and grounds were icy and slippery.

Claimant proceeded cautiously, in company with the guard and the others of the gang, some thirty or forty feet along the concrete walk leading toward the gate, and then slipped and fell, fracturing his left leg. He was removed to the prison hospital, where traction and later a cast were applied, and where he remained until July 15, 1938, when he was discharged from both the hospital and the prison on parole. He returned to prison November 1, 1939, for parole violation and was again paroled December 30, 1948.

The fracture healed satisfactorily, but an ulcer, and subsequently varicose veins, developed in the lower left leg, causing claimant much trouble. Although improved, they were not definitely healed at the time of the trial in October, 1949, despite many varied treatments and an operation. Claimant attributes these conditions to the fracture and the treatment thereof.

The principal question is whether the State was under a duty to take measures, such as sanding or cindering, to render the walk safe for walking. Under the circumstances, and in the light of the decided cases, we think not. Insufficient time for such measures had elapsed and they would have been of doubtful value so long as the raining and freezing continued.

A leading case on the point is Kelly v. Manhattan Ry. Co. (112 N.Y. 443). There the plaintiff slipped on an icy stairway leading to the defendant's railroad. Sleet and snow had fallen during the night until about 4:00 A.M., and the accident occurred at about 5:30 A.M. In holding the defendant free from negligence, the court said (p. 452): "* * * the failure to throw ashes or sawdust or something of that character upon the steps during the storm cannot be regarded as negligence, because the continuance of the storm would soon render the steps as slippery as before; and it seems to us that culpable negligence cannot be predicated upon the failure to clean off the steps between the time the storm ceased, which was between three and four o'clock in the morning, and the time when the accident happened. So brief a period as that, at such a time in the night, cannot, we think, be regarded as any evidence of a lack of that reasonable care which the defendant was bound to exercise."

The same ruling upon very similar facts appears in Rusk v. Manhattan Ry. Co. (46 App. Div. 100) and in Greenstein v. City of New York (273 App. Div. 869) and the subject is reviewed in Murphy v. Hudson & Manhattan R. R. Co. (180 App. Div. 585). It is significant that all of these cases involve the relationship of common carrier and passenger, where a high standard of care for the safety of the passenger, or intended passenger, is always required.

Other cases asserting the principle that there is no liability for snow and ice conditions while a storm still continues nor until a reasonable time thereafter are McAuley v. United Cigar Stores Co. (204 App. Div. 356, affd. 236 N.Y. 633) involving the entrance to a store; Green v. Green (212 App. Div. 381) concerning a social invitee, and Bressler v. Rule Realty Co. (219 App. Div. 529, affd. 248 N.Y. 619) apparently involving landlord and tenant, where the landlord was in control of the steps where the accident occurred. Numerous cases assert the same principle with respect to the liability of a municipality for snow and ice on public walks, usually with a liberal allowance of time for the removal of the snow and ice (Kortlang v. City of Mount Vernon, 129 App. Div. 535 and, also, the cases cited in 5 Warren on Negligence in the New York Courts, § 354, subd. (r), pp. 318, 319).

Further, there are cases holding that a landlord in control of yards and walks adjacent to the leased premises is under no duty toward the tenants with respect to the natural accumulation of ice unless unusually ridgy and bumpy (Dwyer v. Woollard, 205 App. Div. 546; Harkin v. Crumbie, 20 Misc. 568), and there is no liability to a church invitee where ice conditions on the church walk are no worse than generally prevailing. (Schwabl v. St. Augustine's Church, 288 N.Y. 554.)

The foregoing cases establish firmly, we believe, the principle that responsibility for ice conditions arises, at the most, only after the lapse of a reasonable time for taking protective measures and never while a storm is still in progress. It is a common-sense rule arising from the fact that snow and ice conditions...