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Diaz ex rel. Clark v. State

Other Lower Courts

October 25, 2004

Joulé Diaz, an Infant by Her Mother and Natural Guardian, Jacqueline Clark and Jacqueline Clark, Individually Claimant(s)
v.
The State of New York, Defendant(s)

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Claimant's attorney: MARK D. LIPTON, ESQ.

Defendant's attorney: HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL BY: VINCENT CASCIO, ASSISTANT ATTORNEY GENERAL Third-party defendant's attorney:

OPINION

Thomas H. Scuccimarra, J.

Joulé Diaz, the infant Claimant [1] herein, alleges in Claim Number 107637 that Defendant's agent - the New York State Office of Parks, Recreation and Historic Preservation - negligently maintained a sidewalk adjacent to the Old Croton Aqueduct State Park by failing to remove snow and ice, causing Joulé to fall and sustain serious injury. Trial on the issue of liability alone was held on July 14, 2004.

The facts in this case were largely uncontroverted. Joulé Diaz, twelve years old at the time, and a Seventh Grade student at Mark Twain Middle School, got off her school bus at Warburton Avenue at approximately 3:00 p.m. on February 24, 2003 and proceeded to walk to her home along Glenwood Avenue in the City of Yonkers. It was a cold and clear day. A portion of the sidewalk along her path up the hill on Glenwood Avenue was adjacent to the Croton Aqueduct: property owned by the State of New York. The Claimant recalled that it had snowed perhaps one (1) week earlier. A lack of snowfall for at least four (4) days prior to February 24, 2003 is confirmed in certified weather records. [Exhibit A]. Claimant was carrying a notebook in her right hand, wearing a down jacket and Timberland boots and wearing a book bag on her back.

The sidewalk was entirely clear of snow and ice, until that portion of it that was adjacent to the Old Croton Aqueduct Trail property. As shown in Exhibits 2 and 3, that area was covered in bumpy snow and ice, of an uncertain depth, and an icy path had been formed by walkers across it. Claimant was able to identify the location of her accident on photographs taken a day after the accident, and marked the location with a circle. [ See Exhibits 2 and 3]. Claimant marked the same photographs with an "x" to identify that portion she described as the Croton Aqueduct. [Id]. When Claimant got to that snowy part of the sidewalk, she did not consider taking an alternate route home. Although she did look across to the other side of Glenwood Avenue, she saw that the Aqueduct area of the sidewalk on that side of the street was also snowy and icy. As shown in the bottom left photograph of Exhibit 3, and marked by Claimant with a "y", the sidewalk in front of the Aqueduct area on the opposite side of the street was also covered with snow. Exhibit 4 - a series of three (3) photographs - was also identified by Claimant as depicting the snow and ice on the sidewalk on the opposite side of the street. Claimant described the traffic as "very busy" [2], with "cars coming downhill and cars going uphill." Cars were parked on the street as well. To Claimant's knowledge, there was no other way of getting up the hill other than on the sidewalk.

As she crossed the snowy and icy area approximately "two to three steps", she slipped, fell, and was injured. Her left foot made the first contact with ice, and slipped, causing her to fall to the ground. Once she was on the ground, Claimant's classmate helped her up. When Claimant stood up with her friend's assistance, she realized "it was more than what I thought it was, and I couldn't really walk on my left foot." Claimant's friend continued to assist her as she "limped all the way up the hill."

When she arrived home, she called her mother, Jacqueline Singletary, [3] who returned from work and took Claimant to the hospital for treatment.

On cross-examination, Joulé recalled that there had been a school vacation period prior to the day of her fall, so she had not taken the bus and thus not walked on that sidewalk area. Additionally, her mother normally drove her to the bus stop in the morning, as she did on that day. She had therefore not walked on the sidewalk for approximately one (1) week prior to her fall. No snow was melting. She first noticed that the sidewalk area was snow-covered when she was about "6 inches" from the snow covered sidewalk. She indicated that she did not adjust her pace, but had been walking carefully in any event.

Claimant testified that she had never seen anyone shoveling or clearing that portion of the sidewalk and, indeed, that area was always snow covered when it snowed. She had never complained to her mother, nor to anybody else about snow on the sidewalk.

Jacqueline Singletary, Claimant's mother, also testified briefly. She indicated that after her daughter's fall she went to the location of the accident to examine it, and accompanied her attorney the next day to take photographs of the scene. She did not recall her daughter ever complaining about conditions on the sidewalk, nor had she ever observed anyone removing snow from that portion of the sidewalk during the years she had lived on Glenwood Avenue. She herself had never complained about the condition of the sidewalk, nor was she aware of any ...


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