The claimant filed this claim on August 18, 2022 seeking damages for injuries sustained on February 24, 2022 when she slipped and fell on a walkway at State University of New York (SUNY) Canton. Claimant alleges that a delivery truck blocked the walkway leading to the entry to Cook Hall, therefore she walked on the passenger side of the delivery truck, then slipped and fell on snow and ice between the truck and the curb/flower bed area, breaking her left ankle.

The liability trial was conducted on March 13, 2024. Claimant testified on her own behalf, and called no other witnesses. Defendant called two witnesses, Jason Haggett and Officer David Cummings. Claimant submitted eleven exhibits, of which the marked Exhibits 1, 2, 3, 4, 5, 7, 8, 9, 10 and 11 were received into evidence by stipulation of the parties. During the course of the trial, claimant offered marked Exhibits 3A and 5A, which were received into evidence without objection. Claimant's Exhibit 6 was marked for identification purposes only and not received into evidence. Defendant submitted four exhibits, marked as Exhibits A, B, C and D, all of which were received into evidence by stipulation of the parties. At the conclusion of trial and in lieu of closing statements, the parties submitted post-trial memoranda.

After listening to and observing the demeanor of the witnesses as they testified, and upon consideration of their testimony, as well as all of the other evidence received at trial as set forth more particularly below, the applicable law, and the parties' post-trial submissions, the Court makes the following findings:

At the time of this incident the claimant was a full time student at SUNY Canton and was familiar with the campus (T-15 ^[FN1] ). She testified that there is a pedestrian plaza on the campus that is located in the center of the campus and provides access to most of the academic buildings (id.). When school is in session, the pedestrian plaza is one of the busier parts of the campus (T-16). Claimant testified that the accident occurred on February 24, 2022 at approximately 7:50 a.m. when she was heading to class located in Wicks Hall (id.). It was a cold morning, close to freezing if not below, but there was no sleet or snow or any other significant weather that morning (T-18-19). As she drove to campus that morning she did not observe any precipitation (id.).

Claimant's plan that morning was to walk from the parking lot on the walking path that crosses the pedestrian plaza, enter Cook Hall and then proceed to Wicks Hall (T-19-20; see Exhibit 1). Claimant was shown Exhibit 5A and marked an X on the exhibit showing where she entered Cook Hall that morning (T-21). The claimant also identified on Exhibit 4 the parking lot where she parked the morning of the accident, as well as every time she was on campus for all three of her degrees (T-24). The claimant testified she was not in a hurry that morning, her class began at 8:00 a.m., and but for the accident she would have been on time (T-23). She also testified that she was not carrying anything in her hands, her cell phone was in her pocket and she was not using her cell phone at the time of the accident (T-23). Claimant testified that morning she had a backpack with books and was wearing a pair of sneakers which were, for the most part, the same sneakers she wore every time she went to class (T-23-24). The semester had started the last week of January and this class was three days per week (T-24-25). She had walked this particular area dozens of times for this particular class prior to her fall (id.).

Claimant testified the accident happened right outside the entrance to Cook Hall on the pedestrian plaza (T-25). She testified that she fell on the pedestrian plaza, and when the claimant was shown Exhibit 3A during her direct examination she circled the area where she fell at the entrance to Cook Hall (T-25, 27-28). As she approached the southern end of Cook Hall to go into the building, she observed a white box truck backed into the entrance of Cook Hall (T-29). Claimant testified she was not able to go straight into the entrance of Cook Hall without going around the truck (T-30). She decided to go around the passenger side of the vehicle because she felt at that time it was the safest and most direct route to enter the building (T-30). Additionally, she testified that she knew from previous trips into the building through that entrance there were often patches of ice, a trash can and a snow pile obstructing the entrance from the driver's side (id.). Claimant was shown Exhibit 7, page 7, during her direct examination and identified a photograph of the southern entrance of Cook Hall (T-30). While viewing the photograph, claimant testified that she observed patches of what appears to be ice as well as a trash can and a pile of snow to the right of the entryway (T-31; Exhibit 7, p. 7). She testified that this is what she [*2]was referring to earlier when she said on previous occasions she recalled seeing patches of ice, snow and a trash can on the driver's side of the truck (T-31). Claimant was asked how large the box truck was and described it as a standard box truck that was larger than the police car in the photograph (id.; Exhibit 7, p. 7). As she walked by the box truck she was looking down, and saw what she thought at the time to be a patch of snow (T-31). She did not see any glare ice or any signs that there was salt or sand spread in that area (id.). She did not observe any signs that the area had been plowed or shoveled (T-32). The claimant testified as she walked by the passenger side of the truck, she slipped on what she thought was a patch of snow, but turned out to be snow covered ice and fell to the ground (id.). The claimant testified she was approximately 10 to 20 feet from the entrance to Cook Hall when she fell (id.). The claimant testified she suffered injuries from the fall and was not able to walk and was not able to bear weight on her left ankle (id.). The claimant testified that she broke her left ankle (T-33). When asked on direct examination what caused her to fall, the claimant testified that she had stepped on what she thought was snow, but was a patch of snow covered ice (T-33).

The claimant was shown the three photographs included in Exhibit 7 during her direct examination. She testified that the three photographs fairly and accurately showed the condition of the pedestrian plaza where she fell and that the red squares on each photograph indicate the spot where she fell (T-33-34; Exhibit 7, p. 8-10). She testified she did not see any salt or sand in that area, or any cones or warning signs directing pedestrian traffic as she approached the box truck (T-33-35). She did not see any ice at all in the moments before she fell (T-35). She testified that the area where she fell was not properly maintained because there was adequate time to clear that spot on the pedestrian plaza prior to classes that morning (id.). She felt that area where she fell was hazardous and unfit for pedestrian use (id.). According to the claimant, if the box truck was not there, she would not have walked in this area that is depicted in the photographs (T-35; Exhibit 7, p. 8-10).

On cross-examination the claimant again testified that her class was at 8:00 a.m. and the accident occurred at 7:50 a.m. (T-36). She disputed that she was running late to class (id.). Claimant testified she would have been six or seven minutes early to class had this accident not happened (id.). Prior to the accident she assumed it was just a patch of snow, not a patch of ice (T-36-37). Claimant disputed defense counsel's assertion that there was vast space on the side of the box truck to go around it and enter Cook Hall (T-37). The claimant testified that the entrance to the building was obstructed by the box truck (T-38). Although there was another entrance towards the end of the building much farther down, the claimant testified it was very cold that morning so she felt that the path she chose was the safest and most direct route to get into the building (id.). She perceived going in between the box truck and the edge of the pedestrian plaza to be the safest route (id.).

Claimant had been walking by herself, but after she fell two students in her program, Emma Bortnick and Gabrielle Parrotte, helped her get into the building and placed her on the floor inside the entrance (T-38-39; Exhibit 7, p. 3-4). She testified that SUNY Canton police were called and Officer Cummings arrived (T-39). Claimant was unaware that Officer Cummings had a body cam video with him at the time, and she had not reviewed the video before trial (T-39-40, 42; Exhibit A). Claimant reviewed a brief portion of the body cam video during the trial and recognized Kim Davies, Director of the Nursing Program and Onalie [*3]Beckstead, who had been in Southworth Library which was across the pedestrian plaza and had seen claimant fall (T-43; Exhibit A). Claimant disputed the portion of Onalie Beckstead's voluntary statement that said Ms. Beckstead heard claimant say she was in a hurry (T-44; Exhibit 7, p. 5). Defense counsel showed claimant another portion of the body cam video, at 01:47 through 02:28, where the box truck ^[FN2] is seen pulling away (T-45; Exhibit A). Claimant confirmed that the video accurately reflected the pedestrian plaza ^[FN3] , briefly showed the box truck, and at that point in time she had felt that the route she chose was the safest and most direct route into Cook Hall (T-45-46; Exhibit A).

On re-direct examination, claimant confirmed that at the time of the fall, she was between the passenger side of the box truck and the edge of the pedestrian plaza, but on the pedestrian plaza itself (T-46). On re-cross, claimant again confirmed she was walking between the box truck and the flower bed, but on the pedestrian plaza (T-49). The flower bed area was raised, and she was not walking on the raised part (id.).

Claimant called no further witnesses. At that time defendant made a motion for a directed verdict, which was opposed by claimant (T-50-51). The Court reserved on the motion (id.).

Defendant called Jason Haggett, Supervisor of Grounds at SUNY Canton, as its first witness (T-53). Mr. Haggett has worked at SUNY Canton full-time since December 2005, and in his current position since July 2017 (T-54). His duties, with the assistance of six employees underneath him, are essentially the maintenance of the grounds on campus (id.). Their main duties being mowing grass in summer and taking care of snow and ice in winter (id.). He confirmed that Exhibit D was SUNY Canton's snow removal policy, available on the website, and it would have been current in 2022 (T-54-55). Mr. Haggett testified to the general custom and practice at SUNY Canton for cleaning up after a storm. If there was no storm then his staff would go around campus in the morning starting at 4 a.m. and make sure there weren't areas that had covered over during the night or areas that they had missed. If there were pools of ice or water that had frozen to ice overnight they would treat those areas (T-56). Mr. Haggett testified that he gets to campus around 6:30 a.m. and drives around campus to see that his staff hasn't missed anything (id.). He explained that for pavement such as roads, they treat with a sand and salt mixture, but on cement areas such as paver blocks they treat with ice melt (id.). He indicated that he and his staff prioritize student and employee parking areas and then the pedestrian plaza because it will get a lot of traffic (T-57).

Mr. Haggett testified that on the morning at issue he got a phone call from the physical plant notifying him of the accident (T-58). In response, he asked one of his employees to take a look at it and take a picture of the area because "I want them to see that we had treated that area" (id.). Mr. Haggett testified that he was surprised someone had fallen because there hadn't really [*4]been a snow event that day and when he was up in the pedestrian plaza area earlier it was for all intents and purposes bare (id.). He was shown Exhibit 3, which he identified as the photograph that his employee had taken of the plaza area, and he testified that it accurately reflected the conditions on the date of the accident (T-59). He stated that after looking at Exhibit 3 he was still surprised someone fell in the plaza because there was "a large area that doesn't have snow or ice on it" (id.). Mr. Haggett testified that the snow removal policy was to "provide a reasonable egress", they are not required to remove every piece of snow from campus and that there are lots of areas that aren't plowed in the winter (T-60). Mr. Haggett again reviewed Exhibit 3 and explained that to the right there is a concrete curb that holds mulch and a flower bed area (T-61). He testified that it is not their practice to get tight to the curbs when removing snow because they don't want to damage the curbs (id.). He agreed that his opinion was that the area was cleared to his standards and in his time at SUNY Canton he had not heard of another person falling in that area (T-61-62).

On cross-examination, Mr. Haggett confirmed that the pedestrian plaza is one of the busier spots on campus and one of the priorities of his staff when performing snow removal duties (T-62). He agreed this area is generally for pedestrian use only, and not designed with entrances for receiving deliveries (T-62-63). Mr. Haggett also testified that he was aware that there were other areas of the campus designed for loading and unloading deliveries, but he was unaware what SUNY Canton's policies might be for deliveries on campus (T-63, 66). He also agreed that it was foreseeable that students would use the entire pedestrian plaza (T-66-67). Mr. Haggett testified that the morning of the accident his staff did not do any snow removal because it hadn't snowed, and they didn't salt or sand the snow and ice in the pedestrian plaza (T-69, 73).

Mr. Haggett confirmed that he observed a strip of ice on the pedestrian plaza in Exhibit 3 (T-71). He stated that they don't plow the pavement up to the curb, and that is visible in Exhibit 3 where the edge of the snow and ice on the pavement meets the dry pavement (T-69-70). He also confirmed that at the edge of the pedestrian plaza near the entrance to Cook Hall there is a curb and a flower bed that was raised and pitched toward the pedestrian plaza (T-68, 71-72). His staff was aware that snow and ice would melt and run off the flower bed, over the curb, and onto the pedestrian plaza where it would refreeze (id.). He saw this happen on a recurrent basis and the strip of ice visible in Exhibit 3 was the result of the runoff refreezing, as well as the margin between where his team plowed and the curb (T-72). The SUNY Canton snow removal policy was reviewed indicating that ice choppers and ice melt would be employed on remaining ice, and return trips would be made to remove melted ice and slush (Exhibit D; T-73-74). Mr. Haggett offered that the use of ice choppers and ice melt was to be used "[w]ithin reason", but then he conceded that the policy did not say "within reason" (Exhibit D; T-73). Mr. Haggett confirmed that procedures were not followed along the perimeter of the pedestrian plaza, and he saw no indication that ice melt had been applied in the relevant area (Exhibit D; Exhibit 3; T-73-74).

On redirect examination, Mr. Haggett testified that it wasn't realistic that pedestrians would use every single part of the walkway, including the mulch and flower beds, but that the cleared areas in the center of the walkway were mostly used (T-75-76). He confirmed that it was his opinion that the strip of snow in Exhibit 3 did not need to be removed (T-76). On re-cross, he confirmed that he never saw where the box truck was or where claimant fell the morning of the accident or if there was reasonable egress from Cook Hall at that time (id.).

As its next witness, the defendant called Officer David Cummings, who has been an employee at SUNY Canton since 2013 as a University Police Officer One (T-78; Exhibit 8, p. 11). Officer Cummings was on duty the morning of claimant's accident and after being notified of the accident on the pedestrian plaza, he reported to the area at the south entrance to Cook Hall (T-81-83). He saw the box truck outside the entrance to Cook Hall and found claimant inside the entrance sitting on the floor (T-84). He had driven over to Cook Hall in his patrol car, with his usual equipment, including his body cam which records both audio and video (T-82-83).

Officer Cummings reviewed some of the body cam video and confirmed that it accurately reflected the events that day (T-85; Exhibit A). After arriving at Cook Hall, Officer Cummings gathered some information then stepped outside to call the ambulance (T-87-88; Exhibit A). He had not had any trouble entering Cook Hall and he found the pedestrian plaza to be dry, without snow, as reflected in the body cam video (T-87-89; Exhibit A, 01:47-02:28). He also noted that the box truck was visible in the body cam video, pulling away from Cook Hall just before he exited that building (T-88). Officer Cook identified other individuals in the video, namely the claimant and three SUNY Canton employees: Kim Davies the Nursing Director, Onalie Beckstead a cleaner, and Eric Sanford a carpenter (T-84, 89). In the course of his investigation, Officer Cummings later identified Shawn Wright as the driver of the box truck for Chaney Dining Center ^[FN4] . It was common practice to see the Chaney box truck there for deliveries (T-89).

Officer Cummings explained that he started his investigation of the accident immediately, as depicted on the body cam video, then after claimant was taken away by the ambulance, he got the department's digital camera and returned to the Cook Hall southern entrance area a few minutes later to take photographs of the area (T-92-93). Officer Cummings identified Exhibit 7 as his complete Incident Report, and recognized the photographs at pages 7 through 10 as the photographs he took that day (T-93-94, 97). He had placed the red boxes on the photographs as a mark of the general area where claimant fell, based upon what Ms. Beckstead had told him, and he had placed his patrol vehicle in the area outside the Cook Hall entrance to try to replicate where the box truck had been (T-93-94; Exhibit 7, p. 2). Officer Cummings clarified that Exhibit 2 was a draft of what later became the final report marked as Exhibit 7 (T-95-96).

Attached to the Incident Report are Voluntary Statements by Emma Bortnick, Gabrielle Parrotte, Onalie Beckstead, and Shawn Wright (Exhibit 7, p. 3-6). Officer Cummings reviewed his practice for obtaining Voluntary Statements in the course of an investigation (T-97-99). He explained his method of investigation, and how he will ask witnesses questions and type as they answer, then he will ask them repeatedly if he had worded something wrong or if they want to delete or add anything to the statement (T-99-101). Once they have read through it and are satisfied that it is correct, he prints the Voluntary Statement for their signature (T-99, 101). He thought the Voluntary Statements he obtained were consistent with claimant's version of events (T-103). Officer Cummings did not have further contact with claimant, Ms. Beckstead, Mr. Wright or Mr. Haggett about this incident after the Voluntary Statements were obtained in April 2022 (id.).

On cross-examination Officer Cummings answered questions regarding his job duties and [*5]the investigatory process (T-105-110). He also confirmed that he had prepared the Incident Report, and gathered all the photographs and statements contained in it (T-110; Exhibit 7). Officer Cummings reviewed the body cam video in preparation for his trial testimony, but was unable to recall if he had done so in preparing the Incident Report (T-113). He did not take any handwritten notes in the course of his investigation (id.).

Next, Officer Cummings was shown Exhibit 3, the photograph of the pedestrian plaza taken by Mr. Haggett's employee the morning of the accident. He confirmed there wasn't any weather such as snow or rain that morning, and that when he began investigating he saw a patch of snow covering ice (T-116). Exhibit 3 is a photograph of the same area that he had taken photographs of which were contained in the Incident Report (Exhibit 7; T-116-117). He did not see any signs of salt or sand or ice melt applied to that patch or specific area that day, and didn't see it in the photograph although he indicated there was residual salt and sand throughout the entire area (T-117). He conceded that it was foreseeable that students would use the entire pedestrian plaza to walk on, including the parts visible in Exhibit 3 (T-118). In reviewing the photographs he took the morning of claimant's accident, and the area within the red square showing approximately where claimant fell, he conceded that there was no salt or sand applied to the ice and snow found in that area (T-119-122; Exhibit 7, p. 8-10). He agreed that the photo showed ice, covered by a dusting of snow (T-121; Exhibit 7, p. 9). He also conceded that the area in the red square was slippery and hazardous (T-123). Officer Cummings had previously observed snow and ice melt from the garden area, then runoff onto the pedestrian plaza and refreeze (id.). Officer Cummings was familiar with the school delivering food to the eateries in MacArthur Hall and the library by truck (T-124). One of the spots the truck would park to make those deliveries was outside the southern entrance to Cook Hall (id.). He was not aware of his department telling the food deliveries to deliver or not deliver from certain locations, and he could not recall ever receiving a complaint about the locations of the food delivery trucks in his eleven years working there (T-126-127). However, he also noted that he typically works midnights and afternoons, and those types of issues were more of a "day shift thing. . . during normal business hours" (T-127).

In the process of the investigation, Officer Cummings had taken the Voluntary Statements of the two students who assisted claimant into Cook Hall after she fell, as well as that of Ms. Beckstead and the driver of the box truck, Shawn Wright, and had gathered information about where the box truck was parked at the time of the accident. Officer Cummings confirmed that the statements he had typed up for their signatures reflected what they told him (T-131-132). Emma Bortnick's Voluntary Statement stated that she had seen a truck backed into the entrance to Cook Hall (T-131; Exhibit 7, p. 3). Gabrielle Parrotte's Voluntary Statement was similar. She stated she had seen "a big white truck parked right in front of the entrance of Cook Hall" (T-131; Exhibit 7, p. 4). Ms. Beckstead's statement concurred with that of the two students, she had seen the box truck "backed into the doorway of Cook Hall" (T-132; Exhibit 7, p. 5).

Officer Cummings stated that he never personally observed where the box truck was parked the day of the accident, and didn't include that information into his Incident Report, although he noted that the box truck is visible in the body cam video before it starts moving, if you move through the film frame by frame (T-132). At the time of his deposition, Officer Cummings had indicated that the box truck could have parked perpendicular to the Cook Hall [*6]entrance, but at trial his testimony was that he didn't know if that would be possible due to other buildings, a stairwell and a curb jutting out that might cause issues (T-133-135). Officer Cummings had never asked any of the witnesses about the conditions on the driver's side of the truck (T-138).

At the end of Officer Cummings' testimony the defendant renewed its motion, which claimant again opposed. Claimant then made a motion for a directed verdict, which defendant opposed (T-141-142). The Court reserved as to both motions.

A number of exhibits were admitted into evidence, many of which have already been noted in the course of witness testimony. As mentioned previously, SUNY Canton employee Onalie Beckstead was in the Southworth Library and appears to have been the only individual to see claimant fall outside Cook Hall (T-44; Exhibit A; Exhibit 7; Exhibit 11). Ms. Beckstead did not testify at trial. She does appear in the body cam video and she provided a Voluntary Statement to Officer Cummings on April 6, 2022 which is included in the Incident Report. She was also deposed on March 16, 2023 (Exhibit A; Exhibit 7, p. 5; Exhibit 11). In her employment as a cleaner at SUNY Canton, Ms. Beckstead was familiar with snow and ice removal policies as she was responsible for checking outside the building she worked in and clearing any snow or ice and putting down ice melt (Exhibit 11, p. 14, 23-24). At her deposition, she recalled spreading salt and sand the morning of the accident because it had snowed the night before, and most of the day before, leaving a couple of inches of snow (id., p. 23-25). Ms. Beckstead also recalled seeing the box truck back over to the south entrance of Cook Hall from her location at the library across the plaza (id., p. 29). She had seen deliveries made all winter at that location at the southern entrance to Cook Hall (id., p. 48). Ms. Beckstead said she saw claimant come from the ramp to French Hall, then walk in between the passenger side of the box truck and the curb, and then she fell (id., p. 33-34). Ms. Beckstead had seen the garden area at the edge of the pedestrian plaza, and she was aware that it pitched toward the pedestrian plaza (id., p. 36-37). She had seen snow and ice melt and runoff into the plaza before and then form ice, on a recurrent basis including in February 2022 (id.). She agreed that the area where claimant fell was in part snow and runoff from the garden that had formed repeatedly that winter (id., p. 37).

At her deposition, Ms. Beckstead had greater difficulty regarding the details of claimant's fall. Ms. Beckstead initially insisted that claimant had a phone in her hand and was looking at it at the time she fell (Exhibit 11, p. 55). Ms. Beckstead never mentioned claimant holding or looking at a phone immediately after the accident in the body cam video where she can be seen and heard describing what happened, or in her Voluntary Statement on April 6, 2022 (Exhibit A, 00:19-00:30, 2:26, 24:23-24:29; Exhibit 7, p. 5). It was only at the deposition on March 16, 2023 that she offered this new information, but she later stated that she didn't really remember if claimant was using a phone after all (Exhibit 11, p. 55-56, 58). Ms. Beckstead also insisted that claimant had said, only once and before Officer Cummings arrived on the scene at Cook Hall, that she was in a hurry and late for class (Exhibit 11, p. 65-66; Exhibit 7, p. 5).

It is not in dispute that the driver of the Chaney box truck the morning of claimant's incident was Shawn Wright, and he made the delivery for Roos Court through the southern entrance to Cook Hall. Mr. Wright did not testify at trial, as he was previously deceased (T-91). He had provided a statement for Officer Cummings' Incident Report. In Mr. Wright's Voluntary Statement, he indicated he had "backed the truck up about 25 feet away from the entrance [to [*7]Cook Hall]" and that he had "been parking at that entrance making deliveries for about a month" (Exhibit 7, p. 6). He also provided sworn testimony at a deposition held on May 9, 2023 (Exhibit 10). Mr. Wright had been employed for College Association for four years as a general maintenance worker, and one of his duties in February 2022 was making two rounds of deliveries from Chaney Dining Center to three other locations on campus: Roos Court, Cyber Café and Rendezvous (Exhibit 10, p. 11-12, 15-16). He estimated that the box truck he drove that day was 20-25 feet long, and there were two identical trucks that he used for the deliveries (id., p. 19-20). When Mr. Wright made deliveries to the other two locations on campus, there were places to park right by entrances to the other two locations and he had been told to park at those entrances to make the deliveries (id., p. 26). His first delivery of the day was to Cyber Café in the library, and the entrance was on the pedestrian plaza (id.). His next delivery was to Roos Court in Wicks Hall, but there was no entrance right next to it through which he could make deliveries. Roos Court is located in Wicks Hall, which is connected to Cook Hall. He had made roughly 100 deliveries to Roos Court while parking the Chaney box truck at the southern entrance to Cook Hall on the pedestrian plaza, and he had never been told not to make deliveries through that entrance (id., p. 26, 27, 42). He "figured [it] was right there. It's a lot quicker than driving halfway around campus to make the back-door delivery at Roos [Court in Wicks Hall], which involves a long hallway and an elevator ride" (id., p. 26, see also p. 41-42).

The Court also reviewed the body cam video, taken shortly after the accident (Exhibit A). In the video Officer Cummings is heard arriving at Cook Hall and initially making contact with claimant and others inside the entrance, he goes back outside to the pedestrian plaza and places a phone call requesting an ambulance (id., 02:04). During the video there are brief glimpses of the box truck parked outside the Cook Hall entrance and then pulling away across the pedestrian plaza. There are multiple views of the pedestrian plaza and the area outside the entrance to Cook Hall. The library where Ms. Beckstead was at the time of claimant's fall is visible at a distance across the plaza. While Officer Cummings places the phone call to request an ambulance, Ms. Beckstead is seen and heard pointing out the location where claimant fell to SUNY employee Eric Sanford. Next, there is a brief discussion between Officer Cummings and Mr. Sanford (id., 03:23-03:38). Mr. Sanford points out the location where claimant fell and how there is snow on the ice where claimant tried to walk around the box truck (id.). Upon returning inside the entrance to Cook Hall, claimant is heard crying, complaining of pain, and providing information to Officer Cummings and others (id., 4:15-13:55). Soon thereafter, the ambulance arrives and she is placed on a stretcher and removed to the ambulance. At several points during the video the raised flower bed and adjacent ice covered with snow is visible on the edge of the pedestrian plaza. Additionally, to the right of the Cook Hall entrance a trash can, with a pile of snow behind it and a curb with at least a foot of snow covered area in front of the trash can are visible (id., 02:15, 23:54). In the area of the pedestrian plaza adjacent to the flower bed, there appears to be ice covered with some snow that runs the entire length of the flower bed (id., 02:06-03:35; see also Exhibit 3). None of that snow appears to be fresh, and that area has numerous visible footprints (id.).

The SUNY Canton grounds department snow removal policies state the following:

SNOW REMOVAL PROCEDURES . . .

Clean-up operations after a storm shall involve completion of opening all walks and entry [*8]ways and de-icing.

• Snow shall be pushed back from sides of roadways, walks and parking lots. . .

• Ice choppers and ice melt applications will then be employed on remaining ice.

• Application of ice control products will follow plowing, based on present weather conditions, or when freezing occurs, as determined by the grounds supervisor.

• Return trips to remove melted ice and slush to [sic] the surface will complete the cleaning of all surfaces.

• Return trips for sanding and salting equipment shall be made as often as necessary on roads, as determined by the grounds supervisor.

• Scraping down of roads and walks by equipment shall continue until all surfaces are free from packed snow and ice.

It is well established that the State has a duty to maintain its premises " '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' " (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir 1972], cert denied 412 US 939 [1973]). In order to establish defendant's liability, claimant must prove by a preponderance of the credible evidence: (1) that a dangerous condition existed; (2) that the State either created the dangerous condition or had actual or constructive notice of the condition and failed to correct the problem within a reasonable period of time and (3) that the dangerous condition was a proximate cause of claimant's accident (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Goldman v Waldbaum, Inc., 297 AD2d 277 [2d Dept 2002]; Dapp v Larson, 240 AD2d 918 [3d Dept 1997]). Thus, a party responsible for clearing ice and snow "will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence" (Cuillo v Fairfield Prop. Servs., L.P., 112 AD3d 777, 778 [2d Dept 2013][citations omitted]). Where there is evidence that the defendant has " 'actual knowledge of an ongoing and recurring dangerous condition [it] can be charged with constructive notice of each specific reoccurrence of the condition' " (Anderson v Great E. Mall, L.P., 74 AD3d 1760, 1761 [4th Dept 2010], quoting Brown v Linden Plaza Hous. Co., Inc., 36 AD3d 742 [2d Dept 2007]). Constructive notice requires a showing that the particular condition "must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon, 67 NY2d at 837 [internal citations omitted]; see Spinoccia v Fairfield Bellmore Ave., LLC, 95 AD3d 993 [2d Dept 2012]). Constructive notice can be shown by circumstantial evidence "from which the negligence of the [*9]defendant and the causation of the accident by that negligence may be reasonably inferred" (Wood v Buffalo & Fort Erie Pub. Bridge Auth., 178 AD3d 1383 [4th Dept 2019][internal quotation marks omitted], quoting Lane v Texas Roadhouse Holdings, LLC, 96 AD3d 1364, 1364-1365 [4th Dept 2012]; Demaille v Trump Castle Assoc., 283 AD2d 361, 362 [1st Dept 2001]). However, there must be more shown than a "general awareness" that an icy condition may exist in order to establish "constructive notice of the specific icy condition . . . that allegedly caused the [claimant] to fall" (Cruz v Rampersad, 110 AD3d 669, 670 [2d Dept 2013]; Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]["[A] 'general awareness' that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused [claimant]'s fall . . . , liability could be predicated only on failure of defendants to remedy the danger presented . . . after actual or constructive notice of the condition" (internal citations omitted)]; Stewart v Canton-Potsdam Hosp. Found., Inc., 79 AD3d 1406 [3d Dept 2010]; Richer v State of New York, 31 AD3d 943 [3d Dept 2006]). It is claimant's burden to prove her claim by a preponderance of the credible evidence (see Tomaino v State of New York, 22 Misc 3d 1013, 1019 [Ct Cl 2008]; Monroe v State of New York, UID No. 2024-060-032 [Ct Cl, Mejias-Glover, J., June 26, 2023]; Wands v State of New York, UID No. 2024-045-501 [Ct Cl, Lopez-Summa, J., Jan. 12, 2024]), and the credibility of the witnesses at trial will be a critical factor in determining disputed issues of fact (see Caldwell v State of New York, 72 AD3d 1248, 1250 [3d Dept 2010]; Savio v State of New York, 268 AD2d 907, 908 [3d Dept 2000], lv denied 95 NY2d 758 [2000]; Shattell v State of New York, UID No. 2022-038-114 [Ct Cl, Debow, J., Aug. 17, 2022]).

Claimant argues that the portion of the pedestrian plaza where she slipped due to ice covered with snow constituted a dangerous condition. Claimant also argues that defendant created the dangerous condition, by virtue of its agent parking the box truck in such a way that it blocked the entrance to Cook Hall, as well as snow removal practices that intentionally left the area uncleared and covered with ice and snow. Claimant argues that defendant's agents had actual knowledge of the icy condition due to the recurrent condition of melting ice and snow flowing off of the raised garden flower bed area at the edge of the plaza and refreezing, and that defendant breached its duty to keep the pedestrian plaza in a safe condition by failing to follow its own policy and remove the snow and ice on the pedestrian plaza. In the alternative, claimant argues that defendant had constructive knowledge of the dangerous recurring condition of melting and refreezing of snow and ice runoff from the flower bed area that was pitched toward the pedestrian plaza.

In opposition, defendant argues that claimant has failed to demonstrate that a dangerous condition existed, or that defendant had constructive notice of the condition. Additionally, defendant argues that snow removal had been properly performed in the pedestrian plaza and that not all snow or ice was required to be removed, in that defendant as landowner is required to maintain its "property in a reasonably safe condition in view of the circumstances", and it did so (Defendant's post trial brief, p. 14-15). Defendant points to other pedestrians walking into Cook Hall by proceeding around the driver's side of the box truck, while claimant instead chose to walk in the narrow snow covered area found on the passenger's side. Therefore, according to defendant, there was an alternate safer route that claimant chose not to take.

There is a history of the Chaney truck parking in pedestrian areas, backed up to the Cook [*10]Hall entrance. Officer Cummings was familiar with this, as were Mr. Haggett, Ms. Beckstead and claimant. The Court must consider whether the use of the pedestrian plaza, obstructing the entry for the loading and unloading of goods was necessary, temporary and reasonable (see Fleischer v White Rose Food Corp., 152 AD2d 489, 491 [1st Dept 1989]). Mr. Wright, the driver of the box truck indicated in his deposition that he had parked there a hundred times making deliveries to Roos Court through the southern entrance to Cook Hall. It was easier than driving half way around campus, going down a hall and up an elevator, and no one ever told him not to do it. It also seems that this use was temporary. Mr. Wright was delivering food to three locations on campus, this was his second stop, and the truck is seen pulling away in the body cam video. There was also no testimony that anyone complained about the truck parking in that location on the pedestrian plaza, at most it appears the truck was parked in that location for twenty minutes. It appears that pedestrians were accustomed to walking around the truck when it was making deliveries. As for this particular location, the options for entering Cook Hall on either side of the box truck were going to involve navigating your way around impediments. Under these circumstances, parking the box truck on the pedestrian plaza was necessary, temporary and reasonable. Therefore, the Court finds that defendant did not create a dangerous condition.

However, even if the defendant didn't create the dangerous condition, it will be held liable if it had actual or constructive notice of the dangerous condition. There was no proof that defendant's agents had actual notice of the icy condition. Defendant will be liable to claimant only if defendant may be charged with constructive notice of the icy condition upon which claimant slipped. "To prevail on a theory of constructive notice, [claimant] must demonstrate that the icy condition was visible and apparent, and had existed for a sufficient period of time to allow defendant's personnel to discover and remedy it" (Schleifman v Prime Hospitality Corp., 246 AD2d 789, 790 [3d Dept 1998]), "within 'a reasonable time after the cessation of the storm or temperature fluctuations which created [the] dangerous condition' " (Wimbush v City of Albany, 285 AD2d 706, 706 [3d Dept 2001]). As noted above, " 'a general awareness that snow or ice might accumulate is insufficient' to constitute constructive notice" (Orr v Spring, 288 AD2d 663, 664 [3d Dept 2001]).

There was no active snow or other inclement weather the morning of claimant's fall. Claimant testified to perceiving the area where she fell to have snow, but then she realized that it was actually ice covered with snow. However, the Court does note that there was no evidence of prior falls or accidents in the area of claimant's fall, and no complaints were received about the condition of the pedestrian plaza prior to her fall, despite the pictures showing many footprints in the snow. Therefore, it does not appear that there was actual notice of the icy condition to defendant in this area.

However, the Court finds that defendant had constructive notice of this dangerous condition. The Court took note of the testimony of the staff members, Officer Cummings and Mr. Haggett, as well as the deposition testimony of Ms. Beckstead, wherein all three agreed that there was a recurrent issue in the area where claimant fell at the edge of the pedestrian plaza with run off from the raised flower bed that would melt and then refreeze. Mr. Haggett in particular was very forthcoming on this issue, testifying that some of the ice in the area where claimant fell was from runoff refreezing. Mr. Haggett had also testified that the snow and ice removal policy was to remove all the snow and ice and to treat any remaining ice and return to remove it. This was [*11]not done. There was no evidence that defendant had treated this icy area or engaged in efforts to break up the visible ice at the edge of the pedestrian plaza. Officer Cummings, who the Court found to be very credible, also identified the area where claimant fell to be that area where there was ice that was a result of melting and refreezing flower bed runoff. He had specifically identified this area in the photographs included in his Incident Report.

The Court also found the SUNY Canton employees' trial testimony consistent in that it was foreseeable that the students would walk on all of the pedestrian plaza. Indeed, review of the photographs and body cam video reveal what appear to be many footprints in the snow and ice at the edge of the pedestrian plaza adjacent to the length of the flower bed. Claimant was not the first person to walk along this icy part of the plaza.

Turning next to proximate cause, claimant "must generally show that the defendant's negligence was a substantial cause of the events which produced the injury" (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980], rearg denied 52 NY2d 784 [1980], mot dismissed 52 NY2d 829 [1980], rearg denied 52 NY2d 829 [1980]). As the Court of Appeals has recognized:

[Claimant] need not positively exclude every other possible cause of the accident. Rather, the proof must render those other causes sufficiently 'remote' or 'technical' to enable the [fact finder] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence. A [claimant] need only prove that it was 'more likely' or 'more reasonable' that the alleged injury was caused by the defendant's negligence than by some other agency.

(Gayle v City of New York, 92 NY2d 936, 937 [1998] [internal citations omitted]). Based upon claimant's credible and uncontroverted testimony and the exhibits, including the body cam video, that she slipped on the snow covered ice and broke her left ankle, a preponderance of the evidence manifestly supports a finding that claimant's fall and subsequent injuries were more likely caused by the existence of that icy condition rather than by some other cause.

Although defendant's negligence proximately caused claimant's fall, the preponderance of the credible evidence also establishes that claimant's actions were another proximate cause of the accident and that claimant was comparatively at fault. The evidence establishes that there was an alternate route around the driver's side of the box truck to enter Cook Hall. Claimant testified that at the time she believed proceeding as she did, on the passenger's side, was the safest and most direct route. Claimant also testified that in her prior experience there were other impediments to her entry into the building on the other side of the box truck. Indeed, the existence of these other impediments is borne out by review of the photographs of the pedestrian plaza and the body cam video which show that to the right side of the entry there is a trash can and snow both in front of and behind the trash can. However, the body cam video also provides evidence that a few pedestrians entered Cook Hall safely through that alternate route shortly after the claimant's accident while the box truck was still parked at the entrance, including Ms. Beckstead and Officer Cummings. Accordingly, the Court concludes that claimant was negligent in failing to exercise due care as she walked to her class on the morning of February 24, 2022.

The Court is unable to give much weight, if any, to the out-of-Court statements of Ms. Beckstead regarding the details of claimant's fall. At her deposition, Ms. Beckstead stated that claimant had been looking at a cell phone when she fell and stated she would be late for class, [*12]implying that claimant may have been hurrying. However, Ms. Beckstead's statements on the day of the accident in the body cam video, a couple of months later in her Voluntary Statement, and at her deposition approximately a year later were inconsistent. At the deposition when confronted with these inconsistencies Ms. Beckstead conceded that she didn't remember whether claimant was using a phone at the time of the accident (Exhibit 11, p. 57-58). The Court does not doubt that Ms. Beckstead saw claimant fall from her vantage point at the library across the pedestrian plaza and then came across the plaza to try to assist. However, based upon a review of the campus map, photos in evidence and the body cam video, it appears there is a good distance between the library and Cook Hall and as Ms. Beckstead stated, claimant would have been walking away from the library as she approached Cook Hall (id.). These factors would have prevented or at least interfered with Ms. Beckstead observing every detail of claimant's fall.

The Court finds that defendant was negligent and is liable to claimant and that claimant's comparative negligence was also a proximate cause of her accident and injury. Liability is apportioned ten percent (10%) to claimant and ninety percent (90%) to defendant. The Chief Clerk is directed to enter an interlocutory judgment to that effect.

Any motions not previously ruled upon are hereby DENIED. The claim will be scheduled for trial on the issue of damages as soon as practicable.

The parties are encouraged to consider alternative dispute resolution for the ascertainment of damages.