HASSAN v. THE STATE OF NEW YORK, #2000-004-015, Claim No. 100881
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
JEROME F. HANIFIN
ALLEN S. GOLD, ESQ.
HON. ELIOT SPITZER
BY: Earl F. GialanellaAssistant Attorney General, of counsel
November 22, 2000
See also (multicaptioned
The trial of this Claim was bifurcated by Order of this Court. This Decision
addresses the issue of liability.
On May 26, 1999 at approximately 11:00 p.m. Claimant, an inmate, slipped and
fell on a wet floor at the Woodbourne Correctional Facility (WCF). The source
of the water on the floor at the scene of Claimant's slip and fall was a leaking
fire stand pipe. When he slipped, Claimant hit his head on the fire box at the
There is no issue of fact with regard to whether Claimant slipped and fell as a
result of water on the floor from the leaking fire stand pipe. The issue of
fact which the Court must address is whether the facility officials or employees
had notice of the leak and an opportunity to fix or warn of it, prior to
Claimant's slip and fall. The proof on that issue is absolutely hilarious.
But first, Claimant's description of the event. Claimant testified that he was
coming from the recreation room on his way to his cell to lock in. Asked how
the accident happened he testified that he stepped on "something" and then "just
fell, very hard, hitting my head against the pipe that they had on the left
Claimant concluded that he slipped on water. Asked how he knew it was water, he
testified that he looked and there was water on his pants "on the back and if
I'm not mistaken on the left". According to Claimant, he never noticed the water
on the floor prior to the accident.
On cross-examination, Claimant was asked if he walked by the area where he fell
"usually" when he went from his cell to the recreation room and back and he
responded, "Indeed". Asked if he previously saw water there on those journeys,
he responded, "I did not notice water". Claimant had been housed in the same
cell for some two years prior to the accident. Nonetheless, he insisted he had
not seen water at the location where he fell previously, although his cell was
approximately 30 feet from the location of his fall. It was Claimant's
recollection that, as he walked from the recreation room on his way to his cell,
he was with at least 15 other inmates. He thought one of the inmates was in
front of him. Asked if that inmate slipped he responded, "Definitely not". He
added that he was "not aware" whether anyone slipped behind him. He estimated
that there were two water spots on his clothing. Asked if the spot on his "rear
end" was four to five inches in diameter he responded, "Probably". Asked whether
the other spot on his "left leg" was one and a half to two inches in diameter he
responded, "I would say yes". After he fell, Claimant continued to his cell and
locked in. Asked if, that same evening, he told a correction officer that he
did not want any medical attention, Claimant responded, "He came...ten minutes
later. He spoke to me, but I wasn't fully conscious...". Asked if, as a
result, he did not recall talking to the correction officer, he responded that
he had "no recall". However later, when asked if he told the correction officer
he was "all right", he responded, "No".
James Bonnacci was a fellow inmate at the WCF. He served as a porter and his
duties included mopping the floor. Bonnacci was asked if he was aware of
Claimant's accident and he responded that he was. Asked if he knew where the
accident took place he responded, "Well we had a leak next to like a fire box.
We had a leak there and near there and I mopped it up there and then I went to
my cell and I found out that he fell...it must have leaked again". Asked if he
had "mopped it up" prior to Claimant's accident he responded, "No, this was
about, 20 minutes ago, 20 minutes before that". Asked if he had ever mopped up
"that area prior to that" Bonnacci responded, "A couple times, yes". Asked what
caused the leak he responded, "Well it had like a leak over the fire box...it
just kept leaking and the CO called the day before that to have it fixed and he
never came". Asked how he knew this, he testified that a correction officer
told him. Asked how long prior to Claimant's accident "that fire box had been
leaking?" Bonnacci responded, "Maybe a day". Asked the number of times that he
had mopped that area prior to Claimant's accident he responded, "Oh, I can't, a
couple of times, a few times, I really don't know. The other guys must have
mopped it up too". Asked if he had mopped "over the course of one day before
Mr. Hassan's accident or longer than that?", he responded, "I mopped it up the
first day it happened, the day I told the officer the thing was leaking and a
few times before, after that ". Asked if the leak was ever fixed, he testified,
"I think they fixed it afterwards, the day after he fell". Bonnacci did not
know the name of the correction officer that he reported the leak to, but he
recalled that a different correction officer, whom he named, told him that
someone was going to come and fix the leak.
On cross-examination, Bonnacci was asked if he and Claimant were good friends
and he responded that they talked, off and on, every day. He opined that
Claimant was "a good person".
The subject of mopping was revisited on cross-examination. Bonnacci was asked
if, approximately 20 minutes before Claimant fell, he mopped "that area" and he
responded, "Yeah, 20 minutes before. Then I went in my cell". Asked if he was
instructed by a correction officer to mop the area, he responded that he had not
During Bonnacci's cross-examination, the following then transpired.
Q: And was your testimony, was it your testimony on that same day that you
mopped, you mopped that up again?
A: What do you mean?
Q: On the same day you testified you mopped it up approximately 20 minutes
after, before he fell, right?
Q: Or you found out he fell? And what about that day? Did you mop it up that
day? Before that?
A: I mopped up after that. What do you mean, before he fell?
Q: No, before.
A: Yeah, 20 minutes before he fell.
Q: Anytime before that 20 minutes though, you never mopped it up?
Later still, the following transpired:
Q: And, was it your testimony that before, before the day that he fell, that
you had mopped it up there though? Or was it just the one time?
A: No, a couple times. The day before I mopped it up and I told the C.O., I
said, ‘You know, this thing's leaking'. So he called up someone and he
told me that they're going to fix it. And then I found out they couldn't get a
part to it right away so...
Ramesh Ramdowe was also called as a witness by the Claimant. He was
incarcerated at WCF at the time of the accident and was also a porter. Ramdowe
testified that he heard the Claimant fall, since his cell was nearby. He
testified that when he heard the Claimant fall he came out of his cell "to look
what happened. I seen the floor was wet and I looked at the pipe that it was
coming out of. Right there". Asked if, as a part of his duties as a porter, he
had ever had "occasion to mop that area", Ramdowe responded, "Many times".
Asked why, "many times", he responded, "Because for years it's been leaking".
Asked what had been leaking, he responded "The pipe". Asked if he had reported
the leak, he responded "Mainly because I think also reported to the maintenance
and I think they came and fixed it many times, but it still leaked, I'm not
sure, but...". Ramdowe testified that he had mopped the area where Claimant
fell "just the day before". Asked if he had ever been instructed by a
correction officer to mop the area he responded, "I think in the morning. I
think it was Mr. Babbas". Asked if he was speaking of the "morning" of
Claimant's accident, Ramdowe responded, "No, I'm saying, at night a different
officer. The morning one, the one that instructed me, he's the one that
recognized it first. It's really coming down and through the day I kept telling
them, if I was there, I could have kept the water up". In any event, it was
Ramdowe's recollection that he had last mopped the area the day before the
Claimant's accident and that he did it on his own "initiative". He recalled
that he had mopped that particular area "many times before, it was an ongoing
thing". Asked if the pipe had been leaking "for about six months", Ramdowe
responded, "Yeah, it's an on and off period". Asked if, when he said on and
off, he meant "every day", Ramdowe responded, "Sometimes, not every day.
Sometimes it would leak, sometimes it won't. You know?". Asked if it would
leak once a week he responded, "Well, when it starts leaking it goes on and on".
Asked if there was a foot of water or six inches of water, Ramdowe responded,
"No. It wasn't that much. It was like a leaking spill like". Ramdowe recalled
passing through the area at about 9:30 p.m. on the date of the accident. He
was asked how much water was on the floor at that time and he responded, "At
that time, there was none". According to Ramdowe, during the six month period
of time that he observed the pipe leaking he "seen men that's worked with it".
He estimated that he had seen this "a few times".
After the foregoing presentation, the Claimant rested.
Correction Officer (CO) Stenros was called as a witness for the State. Stenros
testified that he had been working in the cell block where Claimant's accident
occurred for approximately six years and that he was working on the date of
Claimant's accident. Asked when he found out about Claimant's accident, Stenros
responded, "While I made my morning rounds he...said something to me about that
he fell and hit his head". Asked if Claimant told him when he fell, Stenros
responded, "He said the previous night". Asked what he did, Stenros responded,
"In response to that, he claimed about a pipe leaking. So I looked at it and
there was a little bit of water on the pipes. So, I reported it to the fire and
safety officer". Asked the location that Claimant indicated there was water on
the floor, Stenros responded, "It's located right at the base of the stairs...in
front of the officer's desk kind of". According to Stenros he had never
instructed porters to mop the scene of Claimant's fall, prior to the date of
Claimant's accident. Asked if he had ever "made a report or request" to
maintenance to fix any leaks in that location prior to the date of Claimant's
accident, Stenros responded, "I don't recall if it was prior to that date or
after that date. There was one time that I contacted maintenance". Asked about
what, he responded, "About the fan pipe having a water leak". Although he
could not recall whether he contacted maintenance either before or after the
date of Claimant's fall, he opined that "it would have been like within a week".
Asked if he reported it other than the one time that you "just mentioned",
Stenros responded, "The time I wrote down that I called...that morning when I
reported it and there was one time I called
Asked if, other than the one time that he recalled reporting a leak to
maintenance, he saw any leaks in that area Stenros responded, "No". Then asked,
"So there were two times that you had called maintenance the day after Mr.
Hassan fell, is that right?", he responded, "I reported it when, the day after
that he had told me that he had fallen". Asked "The one time that you had
called...maintenance, which you said was a week before or after, did maintenance
respond to that location?", Stenros testified, "Yes, on the day that I called
them, when I came back on the company for the 11 o'clock count, they were just
finishing up working on the pipe". Stenros estimated that a correction
officer's desk was approximately ten feet from where Claimant
The State called CO Heath as a witness. Heath testified that he was working
the 3 to 11 shift in the cell block on the date of the Claimant's accident. He
recalled closing up the recreation room at 11:00 p.m. on that date and that the
"inmates began to walk out of the unit and lock in their cell for the count".
He was asked how he "found out about it or what happened" and he responded,
At approximately 5 minutes to 11, I went in the day room and called the count.
Everybody was leaving the day room. I have a routine where I go through, to
make sure everything is turned off in the day room, lockout, lock everybody in
and do the count. When I was doing my count I passed Mr. Tehfe's cell and he
told me that he had hit his head.
Asked if Claimant stated that he was hurt, Heath recalled that Claimant told him
that, "he hit his head and that he was all right. There was nothing serious, I
believe his words were". Asked if, prior to the date of the accident, he had
ever observed water leaking from "that pipe", Heath responded, "That's possible,
there could have been and I cannot really recall. I work several different
areas". Heath thought the area where Claimant slipped and fell "very well lit".
Asked if he recalled how many times he had previously seen water at the scene,
Heath responded, "Possibly once". He was then asked if he saw water on the
floor on the day of Claimant's accident and he responded, "I don't recall seeing
any water on that location until after I was informed of the accident". He
testified that Claimant said to him, "Officer Heath I need to talk to you" and
that Claimant then told him that he had hit his head on the fire box. Heath
recalled saying, "Ok, I'll get you some medical treatment" to which Claimant
responded, "No, I don't need any medical treatment. I will be all right".
Heath added that he did not see any blood "or anything significant".
John Bendlin is the Maintenance Supervisor at the WCF. Bendlin described a
"work order system" which was used to keep track of work to be done and work
that was done. He noted that the work order system was based on "sequential
numbers" and that the records were kept on an "annual basis". He testified that
he had searched the maintenance records and found "no records of any work
requests pertaining to the fire stand pipe" prepared prior to the date of
Claimant's accident. He was told that a correction officer testified about
work being done at the location of Claimant's fall, but that the correction
officer was uncertain when it was done. He was asked, "Was any work done at that
location after the work requests came in?" and he responded, "Yes". Asked to
explain, he testified, "Work was done on the day that we received the work order
request, which is 5/27 and I also...think it was early the next month we did
more work in that location". According to Bendlin "we had to order a special
type of gasket to make the final repairs in the second instance".
During the course of his testimony, Bendlin made reference to certain work
order requests that, he had previously testified, were kept sequentially. The
State produced a bundle of photocopies of these forms in the courtroom and
Claimant's counsel examined the bundle before cross-examination of Bendlin. He
then had the bundle marked as an exhibit and it is in evidence as Claimant's
Exhibit 3. Claimant's Exhibit 3 consists of photocopies of "MAINTENANCE WORK
REQUESTS" forms each of which provide a box for "WORK REQUEST NUMBER" a box for
"DATE REC'D" a box for "INSTRUCTIONS" and a box for "DATE STARTED/COMPLETED",
among others. In connection with his search of the records, Bendlin was asked,
"How far did you go back?" and he responded, "one year".
Exhibit 3 is interesting. The first page of the exhibit is a photocopy of a
maintenance work request form with the sequential number "1450" thereon. It has
nothing to do with this Claim, but it is notable, as are the vast majority of
the maintenance work request forms, in that the "DATE REC'D" box is blank, as is
the "DATE STARTED/COMPLETED" box. Under "INSTRUCTIONS" there is an illegible
notation followed by the date "5/21/99". That would be about five days prior to
the subject accident, yet Bendlin testified that he checked the records back for
one year, hopefully prior to the subject accident. The final form in the
exhibit is numbered 1547, the aforedescribed boxes are blank, and the form is
dated June 4, 1999. In this regard, if the year that Bendlin searched bracketed
the date of the subject accident, much is missing. More to the point, there is
a break in the sequence. Photocopies of the maintenance work request forms
numbered 1463 and 1465 are on the same photocopy sheet. The work order request
that presumably would have been numbered 1464 is not found in Exhibit 3. The
work order numbered 1463 is dated 5/22/99 and the work order numbered 1465 is
dated 5/25/99. Neither work order has anything to do with the leaking pipe
which caused Claimant's slip and fall, but these dates cause one to wonder about
work order number 1464. Work order number 1486 sets forth the date 5/27/99 in a
box entitled "UNIT HEAD'S APPROVAL - SIGNATURE/TITLE/DATE". The work
description on this form is "Fire Hose Pipe is Leaking in Fire cabinet". Form
numbered 1541 had a different work order number written thereon, but it was
inked out and 1541 was inserted. This form is dated May 27, 1999, the day after
Claimant's slip and fall. The work description found thereon is "water main is
leaking by COs Bathroom causing Hazzardous [
sic] water slick on floor".
These work request forms prompted Mr. Bendlin's return to the witness stand at
the end of the trial. He was asked, "Mr. Bendlin, this packet that's been
offered, which includes the work order numbers 1486 and 1541, which appear to be
filled out on or about the same day, could you explain why that is so and why
sometimes the numbers - or how they correspond with the dates?". Bendlin
We received two work orders for the same location on the same day. We use one
to respond to that area on the 27th. We use the second work order request as
the follow up for the work that was going to be done at a later date. So when
that work was performed for the second work request, it was handed in and then
it was allocated a number.
Neither of the forms that describe the leak, numbers 1486 and 1541, recite that
the leak was fixed.
The Court finds, based on the proof presented, that the fire hose pipe had been
leaking for a sufficient period of time prior to Claimant's slip and fall so
that it should have been repaired or warning signs and/or cones placed at the
scene. Since neither occurred, the State must respond in damages. The issue
remains whether there was any culpable conduct on the part of the Claimant.
If we are to believe Ramdowe, the pipe had been leaking for years or maybe just
for six months. The Court does not. If we believe Bonnacci then the leak had
been discovered at least a day before Claimant's accident. The Court believes
Bonnacci. That is, the Court finds that the leak was discovered at least the
day before Claimant's fall and that Bonnacci did tell a correction officer about
the leak. Thus, there was sufficient time to warn of the hazardous
In light of the foregoing, the Court finds that Claimant was not negligent and
there was no culpable conduct on his part that contributed to his fall. It is
clear that the leak was relatively minor in that it did not cause large areas of
pooling on the floor and there is no reason to believe that Claimant either
observed the wet floor or that he was told about the leak at any time prior to
In light of the foregoing, the State must respond in damages, the Court will
set this matter down for trial on the issue of damages as soon as practicable.
ENTER INTERLOCUTORY JUDGMENT.
Binghamton, New York
HON. JEROME F. HANIFIN
Judge of the Court
Unless otherwise indicated, all quotations are verbatim and are from the Court's
trial notes or from the trial electronic recording cassettes.
Since Claimant was serving time for manslaughter, this opinion may have been a
comment on the Department of Correctional Services rehabilitation efforts.
State's Exhibit B is a photocopy of a page from the cell block log. There are
two pertinent entries: "Late Entry 11:00/PM Inmate Tehfe, H. 92A9339 26 Cell
slipped on wet floor, bumping head on fire house box. Inmate refused medical
treatment, stated ‘he was alright' Sgt. Cohn notified of situation" and
"8:00AM Notified Fire & Safety Officer that Water Main pipe is leaking by
Fire box by Officer's bathRoom, Maint. Work request filled out".
During the course of the trial the recreation room was on occasion identified as
the day room.