New York State Court of Claims

New York State Court of Claims

HASSAN v. THE STATE OF NEW YORK, #2000-004-015, Claim No. 100881


Synopsis



Case Information

UID:
2000-004-015
Claimant(s):
TEHFE HASSAN
Claimant short name:
HASSAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100881
Motion number(s):

Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
ALLEN S. GOLD, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
BY: Earl F. GialanellaAssistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 22, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 scene.


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 side...".[1]
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".[2]
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 been.

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?

A: Yeah.

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?

A: (Silence)

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 maintenance".[3]
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 fell.

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.[4]


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 responded,

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 condition.


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 his fall.


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.



November 22, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims




[1]
Unless otherwise indicated, all quotations are verbatim and are from the Court's trial notes or from the trial electronic recording cassettes.
[2]
Since Claimant was serving time for manslaughter, this opinion may have been a comment on the Department of Correctional Services rehabilitation efforts.
[3]
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".
[4]
During the course of the trial the recreation room was on occasion identified as the day room.