New York State Court of Claims

New York State Court of Claims

MONKO v. THE STATE OF NEW YORK, #2000-007-515, Claim No. 97677


Claimant fell on January 1, 1998 in the shower room on E-1 Company at
Clinton Correctional Facility
. He alleges that the water temperature fluctuated suddenly to hot and as he stepped away from the hot water he tripped on a 12-inch board that had been installed at the entrance to the shower. Claim dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

John L. Bell
Claimant's attorney:
Daniel K. Monko, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Frederick H. McGown, III, Esq., Assistant Attorney General, of counsel)
Third-party defendant's attorney:

Signature date:
May 19, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant fell on January 1, 1998 in the shower room on E-1 Company at
Clinton Correctional Facility (hereinafter Clinton). He alleges that the water temperature fluctuated suddenly to hot and as he stepped away from the hot water he tripped on a 12-inch board that had been installed at the entrance to the shower. The trial was bifurcated and thus proof was limited to the issue of liability.
Claimant testified that he has been in a special housing unit (hereinafter SHU) for approximately 10 years. He explained that inmates in SHU are permitted only two to three showers per week. He related that January 1, 1998 was one of his regular shower days. He walked to the shower room in his sneakers. He did not have shower shoes because he had no funds with which to purchase them due to his long-term confinement in SHU. Claimant entered the shower room, stripped and then stepped into the shower.

Claimant provided a detailed description of the shower room through his testimony, drawings he had made (claimant's Exhibits 2, 3, 4 and 5) and a model he had constructed (claimant's Exhibit 1). The shower room was comprised of a drying area and two showers. The two showers were each about three feet by four feet. They were separated by a metal partition, but shared a common drain (claimant's Exhibit 2). On the date of the incident the shower labeled as Stall-A on claimant's exhibits was the only shower that was working. As an inmate entered the shower, there existed a concrete step that measured six inches in height on the drying room side and then dropped down one inch into the shower (see, claimant's Exhibit 5). A 12-inch board had been positioned on top of the concrete step. Thus, an inmate entering the shower stepped up a total of 18 inches to move his feet above the board and then down into the shower a total of 13 inches (claimant's Exhibit 5).

Claimant stated that he grabbed the end of the metal partition between the two showers, stepped over the board into shower stall-A, and then began his shower. Claimant testified that there had been an ongoing problem with the common drain in the shower. Specifically, he stated that there was no cover for the drain and debris would get into the drain causing it to get partially clogged. He related that after several minutes accumulated water would cover approximately half the shower floor. Claimant stated that in an attempt to keep out of the accumulating soapy water, he stood in the back of the shower near the concrete step and board. According to claimant, he suddenly felt a "jolt of hot water."[1]
He moved away from the hot water. He stated that he tried to lift his leg over the board and step through the shower curtain. Allegedly, he tripped on the board and fell "backwards through the shower curtain."
Claimant testified that the fluctuating water temperature had been an ongoing problem with the shower in SHU. He stated that a person using the shower would get a jolt of hot water whenever three or four inmates on the gallery flushed their toilets at the same time. Claimant introduced into evidence an "Inmate Grievance Complaint" filed by another inmate and dated December 20, 1997 in which the inmate complained that the shower on E-1 gallery "keeps going back and forth between hot and cold" (claimant's Exhibit 6).

On cross-examination, claimant acknowledged that he is incarcerated for first degree rape, burglary and forgery. He had been housed on E-block at Clinton since September 1997 and had used the same shower where the incident occurred approximately two times per week for three months. The twelve-inch board had been present in the shower during the entire three-month period prior to the accident that claimant used the shower. Claimant had not made any written complaint about the condition of the shower before the date of the accident. During the three months before the incident claimant experienced the fluctuating water temperature in the shower. He contended, however, that the water had not previously become as hot as it did on the date of the accident. He agreed that he did not receive any burns from the water.

Claimant called Correction Officer James Archambault as a witness. Officer Archambault was assigned to E-1 gallery and related that he brought inmates to the showers as part of his normal duties. He stated that the shower drain does get clogged from time to time and that when it clogs, the maintenance department is called to fix the problem. Officer Archambault has worked in SHU since September 1994. He did not recall hearing any complaints from inmates about the water temperature fluctuating.

Claimant also called Charles Layhee, who is a maintenance supervisor at Clinton. Mr. Layhee stated that he thought the board was installed in the shower in 1997. He recalled that the Inmate Liaison Committee had requested a board in front of the shower stall to reduce the amount of water that went out into the drying area. He believed a lower board was used initially, but it did not keep the shower curtain inside the shower and therefore the higher board was placed in the shower. Mr. Layhee stated that he did not know why there was no cover over the drain in the shower. He added that a temporary cover was not used because inmates could use it to make a weapon. When asked about water temperature fluctuation, Mr. Layhee stated that the temperature might vary "a few degrees" when three or four inmates flushed their toilets. However, he added that there was a "guard" on the water heater that prevented the water temperature from exceeding 110 degrees.

The State is not an insurer of its premises (
see, Davis v State of New York, 133 AD2d 982, 983; Skaria v State of New York, 110 Misc 2d 711, 713). It is subject to the same rules regarding premises liability as govern private landowners and thus must maintain its premises in a reasonably safe condition in view of all the relevant circumstances (Miller v State of New York, 62 NY2d 506, 511-513; Keir v State of New York, 188 AD2d 918). The measure of reasonableness is essentially factual in nature (see, Trincere v County of Suffolk, 90 NY2d 976).
The court is not convinced that the water temperature fluctuated as drastically as proclaimed by claimant. While the water temperature did fluctuate when several inmates simultaneously flushed their toilets, the credible evidence established that any such fluctuation was minimal. The court accepts the testimony of Charles Layhee that the change in water temperature was only a few degrees. Mr. Layhee also testified that the water heater was set to prevent the temperature from exceeding 110 degrees. Based upon such facts, the court does not find convincing claimant's contention that the water suddenly became so hot that he had to move to avoid being burned.

The placement of a twelve-inch board at the entrance of the shower presents a closer question. Indeed, under most circumstances, such a precipitous barrier at an entrance to a shower would present a serious issue of liability. Consideration of the credible facts, however, leads to the conclusion that such conduct was not unreasonable under the prevailing circumstances. Inmates in SHU at Clinton had requested that a barrier be placed at the shower entrance. A lower barrier was initially used, but proved to be ineffective. The twelve-inch board was thus employed. Claimant was fully aware of the board, which had been in place during the entire three months he used the shower before the accident.

Moreover, during the months before the accident, claimant failed to register any written complaints about the conditions in the shower despite his full familiarity with the prevailing conditions. Claimant's other sundry arguments have been considered and, upon weighing the evidence presented, found unpersuasive. The court is not convinced that claimant has proven by a preponderance of the credible evidence that culpable conduct by defendant caused his alleged fall in the shower room.

The claim is dismissed and the Chief Clerk of the Court of Claims is directed to enter judgment accordingly.

May 19, 2000
Plattsburgh, New York

Judge of the Court of Claims

Quotes are from the court's trial notes unless otherwise indicated.