New York State Court of Claims

New York State Court of Claims

PENA v. THE STATE OF NEW YORK, #2000-010-060, Claim No. 92789


Synopsis



Claimant seeks damages for injuries allegedly sustained during his incarceration at Sing Sing Correctional Facility when a window fell out of its frame and struck him on the head.

Case Information

UID:
2000-010-060
Claimant(s):
BERGELIO PENA
Claimant short name:
PENA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
92789
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
BENNET GOODMAN, ESQ.JAMES A. MARTIN, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New York
By: John Henry, Assistant Attorney General Victor D'Angelo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 11, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant seeks damages for the personal injuries he allegedly sustained at approximately 8:20 a.m. on November 11, 1994, during his incarceration at Sing Sing Correctional Facility ("Sing Sing"), when a window fell out of its frame and struck him on the head as he was seated in Mess Hall A.
The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
The window is the second one closest to the food counter in a series of windows that line a 20 foot high brick wall. The top of the window is located 96 inches from the top of the wall. The bottom of the window is 40½ inches from the floor. The window is a slider with an aluminum frame. It is 74 inches by 36 inches,
χ
inch thick and approximately 47 pounds.

Sergeant Edward J. Vaughn, who has been employed as a correction officer by the New York State Department of Correctional Services ("DOCS") for 21 years, was the supervisor for all of the mess halls at Sing Sing and usually arrived with other staff at 5:45 a.m. Inmates entered the mess hall between 7:20 and 7:30 a.m. and stood in lines in front of the windows awaiting their turn at the food counter. Vaughn testified that inmates in the mess hall are supervised by correction officers and that only staff and inmate kitchen workers are authorized to open and close windows. Vaughn testified, however, that he had observed other inmates operating the windows and that, at times, civilian workers were in the mess hall when there were no correction officers present.
Vaughn testified at trial that he saw the window fall, but he did not see it hit claimant. Vaughn was then confronted with his examination before trial ("EBT") testimony
that he had observed the window strike claimant. Vaughn attempted to explain this discrepancy by stating that he had learned from others that the window had struck claimant.
Vaughn responded to claimant lying on the floor.
Claimant was removed from the scene and Vaughn placed the fallen window into the kitchen. Vaughn does not know what happened to the window after that.
Vaughn reported claimant's accident to the watch commander and prepared a written memorandum which stated that Vaughn was "told that this window had been repaired before by institutional maintenance" (Ex. 7). Vaughn also noted that he had checked the tracks for the window and they appeared to "have been
bent outwards which can cause the windows to rattle when wind blows" (Ex. 7, emphasis in original). On cross-examination, Vaughn maintained that the reference to repairs in his memorandum was to winterizing procedures that are performed every fall. Vaughn testified that there were no signs of rust on the window. According to Vaughn, all of the other windows in the mess hall were secure.
Vaughn testified at trial that he had heard rattling on a number of occasions prior to claimant's accident, but that he was not sure if he had heard rattling on that day. When confronted with his EBT testimony that he heard rattling on the day of claimant's accident, Vaughn then recalled having heard the noise at 6:00 a.m. that day. Vaughn never reported any rattling.

Sing Sing Security Directive 546 provides that a weekly inspection be made of all bars, locks, windows, doors and other security devices and Vaughn testified that correction officers were responsible for inspecting the windows weekly (Ex. 15). Vaughn testified that any deficiencies in the windows found as a result of an inspection would be noted in the watch commander's logbook; however the logbook had been destroyed in a flood and was therefore not produced in connection with this trial.
Vaughn testified
that he recalled making a cursory inspection of the windows as he walked through the mess hall on November 11, 1994. He did not, however, include this information in his report, nor did he mention it at his EBT. In fact, there was no evidence, other than Vaughn's own testimony, that window inspections were ever performed as required. Considering the other significant inconsistencies between Vaughn's EBT testimony and his trial testimony, the Court does not credit Vaughn's trial testimony that he recalls making a general inspection of the windows six years ago.
Bruce Carver, the plant superintendent in charge of maintenance at Sing Sing since May 1995, testified that if the window had been repaired, a work order would have been generated. However, he searched the maintenance records for the period from October 15, 1994 through December 31, 1994 and found no work orders for repairs to any mess hall windows.
It is well established that "[t]he State just as any other party *** is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived." (Flaherty v State of New York, 296 NY 342, 346) and with respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see, Miller v State of New York, 62 NY2d 506, 513; Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233,241).
The State, however, is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (
see, Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874). In order to prevail on his claim, claimant must show: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that claimant sustained damages (see, Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955).
Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence established that defendant was negligent in its maintenance of the window and that such negligent maintenance foreseeably led to claimant's injury (see, Telfair v State of New York, 87 AD2d 610; Maguire v Nestun Realty Corp., 1 AD2d 688). Vaughn was admittedly aware that a bent window track could cause rattling (Ex. 7); and he heard rattling on a number of occasions prior to claimant's accident, including the hours before claimant's accident. Nonetheless, Vaughn did not report the rattling to anyone nor did he make a reasonable inspection of the window. Vaughn further testified that correction officers were responsible for weekly inspections of the windows. However, there is no credible evidence before this Court sufficient to establish that any such inspections were ever performed. Notably, defendant cannot claim lack of notice by virtue of its failure to conduct reasonable inspections (see, Weller v Colleges of the Senecas, 217 AD2d 280, 285). The Court finds that, had Vaughn either reported the rattling or made a reasonable inspection of the window at 6:00 a.m. on November 11, 1994, when he head the window rattling, the bent window track would have been discovered and properly addressed prior to the window's fall at 8:20 a.m. Notably, all of the other windows were secure.
Claimant neither caused nor contributed to his accident. Accordingly, the Court finds that defendant is 100 percent liable for claimant's injuries.

All motions not heretofore ruled upon are DENIED.

Upon filing of this Decision, the Court will set the matter down for a trial on the issue of damages as soon as practicable.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.


September 11, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims