New York State Court of Claims

New York State Court of Claims

HARRISON v. THE STATE OF NEW YORK, #2000-015-517, Claim No. 98095


Claimant, who allegedly fell on loose tiles in shower area of facility failed to prove at trial that the defendant created the condition or had actual or constructive notice of it and a reasonable opportunity to repair and failed to do so. Trial Court found no liability on part of the defendant.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Mark J. Rayo, P.C.By: Louis A. Badolato, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireStaff Attorney
Third-party defendant's attorney:

Signature date:
September 13, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

This is a claim by a former inmate alleging that he fell in the shower area of the C-2 Dorm at the Washington Correctional Facility at approximately 10:30 a.m. on October 22, 1997 as the result of a depression in the shower room floor caused by missing tiles which caused him to fall sustaining torn ligaments in his left knee. Claimant contends that tiles had been missing in the shower area since March of 1997 giving notice to the Department of Correctional Services (DOCS) and that repairs made during that month were inadequate.

Claimant's first witness was Correction Officer Harold White who was employed by DOCS for fifteen and one-half years and was assigned to Washington Correctional Facility during March of 1997. Exhibit 1 is a Maintenance Work Request which Officer White initiated on March 12, 1997 for the replacement of tiles in the shower area. The repair procedure in place at Washington Correctional Facility involved the submission of a Maintenance Work Request by a correction officer to the Maintenance Department. The necessary repairs were thereafter performed, sometimes by inmates. Exhibit 1 reflects that the Maintenance Work Request was received on March 13, 1997 and that the repairs were completed on March 14, 1997. Officer White testified that if he had observed loose tiles after the repair work he would have requested further repairs.

Claimant testified that he had been incarcerated on three prior occasions and had been housed at the Washington Correctional Facility since 1995. He was housed in the C Dorm beginning in March of 1997 and used the C-2 shower on a weekly basis until the date of the incident. The C-2 shower has a single entrance with shower stalls or heads located to the right and left of the entrance area. Claimant testified that he entered the shower at approximately 10:15 a.m. on October 22, 1997. Between 10:30 and 10:45 a.m. claimant heard a correction officer say "count."[1]
He turned, his left leg went into a "hole," he heard a pop and fell to the ground.
According to the claimant, the hole which caused his injuries was five to six feet in length and of sufficient width that "the bottom of my feet fit in it." Claimant testified that the hole was the result of loose and missing tiles in the shower area floor and that he had not noticed the condition prior to the date of the accident. He stated that it appeared to him that repairs had been made in the area of the hole due to the presence of different colored tiles.

When questioned about prior injuries to his left knee during direct examination the claimant stated that he had injured his left knee in a bus accident at Riker's Island in 1992 and had re-injured it while jogging in August of 1997. He stated that the August 1997 injury required the use of crutches for approximately one week but that he thereafter returned to work as a delivery person and also resumed jogging. Claimant was released from DOCS' custody during 1998 and received treatments from private physicians who diagnosed torn ligaments.

Upon cross-examination claimant admitted to four incarcerations, the first two of which were under the name Ernest Marshall. Claimant denied any injuries to his left knee other than the two incidents described in his direct testimony. When confronted with Exhibit B claimant conceded that it was a Report of Inmate Injury dated October 17, 1990 which he had signed and which related "fell in hole and injured left knee - twisted" while playing football.

Claimant's counsel read into evidence portions of the examination before trial testimony of L. Michael Atwood, a maintenance mechanic at Washington Correctional Facility since 1989. Mr. Atwood's duties included electrical, masonry, and carpentry repairs. He described the C-2 dorm shower area as fourteen feet by twenty feet with a single entrance. Mr. Atwood testified that at some point in time he observed a quarter inch crack of approximately five feet in length across a corner of the shower area floor with some mortar missing. However, claimant's counsel did not establish when this observation occurred. Claimant rested after submitting the testimony of Dr. Virgilio C. Victoriano and claimant's medical records.

L. Michael Atwood testified on behalf of DOCS and described the crack in the floor which he observed as being approximately five feet long and only a quarter of an inch wide at its widest point. He observed only one or two missing tiles, each one square inch in size. He testified that he did not know how long it would take for mortar to loosen. Mr. Atwood admittedly performed repair work upon the shower room floor subsequent to claimant's accident, evidence of which is inadmissible as proof of negligence (
Fernandez v Higdon Elevator Co., 220 AD2d 293). He stated that there is always water on the floor in the area of the shower.
At the close of the evidence the defendant moved to dismiss the claim for failure to establish a prima facie case. That motion will now be addressed.

To impose liability upon a land owner for injuries resulting from the allegedly defective condition of a shower area floor, the injured party must establish that the land owner either created or had actual or constructive notice of the dangerous condition (
Van Stry v State of New York, 104 AD2d 553). Here claimant's own testimony was that he failed to observe loose tiles or the alleged defect in the floor prior to the accident. Such an admission may negate actual or constructive notice (Blaszczyk v Riccio, 266 AD2d 491). Actual or constructive notice is usually established through proof demonstrating prior similar incidents, including reports of loose tiles (Gutz v County of Monroe, 221 AD2d 838), or a readily observable condition which existed for a sufficient length of time to afford the land owner the opportunity to correct the condition (Van Stry v State of New York, 104 AD2d 553, supra). The fact that there is a quarter of an inch wide crack in a tile floor does not, in and of itself, establish a dangerous condition (Fasano v Crivera, 260 AD2d 426). When the condition of the floor upon which claimant fell is in dispute, resolution of the liability issue will depend on the credibility of the witnesses (Simon v State of New York, 271 AD2d 381).
Exhibit 1 reflects that the repairs called for in the Maintenance Work Request of March 12, 1997 were completed. Correction Officer White testified that if there were tiles missing upon the completion of the repair work he would have put in a further repair order, which he did not do. Claimant entered and exited the shower area on a weekly basis for at least seven months prior to the accident and subsequent to the alleged repairs and never observed missing tiles. The Court did not find claimant to be a credible witness due to his evasiveness concerning his prior incarcerations and the number of times he had injured his left knee.

Moreover, in the Court's view, this record is devoid of credible evidence that DOCS created a dangerous condition of missing tiles in the shower area, had actual notice of such a condition, or that the condition existed for a sufficient period of time prior to the accident to permit the State to be charged with constructive notice of the condition. Absent such evidence, the claim must be dismissed for failure to establish a
prima facie case as to the liability of the defendant. Finally, claimant's trial motion seeking an inference against the defendant on the issue of causation and permanency of the claimant's injury stemming from the defendant's failure to call its examining physician as a witness is denied.
The Clerk is directed to enter a judgment in accord with this decision.

September 13, 2000
Saratoga Springs, New York

Judge of the Court of Claims

[1]All quotations are from the Court's trial notes.