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
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."
He turned, his left leg went into a "hole," he heard a pop and fell to the
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
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
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
, 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
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
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
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
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
The Clerk is directed to enter a judgment in accord with this decision.