New York State Court of Claims

New York State Court of Claims

WINBUSH v.THE STATE OF NEW YORK, #2000-016-047, Claim No. 98979


Synopsis


Following trial, claim of pro se claimant alleging shower slip and fall at Woodbourne Correctional Facility was dismissed.

Case Information

UID:
2000-016-047
Claimant(s):
WILLIE WINBUSH
Claimant short name:
WINBUSH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98979
Motion number(s):

Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Willie Winbush
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
July 24, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Pro se claimant Willie Winbush alleges that because of defendant's negligence, he slipped and fell in a shower at Woodbourne Correctional Facility on August 24, 1998. The claim was tried at Sullivan Correctional Facility on June 22, 2000. Winbush testified on his own behalf. Defendant called correction officers Christopher Ingham and James Dunn.
Claimant testified that at the time of the incident, he was new to the facility, having been there only a few days -- although he had taken showers at Woodbourne previous to August 24. He went to the shower room, which he described as having eight or nine shower heads on one wall. He described the floor as slippery, stating that some areas were wet and some were damp. He explained that about three of the shower heads were leaking water, which he described as "shooting out" of the heads. Claimant said that he chose the "best" shower head. Claimant also said that the conditions in the room were "light." When he was finished with his shower, he went across the room to get his towel and underwear, when he suddenly slipped and fell to the floor. He described the area where he fell as "slicker than ice." Claimant stated that at the time of his fall, he was the only inmate using the showers. He also stated that he was wearing clogs at the time of the incident. Claimant testified that a correction officer came to his aid after the fall, and he went to the Woodbourne infirmary for medical treatment.

Claimant asserted that the showers were supposed to have rubber mats, but that they were not there at the time of his fall; rather the mats were outside by a correction officer's desk. Claimant explained that the mats are removed from the shower area each day by porters so that the area underneath could be cleaned.

As to his injuries, claimant said that he fell very hard, and described the pain as feeling "like being trampled . . ." He apparently landed on his hip, stating that he hurt his back, hip and head. Claimant's Ambulatory Health Record for the date in question states that claimant "slipped & fell on shower floor injuring [right] hip and buttock." It indicates that claimant ambulated well, his skin was intact and there were no abrasions, swelling or redness noted. It also indicates that an ice pack and Motrin were issued to claimant. See Claimant's Exhibit 1.

Winbush said that he still aches today and takes aspirin for his pain. He said that he had no limitations in terms of work or other activities but reiterated that he can still feel pain from the incident.

Claimant introduced as Exhibit 6 the minutes on an Inmate Liaison Committee Meeting of June 17, 1998.[1]
The minutes apparently indicate that inmates had raised the issue that "[t]he bathroom/shower area in F and E dorms are in a general state of disrepair. The area [has] a plethora of problems [. . .] heads don't [work], sinks are without washers, causing continuous leaks, ceiling grates are rusty and falling, and there is no exhaust fan to dissipate moisture, creating an incubator of fungus and bacteria. These issues have been on previous . . . agendas, but . . . little or nothing has been done . . ." The facility's response to this issue states that it was "reported that showers in C-D Block done; outside contractors are to do A and B blocks. Three weeks starting in F-3 and working through all dorms - new ceiling tiles, new framing and grids. Order for dorms is F-3, E-3, F-2, E-2 and E-1."
Correction Officer Christopher Ingham testified that at the time of the incident, he was assigned to claimant's housing unit at Woodbourne, the F-2 unit. He stated that he was familiar with the shower area in claimant's unit and stated that the only things being repaired in that unit were the ceiling tiles. Ingham said that there were leaks on the shower heads, but the water did not shoot out. He described the shower area in the F-2 unit as being in generally good condition. He explained that the area is one big open room with toilet stalls in the back, six shower heads on the right, sinks on the left and several urinals in the corner. He said that the clothes changing area is eight to ten feet from the showers themselves. He noted that the floor is level except for an area that goes down a little for the drain by the showers. He also said that there was a small lip around the shower area.

Ingham testified that porters clean the shower room one or two times per morning, explaining that they take the mats out, clean everything and then replace the mats. He said that the mats were made of rubber and were only used in the sink area of the room. He also explained that inmates can shower anytime they wish during the day.
* * *
As set forth above, there appears to be some dispute as to what caused claimant's fall. Claimant attributed his fall to a slippery floor caused by leaking shower heads that "shot out" water. Defendant asserted that water did not "shoot out," and that the F-2 shower room was in generally good condition, although there was a concession that some of the shower heads did leak. However, even assuming
that leaking shower heads resulted in a slippery floor, causing claimant's accident, that is not the end of claimant's burden of proof.
It is not disputed that the state has a duty to maintain reasonably safe premises. See, e.g.,
Basso v Miller, 40 NY2d 233, 386 NYS2d 564 (1976). But the state is not an insurer and negligence may not be inferred solely from the occurrence of an accident. See Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977).
In order to establish liability, claimant must show either that the defendant created, or had actual or constructive notice of the condition which caused claimant's accident. See, e.g.,
Bernard v Waldbaum, Inc., 232 AD2d 596, 597, 648 NYS2d 700, 701 (2d Dept 1996).
Claimant's evidence was insufficient to prove that defendant created the condition of the floor causing his injury. As to actual notice, he introduced the Inmate Liaison Committee minutes (Exhibit 6). While the minutes indicate that inmates had described E and F dorm shower areas as in a "general state of disrepair," there is no indication in the minutes that the F-2 dorm shower heads were leaking – inmates had apparently stated that the
sinks had "leaks," while the shower heads, in contrast, were listed as "not working." Moreover, there is no indication in the minutes that there was any problem with slippery floors or water accumulating on the floors.[2] In addition, the facility response indicated that the E and F dorms would be getting new ceiling tiles, new framing and grids. Again, nothing is mentioned of problems with leaking shower heads or the accumulation of water. In short, I find that claimant has provided insufficient evidence to prove that defendant had actual notice of the defective condition which he asserts caused his fall. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient period of time prior to the accident to permit defendant to discover and remedy it. See Bernard, supra, 232 AD2d at 597, 648 NYS2d at 701. Claimant presented no evidence as to how visible and apparent the condition in question was, or how long it had been that way and accordingly, I cannot find that defendant had constructive notice of such condition.
In short, Willie Winbush failed to prove defendant's negligence by a fair preponderance of evidence adduced at trial and accordingly,
IT IS ORDERED that his claim is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.

July 24, 2000
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]Correction Officer James Dunn explained that the Inmate Liaison Committee is comprised of inmate representatives selected by inmates, who meet monthly or bi-monthly with the executive team from the facility. The inmates prepare an agenda of items of concern which the administration attempts to investigate and possibly correct. At the meeting, the inmate representatives and the executive team sit down and exchange ideas and the results of the investigations.
  2. [2]As to mats, it was somewhat unclear as to where claimant fell relative to the mats' normal placement; claimant stated that he fell while going to get his towel and underwear, whereas Officer Ingham testified that mats were only used by the sinks. However, even assuming that mats would have prevented claimant's fall, as set forth above, no evidence was presented that defendant had any notice of a dangerous condition requiring the use of mats.