This decision follows the trial of Adela Holzer's claim for injuries caused by
a locker which fell on her at Parkside Correctional Facility in Manhattan.
The issue of liability was tried November 2, 2000; other than the claimant
herself, no witness was called by either party.
As of February, 1993 Ms. Holzer had been at Parkside Correctional for a number
of months. She was in a work release program and would return to the facility by
the early evening. According to the claimant, the lockers were loosely assigned,
and she was never given a padlock or the key. At about 8 p.m. on February 22,
1993, Holzer went to the locker where she believed she had stored her large bag.
According to claimant's trial testimony, the locker fell or tipped over when
she opened it. Her deposition testimony of March 1997 is not inconsistent
therewith; nor is her statement made at the time of the accident (cl exh 2).
However, defendant points to the Report of Injury to Inmate, which suggests she
was doing more than simply opening the locker: "Claims while attempting to move
her locker the locker ‘fell' on her" (cl exh 1). For the Report, claimant
was interviewed by a Sergeant V. Hardy.
Defendant made other efforts to undermine Holzer's credibility.
In any event, there is no basis to question the essentials of Holzer's claim -
that a locker fell on her and pinned her for a short time at Parkside CF.
Nonetheless, Holzer's claim must be measured against some fundamental legal
concepts. While the correctional facility has a duty to maintain reasonably safe
premises, it is not an insurer, and that an accident occurred does not
necessarily implicate liability. Condon v State of New York
, 193 AD2d
874, 597 NYS2d 531 (3d Dept 1993); Mochen v State of New York
, 57 AD2d
719, 396 NYS2d 113 (1977). In order to establish liability, to prove that the
defendant was negligent, it must be shown that a dangerous condition existed
which was created by the defendant; or if not so created, that the defendant had
notice or should have had notice of. Bernard v Waldbaum, Inc.
, 232 AD2d
596, 648 NYS2d 700 (2d Dept 1996).
Holzer testified that two of the lockers -- there could have been more -- had
"crooked legs"; she recalled that these two were wobbling. However, claimant was
rather vague on demonstrating that either of the two was the one that victimized
her on February 22, 1993. Among other things, as noted above, lockers were not
specifically assigned. Claimant, by her testimony or other evidence, did not
supply any information to account for the alleged instability of the lockers
– did it arise from their manufacture, installation or maintenance? Nor
for that matter did claimant attempt to describe the lockers' size,
configuration or other features. Moreover, the lockers were constantly in
hurried, jumbled use by the inmates; they were not in the exclusive control of
the defendant. See, e.g.
, Raimondi v New York Racing Association
213 AD2d 708, 624 NYS2d 273 (2d Dept 1995).
As to notice – constructive or actual – no independent source
There is nothing to that effect in Holzer's one-page narrative statement
executed contemporaneously with the accident (cl exh 2). Claimant provides no
evidence, for example, as to the placement of the lockers, the assignment of
officers or their observations of the interactions of inmates with the lockers
that would permit the inference of constructive notice that a locker could tip
when opened. See Gordon v American Museum of Natural History
, 67 NY2d
836, 501 NYS2d 646 (1986).
At trial, claimant's testimony contained two references to actual notice.
Holzer testified that when she
fell, two inmates who helped her up exclaimed "you are the second one
hurt...with [this] locker..."
The statement is inadmissible hearsay.
Claimant also contended that three or four weeks before her injury she informed
an officer, a Sergeant Benitez, that there were two or three lockers with
crooked legs: "you should do something about it". Again, this was not
otherwise confirmed; for example, by a written document such as a log entry made
by Benitez. In any event, the claimant bears the burden of proving her case by
the fair preponderance of the evidence, meaning that in order for Holzer to
prevail on a claim, the evidence that supports her claim must appeal to the
trier of fact as more nearly representing what took place than the evidence
opposed to her claim (PJI
1:23). This trier of fact cannot so
* * *
In view of the foregoing, Adela Holzer has failed to prove her case by a
preponderance of the credible evidence, and her claim is dismissed
motions not previously ruled upon are deemed denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.