New York State Court of Claims

New York State Court of Claims

HELIODORE v. THE STATE OF NEW YORK, #2001-007-582, Claim No. 99616


Claimant allegedly slipped and fell on a wet floor as he exited his cubicle in the dormitory at Bare Hill Correctional Facility. Claim dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

John L. Bell
Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
January 3, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

On March 23, 1998, claimant, a 22-year-old inmate at Bare Hill Correctional Facility (hereinafter "Bare Hill"), allegedly slipped and fell on a wet floor as he exited his cubicle in the dormitory in which he resided. As a result of the fall, claimant fractured his left leg. A bifurcated trial, limited to the issue of liability, was conducted.

Claimant testified that he was sent to Bare Hill about one and one-half years before the subject incident, resided in a single cubicle numbered 36 in Dormitory I-1 and served as a dormitory porter. He stated that he arose about 6:30 a.m. on the morning of March 23, 1998 and walked to a bathroom located about 40 feet from his cubicle, which had no toilet. He recalled that upon returning to his cubicle, he dressed and then proceeded about 7:30 a.m. to eat breakfast in a cafeteria in another building. Following breakfast he returned to his cubicle about 8:00 a.m. and went to bed.

Allegedly, claimant saw no one cleaning the floor or aisle outside his cubicle when he went to breakfast or upon his return. He testified that upon awakening about noontime, he dressed and wore Corcraft boots issued by the State. He asserted that the boots had hard plastic heels. As regards mopping the floor or aisle outside the cubicles of the dormitory, he testified that no facility routine existed concerning a specific time for mopping. He further related that he had not seen anyone "cleaning" the floor before he left his cubicle about 12:30 p.m. to proceed to lunch. Claimant testified that he was in no hurry as he exited his cubicle and that as he took two or three steps, his right leg went forward, his left leg went backward and he fell onto his left leg. He then advised that his hands slipped when he tried to rise and that his back and buttocks were then wet. He avowed that his left leg was under his back and he felt pain. After testifying that an inmate advised the correction officer on duty on the tier that claimant had fallen, claimant stated that the correction officer came to the scene, asked what was wrong and tried to move him. Claimant told the correction officer not to move him because of the substantial pain that he was experiencing in his left leg. When a facility nurse arrived, she tried to remove claimant's left boot. Since claimant's foot was swollen, the boot could not be removed at that time. Thereafter, claimant was taken to a local hospital where his left leg was placed in a cast. Claimant asserted that he used a wheelchair for two months after his fall.

Upon next being questioned by his counsel, claimant testified that when the correction officer asked him what had happened, he simply replied: "I slipped and fell." In the "Report of Inmate Injury" dated "3/23/98 1:10 PM" the cause of injury is reported as "wet floor" (Claimant's Exhibit 2). In the report signed by claimant but obviously prepared by a facility employee, claimant's statement concerning the subject incident reads: "I slipped on wet floor in I-1 dorm injuring L leg, knee, ankle." Finally, on direct examination, claimant testified that he did not observe any correction officer or other Department of Correctional Services employee pass his cell between the time he awakened at noontime and his fall. He also related that he had not seen any inmate porters mopping the floor before he fell.

On cross-examination, claimant testified that he knew that the dormitory floors were mopped on a daily basis. He testified that he first saw water on the floor when he attempted to pick himself up. He acknowledged that he testified at the examination before trial that he had felt water but did not see it. Upon further questioning on cross-examination, he admitted that after he fell, he did not observe any pool or puddle of water on the floor. Defense counsel also secured claimant's acknowledgment that claimant had testified at the examination before trial, contrary to his trial testimony, that he could not say what had caused him to fall, that his leg "went up" and that he slipped and fell.

Claimant called no other witnesses and defendant moved to dismiss. After the court reserved on defendant's motion, defendant called Correction Officer David Dwyer as its only witness.

Dwyer testified that he has worked as a correction officer at Bare Hill for 13 years. He stated that he was working on the day of the incident and knew claimant. He recalled that as he was sitting at his desk, he heard a noise on claimant's side of the dormitory. The witness saw several inmates standing in an area about 30 to 60 feet from the desk. He walked to the area and was told that claimant had fallen. When he asked claimant what had happened, claimant told him simply that he had slipped and fallen. He related that claimant was lying in the "corridor" with his legs in his cubicle. When the witness looked at the floor, he supposedly saw "nothing out of the ordinary" and testified that he had observed nothing on the floor and that claimant's clothing did not appear to be wet.

Dwyer testified that he supervised inmates in the mopping of dormitory floors and that although floors could be mopped at any time, inmate porters customarily mopped floors at a time when little traffic existed. He specifically stated that on the day of the incident the floors were mopped about 9 to 9:30 a.m. The witness indicated that customarily signs were placed on the floor outside the dormitory cubicles when the floor was mopped with soap and water and then mopped again with clean water. He advised that prior to claimant's accident, he had determined that the floor was dry but that the cones were left out that day and were still on the floor when the subject incident occurred. Upon further questioning, he testified that he believed that only one cone was out when claimant fell.

On cross-examination, Dwyer testified that he was a relief officer for three dormitories, including claimant's dormitory. Contrary to claimant's testimony relative to the cubicle in which claimant was housed, Dwyer testified that claimant occupied cubicle 48. He stated that when he went to the area where claimant was lying, the lower part of claimant ‘s legs were in cubicle 48 and his body was outside the cubicle toward cubicle 49. He further testified that he remained with claimant a few minutes and then called for assistance. Two escort correction officers arrived with a nurse.

When questioned by claimant's counsel concerning the cones, Dwyer testified that the cones were three to four feet high and orange in color with the word "caution" written on them. He stated that the cones were kept normally in a slop sink of the recreational area when they were not in use. He acknowledged that there was no entry in the dormitory log book relative to inspection of the floor and its being dry on the day of the incident, that such an entry was customarily placed in the log book and that he could not say why an entry had not been made. He further acknowledged that ordinarily cones were removed once the floor was dry.

The State, having waived its sovereign immunity, is subject to the same rules regarding premises liability as govern private landowners (Court of Claims Act § 8;
Preston v State of New York, 59 NY2d 997; Florence v Goldberg, 44 NY2d 189, 194-195). It must therefore maintain its premises in a reasonably safe condition in light of all the relevant, prevailing circumstances (Miller v State of New York, 62 NY2d 506) and has a duty to take every reasonable precaution to protect those who are in its institutions (Condon v State of New York, 193 AD2d 874). The measure of reasonableness is essentially factual in nature (see, Trincere v County of Suffolk, 90 NY2d 976). The State is not an insurer of its premises and thus the mere happening of an accident does not constitute negligence (Clairmont v State of New York, 277 AD2d 767, lv denied 96 NY2d 704; Matter of Boettcher v State of New York, 256 AD2d 882; Davis v State of New York, 133 AD2d 982).
Whether or not the floor outside claimant's cubicle was wet when he fell is open to considerable question in light of the court's conclusion, based upon the demeanor of both claimant and Dwyer when they testified, that they were not completely credible. The court notes, for example, that claimant testified that he had awakened at noontime and left his cell about 12:30 p.m. He specifically stated that he had not observed anyone mopping the floor outside his cubicle in the morning of March 23, 1998 or between 12 noon and 12:30 p.m. If the floor had been mopped before noon, it is reasonable to conclude that any accumulation of water on the floor would have been negligible. Moreover, claimant testified that he first saw water on the floor after he had fallen and as he attempted to pick himself up. When he was questioned at the examination before trial, he testified that he could not say what had caused him to fall. He did not tell Dwyer that he had fallen on a wet floor. At the trial, however, he stated with certainty that water on the floor had caused his fall. On the other hand, Dwyer testified that ordinarily the dormitory's log book included inspections by the correction officer on duty and no entry was made in the log book on the date of the incident concerning mopping activities. He purported, however, to remember, without any log book entry, that although floors could be mopped at any time, the floors were mopped on the accident date at 9:00 or 9:30 a.m. He further testified that the warning cones stayed out until the floors had dried and that prior to claimant's accident he had determined that the floors were dry. He then testified that the cones were nevertheless left out that day and were still out when the accident occurred. Upon questioning by the court, Dwyer stated that perhaps only one cone was on the floor or aisle on which claimant had fallen.

During his closing statement to the court, claimant's counsel raised the salient point that the State had not produced at the trial the correction officers and the nurse who arrived outside claimant's cubicle to assist claimant. Although a party is not required to call any particular person as a witness, a fact-finder may draw an unfavorable inference against the party not calling the witness (
Noce v Kaufman, 2 NY2d 347; 1A PJI 1:75). Such inference may support findings in a bench trial (see, Turner Press v Gould, 76 AD2d 906) provided that an uncalled witness who possesses information on a material issue and would be expected to provide noncumulative testimony favorable to the opposing party is under the control of and available to such party (Iovine v City of New York, 286 AD2d 372; Savage v Thomas J. Shea Funeral Home, 212 AD2d 875; IA NY PJI 3d 93). In all probability, either the escort correction officers and the nurse or all three were still employed by the State at the time of trial. Each witness could have testified that the floor was wet or dry or that the witness had no remembrance of the condition of the floor. Such testimony could have assisted the court in determining the reliability of certain irreconcilable testimony of claimant and Dwyer. Indeed, since the State knew that the theory of claimant's case was predicated essentially on the existence of a wet floor, one would expect that the State would have attempted to produce one or more of such witnesses to contradict claimant's contention concerning the condition of the floor. If credible testimony of any or all of such witnesses demonstrated that the subject floor was not wet, the underpinning of claimant's case, apart from any other consideration, would have been destroyed.
But, assuming,
arguendo, that the floor outside claimant's cubicle was wet by virtue of mopping at some point in time prior to claimant's fall, the court nevertheless concludes that claimant has failed to sustain his burden of proof by a fair preponderance of the credible evidence that the State either created a dangerous condition or had actual or constructive notice of it (see, e.g., Piacquadio v Recine Realty Corp., 84 NY2d 967; Malossi v State of New York, 255 AD2d 807; Zonitch v Plaza at Latham, 255 AD2d 808; Bashaw v Rite Aid of N.Y., 207 AD2d 632). In a slip and fall case, a plaintiff or claimant always has such burden of proof (Malossi v State of New York, supra; Bashaw v Rite Aid of N.Y., supra; Vautrin v First Natl. Supermarkets, 202 AD2d 942). No evidence was adduced concerning the slipperiness of the subject floor whenever it was washed or the nature and extent of the accumulation of any water on the floor on the date of claimant's fall. Indeed, claimant testified at the examination before trial that he did not see a pool or puddle of water on the floor and could not say what had caused him to fall. Being a dormitory porter, claimant necessarily was particularly aware that the subject floor was washed at various times during the day. If the floor was wet as contended by claimant, well-established precedent mandates that there is no duty to warn of a condition that is open and obvious and can be observed readily by a reasonable use of one's senses (see, e.g., Weigand v United Traction Co., 221 NY 39, 42; Patrie v Gorton, 267 AD2d 582, lv denied 94 NY2d 761; Tarricone v State of New York, 175 AD2d 308, 309, lv denied 78 NY 2d 862). Lastly, defendant cannot reasonably be held to a duty of unremitting supervision of all inmates in its penal institutions whenever floors of such institutions are cleaned on a daily basis.
Defendant's motion to dismiss, upon which the court reserved decision at trial, is now granted. The claim is dismissed and the Chief Clerk of the Court of Claims is directed to enter judgment accordingly.

January 3, 2002
Plattsburgh, New York

Judge of the Court of Claims