Claimant seeks damages for injuries he allegedly sustained on September 12, 1996
during his incarceration at Sing Sing Correctional Facility ("Sing Sing").
Claimant was using a cane and fell as he attempted to descend a flight of stairs
within the facility. Claimant contends that his
split and that the tip became detached,
causing him to fall. He further contends that defendant is liable for his
injuries because defendant provided him with the cane after his knee surgery in
April and that defendant was negligent in failing to issue claimant a bus pass
which would have enabled claimant to avoid descending the particular staircase
where the accident occurred. Claimant concedes that, even with a bus pass, he
would have necessarily descended four other flights of stairs to reach the bus
stop. The trial of this claim was bifurcated and this Decision pertains solely
to the issue of liability.
Claimant testified that he had been experiencing problems with his knee since
1992 and surgery was performed on it in April 1996. The medical staff at Sing
Sing issued claimant bus passes that were usually valid for two to three months.
A bus pass permitted claimant to use the bus from his housing block to his work
assignment as a tutor in the school building. Since 1994, claimant has used the
bus to travel to his work assignment. According to claimant, even when his bus
pass had lapsed, the corrections officers permitted him to use the bus.
Therefore, he never complained of a lapsed bus pass. A bus pass did not
eliminate the necessity to use stairs. From his cell, claimant had to descend
four flights of stairs, each with 15 steps to reach the ground level. He then
had to walk a distance of more than two city blocks to the bus
On September 12, 1996, claimant was walking with a cane.
Claimant attempted to board the bus, but was denied access because he did not
have a bus pass. Claimant proceeded on foot. As he descended a flight of
stairs, claimant held the railing with his left hand and held the cane in his
right hand. Claimant did not recall whether he had placed the cane straight or
slanted on the step as he proceeded. Claimant slipped and fell, landing near
the bottom of the stairs. After the fall, it was discovered that the cane was
split and its rubber tip was detached. He testified that he had been using the
cane, without incident, for one to two weeks prior to his fall and that he did
not have occasion to inspect the cane prior to his
Dr. Mikulas Halko, a physician at Sing Sing since 1980, testified that he had
claimant for his various orthopedic problems for many years. As reflected in
claimant's Ambulatory Health Record (Ex. 9), Halko had prescribed the cane for
claimant in May 1996 and renewed the order in July and September. Halko
explained that bus passes are a written permit that allow an inmate to ride a
van or small bus within the Sing Sing grounds. It enables an inmate to avoid
walking long distances where hills and stairs may be encountered. However, an
inmate would still be required to walk to and from the bus and would necessarily
encounter stairs. Orders for bus passes are written by doctors, physician
assistants, or nurses, and cosigned by the Director of the Medical Department.
The orders were recorded in an inmate's Ambulatory Health Record.
Claimant's record shows that a bus pass was issued to him on July 18, 1995 and
April 3, 1996. On September 3, 1996, Halko wrote "bus
in claimant's record; however, the words were subsequently crossed out by an
unidentified individual. There was no explanation for the cross-out and no
other reference to a bus pass. Had claimant requested a bus pass between
September 3rd and September 12th, the date of the accident, it would have been
noted in his record. The absence of any notation indicated to Halko that
claimant had not made any such request.
It is well established that "[t]he State just as any other party *** is
responsible, in the operation and management of its schools, hospitals and other
institutions, only for hazards reasonably to be foreseen, only for risks
reasonably to be perceived" (
Flaherty v State of New York
, 296 NY 342, 346) and with respect to the
safety of persons on its property, the duty of the State if one of reasonable
care under the circumstances (see
, Miller v State of New York
NY2d 506, 513; Preston v State of New York
, 59 NY2d 997, 998; Basso v
, 40 NY2d 233, 241).
The State, however, is not an insurer of the safety of its premises and
negligence cannot be inferred solely from the happening of an accident (
, Killeen v State of New York
, 66 NY2d 850, 851; Condon v
State of New York
, 193 AD2d 874). In order to prevail on his claim claimant
must show: the existence of a foreseeable dangerous condition; that the State
created the condition or had either actual or constructive notice of the
condition; that the State failed to remedy the condition within a reasonable
time; that such condition was a proximate cause of claimant's accident; and that
claimant sustained damages (see
, Gordon v American Museum of Natural
, 67 NY2d 836; Ligon v Waldbaum, Inc.
, 234 AD2d 347; Mercer
v City of New York
, 223 AD2d 688, affd
88 NY2d 955). Where an inmate
fails to use ordinary care and pursues a dangerous course of conduct, the inmate
is required to take some responsibility for his own negligence (see
Carter v State of New York
, 194 AD2d 967; Hicks v State of New
, 124 AD2d 949).
Claimant argues that the strongest of negative inferences should be drawn
against defendant for its failure to preserve the cane as evidence. Even upon
such inference, the Court finds that there is insufficient other evidence to
establish claimant's burden. Significantly, claimant had used the cane, without
incident, for weeks and had not noticed any defect. Certainly, claimant had the
greatest incentive and opportunity to observe any apparent defect and claimant
was bound to see that which could have been observed by a proper use of his
, Doyle v State of New York
, 271 AD2d 394, 395).
Claimant, however, did not report any noticeable defect with the cane prior to
his accident. Accordingly, there is no basis for finding that the cane was
defective or that defendant had any notice that the cane may have been
With regard to the bus pass, the Court finds that the credible evidence failed
to establish that any negligence attributable to
defendant was a proximate cause of claimant's accident. First, claimant, who
had several other claims pending in the Court of Claims, is familiar with the
process of making complaints regarding his treatment within the correctional
system; yet he did nothing about his purported need for a bus pass. Moreover,
it is noted that, even if claimant had a valid pass on the date in issue, he
still would have had necessarily descended several flights of stairs and walked
a long distance to reach the bus stop. Thus, the Court rejects claimant's
argument regarding the impact of not having a valid bus pass on the date in
issue and the Court finds that such failure was not a proximate cause of his
Defendant's motion to dismiss, upon which decision was reserved, is now
GRANTED. All other motions not previously ruled upon are denied.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 97120.