New York State Court of Claims

New York State Court of Claims

HAVEN v. THE STATE OF NEW YORK, #2001-010-027, Claim No. 97132


Slip and fall on water in men's locker room. Held no notice, no showing of recurrent condition, no liability.

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):

Terry Jane Ruderman
Claimant's attorney:
JAMES F. DONOHUE, ESQ.By: Thomas M. Roach, Jr., Of Counsel
Defendant's attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 19, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Ronald F. Haven, hereinafter claimant,[1]
seeks damages for injuries that he allegedly sustained on May 20, 1996 at Helen Hayes Hospital in Rockland County, when, after showering, he slipped on some water on the floor of a changing booth located in the men's locker room, adjacent to the pool. Claimant alleges that the area was negligently maintained and should have had rubber mats on the floor of the changing booths. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that he had been using the pool three times a week for approximately one year as part of a therapeutic aquatic program to help his back problems. On May 20, 1996, claimant checked in with the hospital security guard between noon and 12:15 p.m. Claimant proceeded to the men's locker room, a 10 by 30 foot area adjacent to the pool. The area had showers, bathrooms, lockers and two curtained changing booths. Claimant changed inside the left booth. After claimant completed his 12:30 p.m. session, he took a shower, wrung out his swimsuit and, wearing a towel, proceeded to the changing area. Finding the left booth occupied, claimant entered the right booth. Claimant stated that as he turned to sit on the bench located inside the booth, he slipped on a puddle and fell to the floor. Claimant testified that he had not observed the puddle before his fall and he did not know the source of the water. He explained that it was his practice to put his towel down without looking at the floor. Claimant stated that, prior to his therapy session, he had noticed that the floor near the showers was wet, but there were no puddles. He did not notice any significant wetness near the changing booths.
Roger Russell, a Clinical Assistant in the Physical Therapy Department on May 20, 1996, testified that his responsibilities included assisting the physical therapists in the clinical sessions and helping patients in the changing area. Prior to claimant's fall, Russell was in the changing area at approximately 12:30 p.m. and did not recall seeing any water. Russell stated that, prior to May 20, 1996, he had observed water on the floor, but he had never observed any puddles. Russell described the floor as a vulcanized, rubberized tile with a rough, anti-skid surface.

Russell responded to claimant's accident and observed claimant sitting on the floor. The area around claimant seemed to be damp, but there were no puddles.

Nancy Brown, the Associate Director of Physical Therapy for four and one half years prior to May 20, 1996, testified on behalf of defendant. Her responsibilities included the investigation and resolution of problems relating to the changing area. She did not recall any complaints of puddling in the four and one half years before claimant's accident and she was not aware of any prior accidents in the area. Brown acknowledged that because the area was adjacent to the pool, there were occasions when there was water on the floor. Staff members towel dried the area during the day, as was necessary, and the area was mopped at the end of each day.

Prior to claimant's accident, a rubberized tiled floor was installed to replace rubber mats in the changing area that had been placed over a linoleum tiled floor. Brown explained that the mats had caused problems for patients in wheelchairs and the new floor provided a nonskid surface which eliminated the need for the mats.

Brown responded to claimant's accident and concluded that the water on the floor had come from either claimant's bathing suit or another patient. She did not observe any other possible source of water.

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 is one of reasonable care under the circumstances (see, Miller v State of New York, 62 NY2d 506, 513; Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 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 (
see, 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 foreseeably 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 History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd. 88 NY2d 955).
Upon listening to the witnesses testify and observing their demeanor as she did so, the Court finds that the credible evidence failed to establish claimant's burden of proof (
see, Seneglia v FPL Foods, 273 AD2d 221 [no evidence that defendant created or had either actual or constructive notice of wet floor upon which plaintiff fell]). Rather, the evidence established that claimant slipped on the floor of a changing booth due to wetness that was most likely caused by him. Claimant testified that, prior to his 12:30 therapy session, he had not noticed any significant wetness near the changing booths and Russell testified that he was in the changing area at approximately 12:30 p.m. and did not recall seeing any water. Accordingly, there is no basis for finding that the floor had been wet for an appreciable length of time so as to permit defendant to rectify the condition (see, Puryear v New York City Hous. Auth., 255 AD2d 138, 139 [plaintiff failed to establish that particular puddle existed for sufficient time to enable defendant to rectify]).
Additionally, Brown testified that, in the four and one half years prior to claimant's fall, she was not aware of any accidents or complaints of puddling. Thus, there was no showing of a recurrent condition (
see, Chemont v Pathmark Supermarkets, ___ AD2d ___, 720 NYS2d 148; Bernard v Waldbaum, Inc., 232 AD2d 596). Moreover, defendant's general awareness that the locker room floor, adjacent to the pool, gets wet is insufficient to establish that defendant had constructive notice of the particular condition that caused claimant's fall (see, Kershner v Pathmark Stores, ___ AD2d ___, 720 NYS2d 552 [proof that defendant was aware that floor became wet during rainy weather was not sufficient to establish constructive notice of particular condition that caused plaintiff's fall]; Serrano v Havan Realty Co., 234 AD2d 86 [defendant's general awareness of dog urine in building's hallways, without proof of length of time particular condition had existed prior to plaintiff's fall, was insufficient to establish constructive notice]).
The evidence established that the area was towel dried, as necessary, and mopped at the end of each day (
see, Stefan v Monkey Bar, 273 AD2d 133 [complaint was properly dismissed where there were no complaints of wetness and floor was cleaned as necessary]). Accordingly, the Court finds that defendant was not negligent in its maintenance of the area; nor does the Court find that defendant was negligent in its failure to have rubber mats in the changing area. The evidence established that rubber mats had caused problems for wheelchair patients who used the pool and the rough surface of the rubberized tile floor eliminated the need for mats.
Finally, wetness in a locker room changing booth, located adjacent to a pool, is an open and obvious condition to be expected in such an area (
see, Korothy v Corwin, 275 AD2d 301 [puddle on deck of water craft does not constitute a dangerous condition, rather it is open and obvious and inherent in boating]). Claimant was bound to see that which was there to be seen and claimant admittedly did not look down at the floor as he turned to sit on the bench in the changing booth (see, Stasiak v Sears, Roebuck and Co., ___ AD2d ___ [2d Dept, Mar. 19, 2001] [complaint dismissed in slip and fall case where plaintiff could have easily observed puddle of spilled paint]). Thus, claimant's own negligence was the sole proximate cause of his fall.
Defendant's motion to dismiss, upon which decision was reserved, is now granted.


April 19, 2001
White Plains, New York

Judge of the Court of Claims

[1] The claim of Judith C. Haven, claimant's wife, is derivative.