Ronald F. Haven, hereinafter claimant,
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
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
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
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 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
, 67 NY2d 836; Ligon v Waldbaum, Inc.
, 234 AD2d 347; Mercer
v City of New York
, 223 AD2d 688, affd.
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 (
, 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 (
, 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
, ___ 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
The evidence established that the area was towel dried, as necessary, and
mopped at the end of each day (
, 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 (
, 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
, ___ 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
Defendant's motion to dismiss, upon which decision was reserved, is now
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 97132.