New York State Court of Claims

New York State Court of Claims

ARMSTRONG v. THE STATE OF NEW YORK , #2001-010-049, Claim No. 100443


Synopsis


Ceiling tile fell on inmate. Claimant failed to establish notice or res ipsa.

Case Information

UID:
2001-010-049
Claimant(s):
BERNARD ARMSTRONG
Claimant short name:
ARMSTRONG
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100443
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
LAWRENCE F. SPIRN, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Michael Rosas, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 25, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant seeks damages for injuries he allegedly sustained on July 9, 1998 during his incarceration at Sing Sing Correctional Facility ("Sing Sing"). The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that on July 9, 1998, at approximately 7:15 a.m., he was taking a shower. There was no one else in the shower area (T:9, 33)[1] and, as was customary, the door to the area was closed so that passersby would not view inmates coming out of the shower. According to claimant, there was a mop ringer and there also may have been a mop in the shower area (T:7, 55). Claimant had been in the shower for several minutes and was rinsing the soap from his hair when a ceiling tile fell and hit him on the head (T:9). Claimant fell to the floor and observed two pieces of broken tile. He estimated that the combined pieces measured approximately two feet by four feet. Claimant also observed a corresponding space in the ceiling where the tiles had been located.[2]
Correction Officer Michelle Dickson and a nurse from the facility responded to the scene and assisted
claimant. Claimant was taken to the emergency room at the facility and then to St. Agnes Hospital (Ex. 1).
Correction Officer H. Quinones, the Assistant Fire and Safety Officer at Sing Sing, testified that on July 10, 1998, he investigated claimant's accident because Fire and Safety Officer N. Morris was away on vacation. There was a chair in the shower area that was intended to be used by the inmates while changing their clothes. Quinones observed a mop with a four to five foot handle inside the shower (T:100, 113). He maintained that mops posed a security risk in that area because the handle could be used to push up one of the acoustical type tiles in the dropped ceiling and then contraband could be hidden in the ceiling (T:102-03). Quinones stated that the brackets holding the ceiling tiles had some rust spots, but were intact (T:115).

Correction Officer N. Morris, the Fire and Safety Officer at Sing Sing since 1983, testified that he or his designee made daily, weekly and monthly inspections of the facility. Morris noted that the monthly inspection forms had a category for ceiling defects and that the form dated June 23, 1998, which was the one completed closest to the date of the accident, did not indicate any deficiency regarding the ceiling in the shower (Ex. 5; T:123).
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 they did so, the Court makes the following findings. These was no evidence of either actual or constructive notice of any defect in the ceiling. Routine inspections were performed at the facility and the inspection forms had a category for ceiling defects. The form dated June 23, 1998 did not list any defects with the ceiling in the shower (Ex. 5) and on July 10, 1998, an inspection of the ceiling indicated that, while there were some rust spots on the brackets surrounding the tiles, the brackets were intact (T:115).

Claimant argues that he can prevail on the theory of res ipsa loquitur. Before a case may be submitted on the theory of res ipsa loquitur, claimant must establish: (1) the event must be of a kind which ordinarily does not occur in the absence of negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the claimant (Corcoran v Banner Super Market, 19 NY2d 425, 430). Claimant failed to establish the last two elements. Defendant's control of the shower area was not sufficiently exclusive "to fairly rule out the chance that the defect *** was caused by some agency other than defendant negligence" (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 228). Claimant's proof did not adequately refute the possibility that the ceiling tile had been tampered with by another inmate (see, Ebanks v New York City Tr. Auth., 70 NY2d 621, 623 [the proof did not refute possibility that the defect was caused by a member of the public either through an act of vandalism or otherwise]; Thompson v Pizza Hut of Am., 262 AD2d 302, 303 [plaintiff failed to establish defendant had sufficient exclusivity of control of lavatory door]). Rather, "the evidence is equally consistent with a finding that the [claimant] or his [fellow inmates] could have disturbed the [ceiling] panel, causing it to fall" (Giordano v Toys "R" Us, 276 AD2d 669; see, Savio v State of New York, 268 AD2d 907 [ample support in the record that other inmates had access to the offending area prior to claimant's accident]). Thus, res ipsa loquitur is not applicable in the instant case.
In any event, even if applicable, the doctrine of
res ipsa loquitur merely creates a premissible inference of negligence to be drawn from the circumstances of the occurrence; it does not create a presumption in favor of claimant (Dermatossian v New York City Tr. Auth., supra at 226; Shinshine Corp. v Kinney Sys., 173 AD2d 293, 294).
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 100443.


July 25, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] All references to the trial transcript shall be preceded by the letter "T."
[2] The deposition testimony of Michelle Dickson, who is now deceased, was received into evidence. She testified that she did not know how many tiles were replaced, but she believed it was one (Ex. 10, p. 15). It is not clear from the Correction Officer Duty Log whether one or more tiles were replaced (Ex. 1).