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,
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
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;
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 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.
, 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
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.
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.