New York State Court of Claims

New York State Court of Claims

FAZZINO v. THE STATE OF NEW YORK, #2001-015-528, Claim No. 95812


Claim for personal injury incurred in fall in prison bathroom dismissed for failure to establish prima facie case against the State. Claimant failed to demonstrate that the State created condition or had actual or constructive notice of it and failed to remedy it. Claimant also failed to offer expert testimony tending to prove that inadequate lighting in the area was a proximate cause of his accident in light of defendant's testimony that lighting was adequate.

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):

Claimant's attorney:
Roemer, Wallens & Mineaux, LLPBy: James Kelly
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. WagnerAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 4, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this claim was bifurcated by order of the Court and the decision herein addresses only the issue of liability.

In his claim the claimant alleges that he sustained personal injuries when he slipped on a substance which resembled soap on the floor of the men's lavatory at the Eastern Correctional Facility in Napanoch, New York. Claimant testified on his own behalf and stated that in February, 1997 he was incarcerated at Eastern Correctional Facility in the East Wing of the A Group Dorm. According to the claimant, in the early morning hours of February 9, 1997 at approximately 1:30 a.m. he left his bunk and proceeded to the men's lavatory where he observed a correction officer asleep at the duty station located immediately outside the lavatory. Claimant testified that the lavatory contains two light fixtures, one located in the front portion and the other in the back. As he entered the lavatory claimant testified that the fixture in the rear was on while the light located in the front portion of the lavatory was off leaving the area dark. The bathroom is divided by fixtures and usage into two portions with that closest to the entry containing three sinks and two urinals, with three flush toilets located in the far end of the lavatory. There are also showers located close to the entry. Claimant testified that the front portion of the lavatory was dark because the light bulb had been unscrewed and that when he turned on the lights utilizing the switch near the entry to the room only the light located in the rear of the facility became illuminated. Claimant stated that on prior occasions he had observed correction officers unscrewing the light bulb to eliminate the light in the area near where the duty station is located.

Upon entering the bathroom area claimant attempted to reach the light bulb in order to screw it back into its fixture and provide light. He was unable to reach the bulb and took several steps into the darkened area where he slipped and fell, sustaining injuries. Although claimant testified that he did not see water on the floor when he fell, he stated that he noticed the floor was wet when he regained consciousness. Claimant also testified that he experienced a seizure, the nature of which was unspecified, but provided no further detail with regard to the timing and effect of the seizure relative to the happening of this event. After his fall, the claimant was assisted by the correction officer on duty and other inmates and was taken to the infirmary where he was held overnight and sent to an outside medical facility the next day.

Upon cross-examination, claimant testified that he was present for the 11:00 p.m. inmate count and then went to sleep. At approximately 1:30 a.m. he left his bunk and proceeded to the lavatory where he observed that only the rear portion of the area was illuminated while the front area was not. Despite the alleged darkness and his admitted inability to reach the bulb from the bathroom floor, claimant testified that the lightbulb was in the fixture but was loose and therefore did not illuminate the area thus preventing claimant upon his entry from observing either the urinals or sinks located in the front portion of the bathroom. Claimant did not request assistance from the correction officer on duty prior to entering the lavatory and, in response to a question, indicated that no part of his body was wet subsequent to the accident although he had testified on direct, as stated previously, that he observed water on the floor upon regaining consciousness following his fall.

On redirect the claimant testified that he did not request assistance from the correction officer on duty because the officer was asleep. Claimant rested and the defendant moved to dismiss for failure to establish a
prima facie case. Decision on the motion was reserved.
The defendant presented the testimony of Correction Officer John Bradley. Officer Bradley testified that he has been employed by the New York State Department of Correctional Services as a correction officer for eighteen years and has been stationed at Eastern Correctional Facility for sixteen years, during fifteen of which he has been assigned to the East Wing of the A Dorm. Officer Bradley was on duty on the evening and early morning of February 8 and February 9, 1997. According to Officer Bradley, twenty-one inmates were housed in the East Wing of A Dorm in February of 1997. The officer stated that "lights out" occurs at 11:10 p.m. each evening at which time the dorm area lights are shut off while the bathroom lights and inmate cube lights may remain on. Following lights out inmates are required to remain in their assigned area but are allowed to go to the lavatory without restriction. Correction Officer Bradley maintained a shift log which was admitted into evidence as Exhibit C. According to Officer Bradley at the start of each shift he performs an inmate count as well as a fire and safety check which involves a complete check of the area to insure, for example, that there is no clutter, fire extinguishers are charged, and includes a check of the bathrooms which the witness stated he performed on the evening of February 8, 1997. The officer testified that he did not notice any problem with lighting in the lavatory area during his evening check and that he did not fall asleep at any time between the beginning of his shift at 11:30 p.m. and the time of the accident. The witness denied unscrewing the lightbulb located in the front portion of the lavatory. According to Officer Bradley he observed the claimant enter the lavatory at approximately 1:30 a.m. on February 9, and heard claimant fall approximately 10 seconds thereafter. The Officer went to render assistance and observed the claimant on the floor shaking "like a fish out of water." He also observed that the claimant was cut above his eye and that mucous was emanating from his mouth. The officer stated that both bathroom lights were on and that he could see clearly in the lavatory. Upon regaining consciousness the claimant stated that he had slipped on water. The witness stated that he checked the entire floor area in response to the claimant's statement but found no water on the floor.

On cross-examination the witness stated that he would sometimes replace blown bulbs in the lavatory using a chair located approximately thirty feet from the correction officer's desk which is located immediately outside the bathroom area. The witness explained that the bathroom lights illuminate the entrance to the bathroom and the hallway immediately outside the entrance but do not shine on to the correction officer's desk which is located on a platform immediately outside the entrance to the lavatory but is separated therefrom by a partition. According to the officer the first light fixture is located approximately seven feet above the floor and four to five feet inside the lavatory entrance. The second fixture is approximately fifteen feet away from the entrance and located in the rear portion of the facility. The witness testified that he never completed a report of inmate injury or other accident report and that the claimant was taken to the infirmary by other officers who responded to the accident.

The defendant also presented the testimony of Nurse Jo Eno who is a registered nurse/nurse II and has been employed at Eastern Correctional Facility in that capacity for ten years. Nurse Eno completed the report of inmate injury dated February 9, 1997 which was admitted into evidence as Exhibit B. The report, which was communicated to Nurse Eno by the claimant via an inmate interpreter, indicates the cause of injury as "slipped in
H2O on bathroom floor and fell hitting head above (R) eye." Nurse Eno also completed an entry in claimant's ambulatory health record which was admitted without objection as Exhibit A. The entry dated February 9, 1997, and also communicated through an interpreter, indicates that the claimant was seen after slipping in water in a dark bathroom, falling and hitting his head. The entry also indicates that Correction Officer Stewart stated to the witness that no water was located on the bathroom floor but a mucousy substance was noted beside the inmate. Nurse Eno clarified that this information did not come from Correction Officer Stewart but, rather, was imparted by Correction Officer Bradley who called the witness shortly before claimant arrived at the infirmary. Nurse Eno performed neurological checks to evaluate the claimant's brain activity based upon the report of his shaking at the scene and the injury sustained to his head. Claimant's neurological signs appeared generally normal and he was thereafter admitted to the infirmary where he remained overnight and was later sent to receive outside medical treatment.
The defendant rested its case at the conclusion of Nurse Eno's testimony and renewed its motion to dismiss for failure to establish a
prima facie case.
While the State is bound to take all reasonable precautions to protect persons within its institutions, including a prison, it is not an insurer of their safety (
Davis v State of New York, 133 AD2d 982). Rather, the State is subject to the same standard applied to other landowners which requires that premises be maintained in a reasonably safe condition under the circumstances (Condon v State of New York, 193 AD2d 874). In order to impose liability in a slip and fall case there must be evidence that the defendant created the dangerous condition or had actual or constructive notice thereof (Calcagno v Big V Supermarkets, 245 AD2d 698). "To establish constructive notice, the defect must be visible and apparent, and must exist for a sufficient length of time before the accident so as to permit the defendant's employees to discover and remedy it" (Salkey v New York Racing Assn., 243 AD2d 621).
Claimant offered no testimony regarding the source of the substance he alleges was on the floor, how long the substance was present prior to his fall or whether he had observed water or any other liquid substance on the floor in that area on any occasion prior to his accident. In fact, he testified that although he did not see water on the floor prior to his fall he noticed the floor was wet when he regained consciousness. His trial testimony differs somewhat from the allegations set forth in the claim. In paragraph "C" of the unverified claim the claimant alleged that "While on the floor the claimant notice [
sic] what appeared to be a slippery substance which resembled soap." At trial, however, his testimony suggested that the substance was water. It is noteworthy that claimant did not specifically identify the substance which caused the floor to be wet nor did he describe the size, shape or condition of the wet area. On cross-examination claimant admitted that no part of his body was wet when he was taken from the accident scene to the infirmary.
Correction Officer John Bradley, who was on duty on the night of the accident, testified that although claimant, upon regaining consciousness, stated he had slipped on water no water was observed on the floor in the area of the fall.

In the recent case of
Williams v Hannaford Bros. Co., 274 AD2d 649, 650, the Appellate Division, Third Department, held that "[t]o sustain liability in this type of accident, the cause of the fall must be specific and definite, speculation and conjecture being simply insufficient (see, Maiorano v Price Chopper Operating Co., 221 AD2d 698, 699; Leary v North Shore Univ. Hosp., 218 AD2d 686, 687)."
Claimant failed to establish by a preponderance of the evidence what caused his fall. Even assuming, arguendo, that there was water on the floor at the time of claimant's fall, claimant offered no proof that the defendant caused the condition or knew of it and failed to remedy it within a reasonable time (
see, Winecki v West Seneca Post 8113, 227 AD2d 978).
The same may be said for the claimant's allegation that lighting in the area was inadequate. "It is basic that one alleging inadequate lighting must show a breach of a duty of reasonable care and that such breach was the proximate cause of the injuries (
Christoforou v Lown, 120 AD2d 386, 391). As in Christoforou, the claimant herein offered no expert testimony to rebut the defendant's testimonial evidence that the bathroom was adequately lighted both before and immediately after claimant's fall. His failure to establish a causal relationship between the allegedly dim lighting and the happening of the accident is fatal (see, Schmidt v Barstow Assoc., ____ AD2d ____, 715 NYS2d 706; Regan v Saratoga Hotel Corp., 23 AD2d 642, affd 18 NY2d 661; Gordon v New York City Tr. Auth., 267 AD2d 201). Moreover, even if the Court were to accept as true claimant's testimony that the room was inadequately lighted on the night of the incident he failed to demonstrate that defendant's employees were, in fact, either responsible for or aware of the lighting conditions on the night in question. Although claimant testified that he had previously witnessed both correction officers and inmates unscrew the light bulb near the entrance to the bathroom he did not offer any evidence tending to show when such activity occurred in relation to the happening of the incident at issue herein. No evidence demonstrating that the bulb was, in fact, unscrewed by one of defendant's employees or by someone acting under such employee's direction and control was offered. In fact, if the area was so dimly lit that he could not see the wet area on the floor it is doubtful that he could have observed the condition of the overhead bulb to determine whether it was unscrewed or whether it may have malfunctioned for some other, unrelated reason. His testimony in this regard is, therefore, viewed as too speculative to form the basis of liability against the State.
Finally, resolution of this matter ultimately rests upon issues of credibility. The claimant argues that it was common practice to unscrew the light bulb in question to prevent the light from shining on the correction officers' duty station located immediately outside the entry to the lavatory, that the light was unscrewed at the time of the incident and that Officer Bradley was asleep at the desk as claimant entered the lavatory. Conversely, Correction Officer Bradley testified that he had inspected the lavatory previously that evening and noticed no lighting problems and denied that he unscrewed the light bulb or fell asleep prior to the claimant's accident. The Court resolves the credibility issues in favor of the defendant based, primarily, upon its observations of the witnesses as they testified at trial. In addition, the photographs admitted as Exhibits E and F demonstrate that although the desk utilized by correction officers is located immediately outside and to the right of the entrance to the lavatory it is separated therefrom by a solid partition wall. It is also clear from the photographs that the desk faces away from the lavatory area. Under these circumstances the Court declines to credit the claimant's otherwise uncorroborated assertion that the light bulb in the front portion of the lavatory was unscrewed to prevent the light from infiltrating the area where the desk was located.

Absent the proof noted above, claimant has not established a
prima facie case of negligence against the defendant and the defendant's trial motion to dismiss the claim must be granted.
Let judgment be entered accordingly.

January 4, 2001
Saratoga Springs, New York

Judge of the Court of Claims