Trial of this matter was held on May 14, 2001 to determine the State's
liability for personal injuries allegedly sustained by this pro se claimant when
she slipped and fell on January 1, 1999 while visiting a relative at the Ulster
Correctional Facility at Napanoch, New York.
Claimant's proof at trial consisted solely of her own testimony in which it was
alleged that on January 1, 1999 she, along with her husband and infant daughter,
traveled from their home in Loch Sheldrake, New York to visit claimant's brother
who was incarcerated at the Ulster Correctional Facility. According to the
claimant, they left home at approximately 9:30 a.m. in clear weather and
arrived at the facility, where it was snowing, about one-half hour later. Upon
her arrival claimant passed through a metal detector and was taken to a separate
building containing lockers to store her possessions during the visit. She
testified that from the locker area one passed through a gate and then through
another door to the visiting room which was located in another building. After
arriving at the visiting area claimant realized that she had forgotten the
visitor's slip containing her brother's inmate identification number and she
returned to the locker area to retrieve it. She testified that she made the
trip alone and was returning to the visiting area when her unwitnessed accident
Claimant testified that she opened the door to the visiting room building,
entered and took approximately three steps before falling. She stated that she
tried to prevent the fall and in doing so struck her right elbow. She alleged
further that she noticed water on the floor and told the two correction officers
on duty in the visiting room that they should put down a rug.
Claimant described the water as not a large puddle but as wetness in various
areas in front of the entry door, perhaps the equivalent of an 8oz glass of
water. She testified that she did not see the water and that the facility's
floor was polished and shiny. After the fall claimant visited with her brother
but alleged that she was in pain while doing so. She acknowledged that the
correction officers she informed about the incident offered to have her see the
correctional facility nurse but that she declined to do so. She testified that
following the visit she retrieved her coat from the locker area and went
straight to the hospital where X rays were taken, after which she was given pain
medication and discharged.
On cross-examination claimant stated that she was at the facility for
approximately 35-40 minutes prior to her fall and that her visit lasted about 35
minutes. Claimant was unsure what time she left the facility. She stated that
there was snow on the walkway between the locker room building and the visiting
room building but could not recall if the walkway had been shoveled.
On re-direct examination claimant testified that she saw a yellow caution sign
and a rug which had been placed in the area where she fell. Claimant offered
photographs of the area reportedly taken by her in March, 2001 (Exhibits 1-4)
which were received without objection. Claimant then rested.
The Court reserved decision on the defendant's motion to dismiss the claim
based upon discrepancies in claimant's testimony as to the time of the accident
(the claim alleged the accident occurred at 3:00 p.m. whereas claimant's trial
testimony places it much earlier in the day) and as to whether or not it was
snowing when she fell, and upon the claimant's failure to prove that the
defendant had actual or constructive notice of the alleged dangerous
The State called Charles Weeden, a 19 year DOCS employee who was the watch
commander at the Ulster Correctional Facility on January 1, 1999. He testified
that he received a call from a correction officer assigned to the visiting room
regarding a visitor who slipped and fell on water on the visiting room floor.
The witness testified that he instructed the correction officer to inspect the
area and was informed that there was no water on the floor. He was sent a memo
to that effect by the officer (Exhibit B). Weeden further testified that he
made entries in the log book (Exhibit A) including one which indicated that a
female visitor stated that she had slipped on water while entering the visiting
room. The entry identified the officer directed to check the area as K. Frantz.
The witness stated that on January 1, 1999 visiting hours at the facility began
at 8:30 a.m. and ended at 2:30 p.m. He further indicated that no snow fell at
the facility that day and noted that the log book entry (Exhibit A) reflected
that the weather was clear.
On cross-examination Weeden testified that he did not know if a rug was placed
in front of the visiting room door on the date of the incident but recalled
instructing staff to put yellow caution signs in front of the door if the area
The State also called correction officer Kimberly Frantz who testified that she
had been employed by DOCS for 2 years on the date of the incident and was
working in the visitor's room on January 1, 1999. She recalled claimant
entering the room around 12:30 p.m. and stating that she had "almost fallen"
outside the visiting room but caught herself on the wall. The witness stated
that she checked the area outside the door and that there was no water on the
floor. Frantz testified that she reported the incident to watch commander
Weeden who advised her to double check the area and to put down a rug or caution
signs if the floor was wet. The witness testified that no water was found upon
rechecking the area but she placed a wet floor sign there "just as a
precautionary measure." She acknowledged that she wrote a memo to Weeden
regarding the reported incident (Exhibit B). The witness stated that there were
approximately 100 visitors that day and no other complaints regarding a wet
floor were made. On cross-examination Officer Frantz stated that she did not
know how quickly after receiving claimant's complaint she checked the area and
that she did not recall putting down the rug.
The defendant offered in evidence as Exhibit D climatological data from the
National Oceanic and Atmospheric Administration showing snowfall amounts for
Ellenville for the period December 16-31, 1998 and temperatures and snowfall
amounts for Ellenville for the period January 1–15, 1999. This data was
received in evidence without objection and indicates no measurable snow fall on
January 1, 1999. The State recalled Charles Weeden who testified that
Ellenville is located 2-3 miles from the Ulster Correctional Facility.
Defendant then renewed its motion to dismiss the claim for claimant's failure to
prove a prima facie case of negligence against the State. The Court reserved
decision and now considers the State's motion.
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). 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
, 40 NY2d 233,241).
The State 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 a
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
. 88 NY2d 955). "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.
AD2d 621). According to claimant's own testimony she did not see the alleged
water on the floor prior to her fall. Thus, it cannot be found by the Court
that the defect was visible and apparent. Additionally, no proof was offered
demonstrating the length of time the condition existed prior to claimant's
accident. There is certainly no proof in this record that the condition existed
long enough to permit the facility's employees to discover and remedy it.
Absent such proof liability may not be imposed against the
Finally, it is equally well established that proof of repairs or remedial
action (i.e., placing a rug or caution signs near the door) performed subsequent
to an accident does not constitute proof of the owner's actual or constructive
notice of the condition prior to the claimant's fall. Generally, proof of
subsequent repairs is inadmissable at trial but even where such proof is
admitted it "most often is entirely irrelevant and, at best, of low probative
Caprara v Chrysler Corp.
, 52 NY2d 114, 122). The actions of the
defendant's employee in placing a caution sign or a rug near the door subsequent
to claimant's report of her fall does not establish that a dangerous condition
existed or that the State had notice of its existence and failed to remedy it
within a reasonable time prior to the accident.
The Court finds that claimant has failed to meet her burden of proving the
State's negligence by a preponderance of the credible evidence. The State's
motion to dismiss the claim made at the close of claimant's proof, which was
renewed at the conclusion of trial and on which the Court reserved decision, is
now granted and the claim is hereby dismissed. The Clerk of the Court is
directed to enter judgment accordingly.