New York State Court of Claims

New York State Court of Claims

PICO v. THE STATE OF NEW YORK, #2001-029-052, Claim No. 95420


Visitor to correctional facility - slip and fall. No proof of dangerous condition. No liability. Dismissed.

Case Information

ANNA I. PICO and ALEXANDER A. PICO The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Law Offices of Daniel P. Buttafuoco & AssociatesBy: Evan Gewirtz, Esq., Trial Counsel
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Michael A. Zeytoonian
Third-party defendant's attorney:

Signature date:
February 8, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is a timely filed claim for injuries sustained by Anna I. Pico[1]
. The trial of this claim was bifurcated and this decision deals only with the issue of liability.
On February 6, 1996, claimant, her future daughter-in-law, Lisa Cristofaro[2]
and claimant's three year old granddaughter traveled from Long Island to Downstate Correctional Facility (hereinafter Downstate) to visit claimant's son, Gerard, an inmate. Claimant's group arrived at Downstate at approximately 10:00 a.m. and went to the front desk to sign in. They then proceeded to the property/package area and were heading to the locker area when claimant fell, injuring her hip. The parties dispute the cause of claimant's fall. Claimant testified that she slipped and fell on a slippery floor. She stated that she saw an inmate in the area using a machine waxing or buffing the floor between the locker area and property room and that she did not see any caution or warning signs in the area. Claimant stated that at the time she fell, she was holding her granddaughter's hand and that Lisa was in front of them and did not see her fall. The Prehospital Care Report (Exh. 7) prepared by the medical personnel who responded to the scene of the accident records as claimant's chief complaint that she slipped on floor and fell hurting her right hip. Claimant was brought to the Emergency Room at St. Luke's Hospital in Newburgh. Claimant's hospital record (Exh. 8) contains two two-page documents entitled "History and Physical". One was prepared by Dr. Franklin Guneratne and reports that claimant injured her right hip "when she slipped on a waxed floor" (Exh. 8, unnumbered Pg. 17); the other was prepared by Dr. Louis Nunez and records that claimant fell and injured her right hip "when she stumbled" (Exh. 8, unnumbered Pg. 18).
On cross-examination, claimant denied telling anyone that she tripped over her granddaughter or was distracted by her granddaughter. She also stated that she did not see any wax, polish or water on the tile floor at the time she fell, however, the floor was shiny.

Lisa Cristofaro testified that she did not see claimant fall. She testified that she does not remember what Mrs. Pico told her caused her to fall. She denied telling anyone at the scene that Mrs. Pico had recently fallen and had hurt her hip or that her daughter distracted Mrs. Pico causing her to fall.

Ms. Cristofaro also stated that she saw an inmate working in the area, pushing a machine, at the time of claimant's fall. She stated he was by the desk where the visitors sign in (which differed from the location described by claimant).

On cross-examination, Ms. Cristofaro testified that the distance from the sign-in desk to the lockers was about 15 to 20 feet. She stated she did not observe any wax or water on the floor that morning and she did not slip while walking from the desk to the lockers.

In summary, Ms. Cristofaro did not see the accident and remembers virtually nothing from that day.

The State presented the testimony of five witnesses on its direct case. All the witnesses testified that the cause of claimant's fall was not a slippery floor. Sergeant David Nichols, a 20 year employee of the Department of Correctional Services (hereinafter DOCS) testified that on February 6, 1996 he was a sergeant assigned to Downstate. He identified the Unusual Incident Report (Exh. A) and stated he prepared a memorandum to Lieutenant Green (Exh. D) regarding the incident; that both accurately reflect the occurrence. Both documents relate that Mrs. Pico told Sergeant Nichols that she lost her balance and fell while she was reaching for her granddaughter. She did not claim she fell because the floor was slippery. Sergeant Nichols testified that he does not recall seeing an inmate working in the area. He stated he did not see any hazards, including water, on the floor. He said that the floor was clean and shiny. On cross-examination, the witness stated that he did not see a wax machine or a buffing machine in the area where claimant fell that morning.

Sergeant Elfreda Jeffrey also testified on behalf of the State. She has been employed by DOCS for 18 years and on February 6, 1996 she was a correction officer working at Downstate, assigned to the Visitors' Lobby. Sergeant Jeffrey testified that she was on duty at the time of claimant's fall but did not see the accident. She testified that the floor was swept and mopped earlier that morning but the floor was not waxed that day. Sergeant Jeffrey does not remember seeing a buffing machine or any debris in the area at the time of claimant's fall. The floor was clean but was not wet at the time claimant fell. Sergeant Jeffrey stated that she prepared a memorandum to Sergeant Nichols regarding the incident (Exh. E) which attributes to Lisa Cristofaro the statement: "Mrs. Pico told her [Lisa] that she tripped on the little girl."

Wayne Theiss testified on behalf of the State. He has been employed by DOCS since February 1979 as a correction officer and has been assigned to Downstate since May 1979. Correction Officer (CO) Theiss stated he has been the Fire and Safety Officer at Downstate since December, 1986. He is responsible for maintaining the physical plants and fire safety, including making sure the floors of the facility are safe and free of hazards. The witness stated that the inmates maintain the floors which are mopped daily and waxed a couple of times a year. He stated that the floors are generally waxed during the evening when there is less traffic or activity in the facility.

CO Theiss testified that he arrived at the Visitors' Lobby to find claimant sitting on the floor and it was obvious she had fallen. He stated he looked around to see if there were any hazards which could have caused her to fall and did not see any. He stated that the floor was dry when he arrived (see Exh. B).

Anne S. Eckert also testified on behalf of the defendant. Ms. Eckert testified that she has been employed by DOCS as a nurse for 20 years and has worked at Downstate for the entire period. She stated that she has been the Nurse Administrator at Downstate for the last 10 years.

Ms. Eckert testified that on February 6, 1996, in response to a call that a visitor had fallen, she went to the Visitors' Lobby where she encountered claimant sitting on the floor. Ms. Eckert prepared a memorandum to Lieutenant Green regarding the incident (Exh. G) which records that, in response to an inquiry, Mrs. Pico "explained she had fallen. I [Nurse Eckert] understood her to say it had happened as she tried to take hold of her granddaughter's hand. She also stated that she had fallen before, a fact confirmed by her daughter-in-law" (Exh. G).

Ms. Eckert stated that she looked around the area and did not notice water on the floor or anything unusual. She stated that she did not have a problem walking on the floor in the Visitors' Lobby that day.

The final State's witness to testify was Sergeant Donald Wagtowicz, a 20 year employee of DOCS. The witness stated that on February 6, 1996 he was a correction officer working in the Visitors' Room at Downstate. He stated that this is the area where the visitors actually meet the inmate and is separate from the Visitors' Lobby. Sergeant Wagtowicz stated he did not witness the incident, but heard of it. While standing about 15 to 20 feet away from the area where Lisa met with Inmate Pico, he heard Lisa telling the inmate his mother had fallen in the lobby and the inmate wanting to know why his mother keeps falling. Lisa responded she didn't know and that the last time Mrs. Pico had fallen she had injured her hip (see Exh. C).

The standard of care that applies to the State in its capacity as a landowner is the same standard of care that applies to private citizens who are landowners (
Miller v State of New York, 62 NY2d 506, 511; Preston v State of New York, 59 NY2d 997, 998), and it extends to the grounds of the State's correctional facilities (see, Montross v State of New York, 219 AD2d 845; Bowers v State of New York, 241 AD2d 760). The State must act as a reasonable person in maintaining its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injuries that might result, and the burden of avoiding the risk (Miller v State of New York, supra at 513; Preston v State of New York, supra). However, the State is not an insurer of the safety of its premises, and negligence cannot be inferred solely from the happening of an accident (Condon v State of New York, 193 AD2d 874). The State is responsible in the operations of its institutions only for hazards reasonably foreseen and risks reasonably perceived (Flaherty v State of New York, 296 NY 342, 346). Therefore, to impose liability upon the State as an owner of property, a claimant must establish that a hazardous condition existed, that the State either created the condition or had actual or constructive notice of it, but failed to take reasonable steps to eliminate the hazard (Miller v City of Syracuse, 258 AD2d 947, 947-948). "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). "It is well settled that the fact that a floor is slippery by reason of its smoothness or polish, in the absence of any proof of the negligent application of wax or polish, does not give rise to a cause of action, or an inference of negligence" (Pagan v Local 23-25 International Ladies Garment Workers Union, 234 AD2d 37, 38). The "inherently slippery" condition of a terrazzo floor will not support a recovery in a slip and fall case absent proof of the negligent application of wax or polish to the floor (Duffy v Universal Maintenance Corp., 227 AD2d 238, 239). Evidence of a negligent stripping and waxing of a floor must be by an expert witness with special expertise in the area of floor maintenance (Pizzi v Bradlee's Division of Stop & Shop, Inc., 172 AD2d 504, 506).
As the trier of the law and facts, the resolution of the credibility of the respective witnesses is within the province of this Court (
Raynor v State of New York, 98 AD2d 865). Based upon the Court's observation of the respective witnesses, their demeanor at trial and the contemporaneous documentary evidence prepared by the witnesses (see Exhs. A, B, C, D, E and G), as well as the notation in the hospital record (Exh. 8, unnumbered Pg. 18) by Dr. Nunez, the Court finds that the testimony of claimant as to the causation of the claimant's fall is not credible. The claimant stated she fell because the floor was slippery. Ms. Cristofaro testified she did not see claimant fall and did not remember what claimant told her caused her to fall. The documentary evidence and testimony of the State's employees is consistent in asserting that claimant said she tripped or lost her balance while reaching for her granddaughter causing her to fall. The Court finds the testimony of the State's witnesses and documentary evidence to credibly memorialize the cause of Mrs. Pico's fall.
Further, the Court does not find credible the testimony of claimant and Ms. Cristofaro that an inmate was in the lobby area buffing or waxing the floor. Mrs. Pico testified the inmate was in the area in front of where she was walking while Ms. Cristofaro testified he was in the area by the sign-in desk, so at the time claimant fell, this alleged inmate would have been behind claimant. The Court found credible the testimony of CO Theiss, the facility Fire and Safety Officer, that floors are waxed in the evening when there is less activity. The other witnesses who testified at trial were unanimous in stating that there was no one buffing or waxing the floor at the time of claimant's fall. In any event, claimant did not offer any testimony from a floor maintenance expert to establish that any wax or polish was negligently applied to the floor (see,
Pizzi v Bradlee's Division of Stop & Shop, Inc., 172 AD2d 504, 506 supra).
The Court finds that claimant has failed to establish by a preponderance of the credible evidence a dangerous condition. Even if we were to accept claimant's testimony that the floor was slippery, based upon the case law cited above, that is not enough to establish a case of negligence (
Duffy v Universal Maintenance Corp., 227 AD2d 238, supra). Claimant had the burden of offering expert testimony upon her theory of negligent waxing. This she failed to do (Pizzi v Bradlee's Division of Stop & Shop, Inc., 172 AD2d 504, 506, supra).
The State's motion to dismiss made at the conclusion of trial, upon which the Court reserved decision, is now granted and the claim is hereby dismissed. All other motions made at trial, upon which the Court reserved decision, are now denied. The Clerk of the Court is directed to enter judgment accordingly.

February 8, 2001
White Plains, New York

Judge of the Court of Claims

[1] As the claim of Alexander A. Pico is derivative in nature, all references to claimant will be to Anna I. Pico unless otherwise indicated.
[2] At the time of the incident, Ms. Cristofaro was engaged to claimant's son, Gerard. By the time of trial, they were married. However, for ease of reference Lisa Cristofaro Pico was referred to at trial as Ms. Cristofaro or Lisa.