This is a timely filed claim for injuries sustained by Anna I.
. 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
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
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
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
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
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.
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
, 59 NY2d 997, 998), and it extends to the grounds of the State's
correctional facilities (see
, Montross v State of New York
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
Preston v State of New York
). 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.
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
, 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
, 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,
, 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
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.