New York State Court of Claims

New York State Court of Claims

TOLLERSON v. THE STATE OF NEW YORK, #2001-16-047, Claim No. 101976


Pro se claim in which it was alleged that prisoner tripped over cement piece in correctional facility greenhouse was dismissed after trial.

Case Information

TYSHAWN TOLLERSON The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Tyshawn Tollerson
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Barry Kaufman, AAG
Third-party defendant's attorney:

Signature date:
June 22, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the claim of Tyshawn Tollerson, in which he alleges that he tripped and fell over a "cement piece sticking out of the floor" in a greenhouse at Mid-Orange Correctional Facility. The claim was tried at Mid-Orange Correctional Facility, where claimant testified on his own behalf and defendant called correction officer Duane Sanders.

Claimant testified that on November 15, 1999, he and other work crew members went to the tool shed at Mid-Orange to collect the tools they would need for the day. He explained that the tool shed is attached to a greenhouse in which it was customary for the crew members to sit and wait after getting their tools. At some point, he went out to make coffee and when he returned to retrieve his gloves from the greenhouse, he tripped and fell over a raised piece of cement, hurting his arm, with which he tried to shield his face. He described the cement piece as something that used to hold a pole; he indicated on a picture of the greenhouse interior (defendant's exhibit A) that the cement piece was atop one of several cement partitions on the floor. A Mid-Orange "Report of Inmate Injury" indicates that claimant "tripped on walkway" and his statement on such form is that "I tripped over the cement block on floor . . ." There were no witnesses to the fall. Claimant asserts that there should have been warning signs and he filed a grievance regarding the same. See claimant's Exhibit 1.

Tollerson recalled that after the incident, officer Sanders and two inmates came and saw him on the floor and he was then rushed to the hospital. As to his injuries, the Arden Hill Hospital report dated November 15, 1999 states,
inter alia, "there is no evidence of fracture, dislocation or destructive lesion . . ." However, an Ambulatory Health Record entry two days after the incident indicates that there was a left shoulder dislocation. See claimant's exhibit 3. Claimant maintained that he should have had an MRI because although there was no fracture, it "could be ligament damage or damage to my rotator cuff . . ." Tollerson stated that after the incident, he received physical therapy and was put on light duty work.
Asked on cross-examination about problems with his left shoulder prior to this accident, claimant vigorously denied that he had had any problems with his left shoulder before his fall, noting that such problems had been with his right shoulder. His Ambulatory Health Records contain an entry for June 23, 1999
indicating that he reported for sick call with pain in his left shoulder, although an entry for July 6, 1999 states that a doctor was called for right shoulder pain. An August 6, 1999 entry indicates that an x-ray of the left shoulder was taken. Claimant took exception to such records, suggesting that references to his left shoulder were "made up."
Correction officer Duane Sanders testified that on November 15, 1999 he was assigned to supervise claimant's work crew; he had worked with claimant in the greenhouse on prior occasions. While dispensing tools that day in the tool shed, he was told by another inmate that someone had fallen in the greenhouse. Within a couple of minutes, he went to the greenhouse, and found claimant lying on the floor "waiting for me." He notified his sergeant and claimant was helped up. Sanders described claimant as lying vertically against the retainer wall in the drainage area. Sanders surmised that because claimant had been lying on the ground for several minutes before help arrived, he had fabricated the accident.

Sanders testified that there are cement partitions in the greenhouse that have been there for years and that the greenhouse dates back to the 1920's. He explained that the purpose of the cement partitions is to channel water to drains.
* * * *
A threshold issue must first be addressed here -- whether there was an unsafe or dangerous condition.
Madrid v City of New York, 42 NY2d 1039, 399 NYS2d 205 (1977); PJI 2:90. As set forth above, claimant testified that he tripped over a piece of cement which used to hold a pole atop a cement partition on the greenhouse floor. A review of the exhibit A photograph shows that it is much more likely that claimant tripped on the partition itself; the partition is substantial in height and the cement piece small relative to the partition. Moreover, claimant's own statement in the Report of Inmate Injury states that he fell over a cement block; the partitions are block shaped. In any event, however, both the partition and the cement piece which holds a pole (or water pipe, as would appear from the picture) are both design features of the greenhouse. Claimant presented no expert testimony to the effect that there was a variance from accepted engineering practice.
Even if an argument could be made that there was a dangerous condition because the cement piece no longer held a pole or water pipe,
claimant would be required to show either that the defendant created, or had actual or constructive notice of the condition which caused his accident. See, e.g., Bernard v Waldbaum, Inc., 232 AD2d 596, 597, 648 NYS2d 700, 701 (2d Dept 1996). In this case, there was no evidence presented as to when or how the pipe or pole was removed.
To the extent that claimant asserts inadequate medical care following the incident, his claim must fail as he presented no expert testimony
that accepted standards of medical care were not met. See, e.g., Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 (2d Dept 1998), lv denied 92 NY2d 814, 681 NYS2d 475 (1998).
For the foregoing reasons, IT IS ORDERED that claim no. 101976 is dismissed.


June 22, 2001
New York, New York

Judge of the Court of Claims