New York State Court of Claims

New York State Court of Claims

TAMBE v. THE STATE OF NEW YORK, #2002-005-002, Claim No. 93276


The State is liable for Claimant's fall due to a defect in a sidewalk (a raised slab) at a correctional facility where the State was on actual notice of such defect from prior complaints.

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:
Fiandach & FiandachBy: Edward L. Fiandach, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 10, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Samuel Tambe, an inmate in the care and custody of the New York State Department of Correctional Services (DOCS), was injured when he tripped and fell at the Groveland Correctional Facility (Groveland) while performing his duties. His claim alleges that the Defendant failed "to provide evenly paved sidewalk, failed to repair dangerous cracks to said sidewalk, failed to warn of dangerous cracks and conditions of said sidewalk, and allowed said sidewalk to exist in negligent, dangerous, and unsafe manner; and in general, failed to exercise care and prudence in the premises." The trial of this claim was bifurcated, and thus this decision deals solely with the issues pertaining to liability.

On October 22, 1995, at approximately 3:00 p.m., Claimant was performing his duties as a porter (general cleanup, garbage, wash and wax floors, and general maintenance) at the H Dorm. He was walking on the outside sidewalk from the dorm as he carried out a garbage bag when he tripped and fell. "My toe caught on the sidewalk itself, the part that had raised."[1]
At his deposition he stated that while he did not know the height of the sidewalk difference, he did state that his approximation was "about an inch or two." As the result of this fall he sustained personal injury.
Correction Officer Coleman was the only eyewitness to this accident and he reported "I was (just at that very moment) walking by the doorway and saw him fall. He (Tambe) complained his upper right leg hurt and when he tried to get up, he fell back down."[2]
Officer Coleman saw Tambe "tripping and kind of falling to his - - he was just falling to the ground, and he was out by the trash can at the end of the sidewalk." He also stated that "In that particular spot, I've seen people complain or heard people complain about it. Inmates have complained about it before. But like I told him, it was a heave and the thing that drops down, but I cannot say that they tripped on that particular spot." He identified Exhibits 7, 13 and 15 as photographs which substantially represent the condition of the sidewalk at the time Mr. Tambe tripped. In discussing the sidewalk deviations, he stated "... that they probably get worse due to the conditions of the New York State - - weather conditions up here. I mean, each year, they heave more and go up and down less, so as the years go on, they get worse."
Charles Coburn, a nineteen year employee in the Maintenance Department at Groveland, testified that if a complaint had been received about physical conditions such as sidewalk slab deviations at Groveland, it would have been entered in the log book, but acknowledged that the entries in the log book were for work orders submitted by the officer or staff employee. Hence, a written maintenance or work order request must first be made before it is entered in the log book. He did not find any such log entries in the log book.[3]
From the evidence before me, as well as my experience in trying claims arising in correctional facilities, it is easily inferable that inmate complaints are not written down. Here there was no written record of such complaints, and realistically, any such verbal complaints (i.e., pertaining to the sidewalk conditions) are only converted to work orders when initiated by Defendant's employees, not when raised by inmates. This is buttressed by Claimant's testimony, which I find credible, that "... certain things you could complain about, but in general, you're a prisoner, and you're – any complaint would go unheard or unnoticed."[4] Work orders cannot be written by inmates, and thus they are subject to the sole initiative of the correction officers or other employees of the Defendant.
I find that the Defendant was on actual notice of this sidewalk's elevation deviation and that the failure to repair or reconstruct it constituted a dangerous condition for those who walked upon it, especially so where one approaches the elevation difference carrying a trash bag. The absence of log book entries merely indicates that, even with the knowledge of the dangerous condition, the persons in charge did not make a written report or initiate a work order to remedy the defect.

The existence of prior complaints and actual notice extinguishes any argument that the defect was trivial in nature. In considering whether a defect consisting of a one-half inch elevation of a cement slab in the plaza area of a municipal building was nonactionable as a matter of law, the Court of Appeals held that "there is no ‘minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable" (
Trincere v County of Suffolk, 90 NY2d 976, 977) and, instead of a mechanistic disposition based exclusively on the dimension of the sidewalk defect, the question of whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case. Applying this guidance to the claim at bar persuades me that the Defendant must be held answerable in damages. Here, it has been acknowledged that there were prior complaints about the defect and raised sidewalk slab at the confluence where the perpendicular sidewalk from the dorm met the horizontal sidewalk parallel to the street. In other words the Defendant was on actual notice that this defect was more than trifling and inconsiderable (Oxford English Dictionary 3412 [Compact Ed 1971]), since the defect itself provoked the complaints, moving it outside the realm of triviality.
Where a lower court found that an alleged defect in the sidewalk of three-quarters of an inch was too trivial to be actionable and dismissed on a summary judgment motion (
McKenzie v Crossroads Arena, 291 AD2d 860), the Fourth Department recently reversed, finding that liability does not turn upon the dimensions of the alleged defect, but rather whether a particular height difference between sidewalk slabs constitutes a dangerous or defective condition, which depends upon, inter alia, the elevation, irregularity, and appearance of the defect as well as the time, place, and circumstances of the injury.
Finally, although testimony established that Claimant had walked on the subject sidewalk on many previous occasions (perhaps twice a day for six months), I decline to find that he is guilty of any culpable conduct, in part because of the circumstances of the accident and his injury, where he was performing his duty as an inmate porter carrying a bag of garbage on the sidewalk when he tripped (
McKenzie v Crossroads Arena, supra).
Thus in the claim at bar, after trial, after listening to the testimony, after viewing the exhibits, after finding that prior notice was established, and after learning the circumstances of this accident, with a deviation between the sidewalk slabs of perhaps one inch, I find the State was negligent in ignoring the defect and must be held answerable in damages.

All motions not heretofore ruled upon are now denied. The Clerk is directed to enter an interlocutory judgment, and an order scheduling a trial on damages will be forwarded under separate cover.

July 10, 2002
Rochester, New York

Judge of the Court of Claims

[1] See Exhibits 2 and 4.
[2]See Exhibit 18.
[3]See Exhibit B.
[4] Trial transcript, p 25.