New York State Court of Claims

New York State Court of Claims

POSTELL v. THE STATE OF NEW YORK, #2002-019-016, Claim No. 98114


The Court apportioned liability 40% to the State and 60% to Claimant for injuries, if any, resulting from Claimant's slip and fall in puddle of water and debris on floor at correctional facility.

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:
ZWIEBEL, BRODY & GOLD, P.C.BY: Jeffrey M. Brody, Esq., of counsel
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
July 10, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

On October 9, 1996, at approximately 5:45 p.m., Claimant Kevin Postell (hereinafter "Claimant") alleges that he slipped and fell in a puddle on the dining area floor at Woodbourne Correctional Facility due to the failure of the State of New York (hereinafter "State") to follow safety procedures and guidelines. The trial of this matter occurred on March 5, 2002, and was held in the Binghamton district. This decision addresses the issue of liability only.

On October 9, 1996, Claimant was an inmate incarcerated at Woodbourne Correctional Facility (hereinafter "Woodbourne"). On the day of the accident, Claimant was taking part in his daily routine as a cook at Woodbourne and had reported that day at 10:00 a.m. to eat an early lunch with the rest of the cooks and workers who were on the dinner shift. Claimant testified that all food preparation takes place in an area designated as the "pit".[1]
Claimant testified he typically worked from 10:00 a.m. until 6:00 p.m., and that his tasks included cooking for the inmates, general cleanup, and washing the dishes when the meals were over. Claimant explained that when mealtime was completed it was his job to store the leftovers for later use. The meal was considered complete when the last inmate came through the food line. Claimant would then transport the extra food back to the pit where it would be placed in 8-inch deep pans. Claimant would then line up approximately 10-15 of these pans on a cart and transport them to the refrigerator by passing through a gate that was controlled by the officer on duty in the kitchen. This gate was closed during the entire meal and was only opened after the meal was complete. According to Claimant these leftovers were often extremely hot requiring that he focus all of his attention on the hot food he was transporting in order to avoid getting burned from any spills.

Claimant described the proper kitchen cleanup process in sequential order as follows: the dining area should be clear of all inmates (diners and workers) in order to prevent contamination of the leftovers and to prevent accidents; leftovers were removed; workers swept the floor to remove the larger debris that could clog the floor drains; workers washed the floor using a hose during which time "wet floor" signs were to be posted; and then finally all excess water was pushed down the floor drains with a squeegee. Claimant testified that proper procedure, however, was routinely ignored. For instance, Claimant testified that kitchen workers never swept before washing the floor, but would hose the floor and squeegee the water and debris into the drain, thus skipping the sweeping step altogether. He also explained that workers were usually in a hurry to cleanup and did not always wait for everyone to vacate the area before hosing the floor.

Claimant testified that at approximately 5:45 p.m. on the day of his accident he was following his usual routine procedure of transporting the leftovers when he slipped and fell in a puddle of water and debris near a drain. He stated that as the result of his fall his shirt bottom and the back of his pants were soaked and dirty. Claimant testified that he did not notice this accumulation of water and debris while he was transporting the food due to the fact that he was focusing his attention, as was his normal practice, on the pans making sure that he did not spill the hot food on himself. Claimant testified that the workers should not have started washing the floor until he was finished removing the leftovers; swept before washing the floor; and posted "wet floor" signs. Claimant further testified that he could not get up off the floor for at least five minutes because he was in great pain. Claimant stated he went to the facility nurse immediately after his fall where he allegedly filled out an accident report. Although Claimant conceded on cross-examination that he had pre-existing knee and foot injuries prior to his accident, he indicated that he no longer suffered any pain or incapacitation as a result thereof and that those prior injuries in no way contributed to this fall.

Claimant called Robert Vines, a fellow inmate who worked in the kitchen at Woodbourne to testify on his behalf. Mr. Vines testified that he was working in the kitchen on the date of this accident and was involved with his usual duties of preparing diet trays when he heard some loud noises and turned to see Claimant on the floor. Although Mr. Vines admitted that he did not actually see Claimant fall, he did observe the floor to be wet both before and after the accident. He also recalled seeing garbage on the floor along with water. Mr. Vines also confirmed that Claimant's pants and shirt bottom were wet right after the fall. Mr. Vines corroborated Claimant's testimony that workers rarely swept debris or put up "wet floor" signs before hosing the floor.

The State called Correction Officer Baez a correction officer on duty in the kitchen area on the day of the accident, as its sole witness. Officer Baez has worked at Woodbourne for seven and a half years where his duties, for the six months preceding the accident, included the supervision of the dining area and kitchen work staff. On the day of this accident, Officer Baez indicated he was stationed at his normal location at a desk located outside the office. Officer Baez testified he saw Claimant pushing a cart towards the gate, but did not see him fall because he was putting away utensils in the office as was his normal procedure. Officer Baez did not recall seeing water on the floor prior to this accident and indicated that wet floor signs were posted that day, although he conceded that such signs get moved all the time. Officer Baez also testified about proper cleanup procedures and generally agreed with the proper kitchen procedure versus common practice as described by Claimant and Mr. Vines. More specifically, Officer Baez admitted that kitchen workers are supposed to wait for the traffic to "die down" in the dining area, then sweep the floor, and only then wash it down with a hose. Officer Baez conceded that it was common practice for some water to spill over the lip of the pit area and that "half the time the floor was wet". He also stated that it was common for excess water to spill outside the elevated pit area when the cooks tipped over the kettles, but that most water went down the drains. Officer Baez stated that he recalled Claimant complaining of old leg injuries and that he normally moved at a relatively slow pace. Officer Baez further testified that Claimant entered the office demanding that his fall be put on the record, but did not complain of any injuries. Officer Baez said that Claimant declined his offer for medical attention by the facility nurse.

The State is subject to the same duty as applies to any landowner, namely exercising reasonable care under the circumstances in order to maintain its property in a safe condition to protect the safety of persons entering upon its property. (
Preston v State of New York, 59 NY2d 997). However, while the State is under a duty to take every reasonable precaution to protect those who are in its institutions, it is not an insurer against any injuries which might occur. (Condon v State of New York, 193 AD2d 874). In order to establish liability in a slip and fall case, Claimant here must prove, by a preponderance of the credible evidence, that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; and that said dangerous condition was a proximate cause of the accident. (Dapp v Larson, 240 AD2d 918). It is well established that in order to constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover it and remedy it. (Gordon v American Museum of Natural History, 67 NY2d 836, 837). Based on the credible testimony and evidence presented at trial, the Court finds that there was an accumulation of water and debris near the drain in which Claimant fell constituting the presence of a dangerous condition.

Next, Claimant must establish that the State had either created or had actual or constructive notice of the dangerous condition: the puddle of water and debris. There was no attempt by Claimant to establish that the State had actual notice of this puddle on the date of this accident and the Court finds no evidence of such.[2]
With respect to constructive notice, however, it is well-settled that "[w]hen a landowner has actual knowledge of the tendency of a particular dangerous condition to reoccur, he is charged with constructive notice of each specific reoccurrence of that condition [citations omitted]". (Weisenthal v Pickman, 153 AD2d 849, 851). Here, this Court finds that the State was aware of the fact that inmates routinely commenced the cleanup process prematurely; skipped the sweeping step; and that excess debris and water accumulated near the drain. This Court finds that the State was specifically aware that "half the time the floor was wet." The Court also credits the testimony of Claimant and Mr. Vines that no "wet floor" signs were posted that day. Although Correction Officer Baez testified such signs were in place at the beginning of the meal, he also stated that he did not think about the signs after an initial check earlier in the day. Based upon the foregoing, the Court finds that the State had notice of the tendency of this particular dangerous condition to reoccur and is thus chargeable with constructive notice of the presence of this dangerous condition on the date of Claimant's accident.

With respect to the issue of causation, the Court found Claimant to be credible on this issue. The Court finds that the puddle of water and debris was the cause of Claimant's fall. Parenthetically, the Court notes that it found Claimant's testimony relative to his pre-existing injuries, if any, to be credible and that the State offered nothing from which this Court could find that those injuries contributed in any way to this fall.

That having been said, however, the State urges this Court to find that there was no duty to warn or remedy this dangerous condition due to Claimant's familiarity with the alleged improper cleanup procedure and the open and obvious nature of the dangerous condition in the first instance. While a landowner has no duty to warn of an open and obvious danger that can be readily observed by the use of one's senses since the condition is the warning in and of itself (
Tarricone v State of New York, 175 AD2d 308, 309, lv denied 78 NY2d 862), the Third Department has noted the additional "[r]ule that landowners, who have or should have reason to expect that persons will find it necessary to encounter the obvious danger, owe a duty of reasonable care to either warn such persons of the danger or to take other reasonable steps to protect them from it [citation omitted]". (Comeau v Wray, 241 AD2d 602, 603; Michalski v Home Depot, Inc., 225 F.3d 113, 118; Stern v Ofori-Okai, 246 AD2d 807; Vliet v Crowley Foods, 263 AD2d 941; Gudenzi-Ruess v Custom Envtl. Sys., 212 AD2d 952). Furthermore, it is well-settled that the question of whether a particular dangerous condition is indeed open and obvious is a question of fact. (Walters v County of Rennselaer, 282 AD2d 944). Here, the State was well aware that Claimant would necessarily encounter this dangerous condition on a continuing basis, but did nothing to ensure that "wet floor" signs were properly placed throughout the cleanup process or to remedy the practice of ignoring proper kitchen cleanup procedure.[3] As such, the Court finds that the State had a duty to warn Claimant of this dangerous condition or take other reasonable steps to remedy the same. Additionally, the Court is not convinced that this puddle of water and debris were necessarily open and obvious to Claimant since he testified that his responsibilities required that he focus his attention on the cart so as to prevent the leftovers from spilling and burning himself. (Thornhill v Toys "R" Us NYTEX, 183 AD2d 1071, 1073 [question whether pedestal was an open and obvious condition when viewed from behind should have been submitted to the jury]). That having been said, however, although the Court finds that Claimant certainly had an interest in preventing himself from getting burned he also had the responsibility to watch where he was going, especially in view of his previous knowledge that cleanup procedures were routinely ignored and the floor was likely to be wet.

Consequently, the Court finds liability should be apportioned 40% to the State and 60% to Claimant for the injuries, if any, Claimant sustained as a result of his fall in the dining area of the Woodbourne Correctional Facility that occurred on October 6, 1996.

The Court will contact counsel for the purposes of setting a conference call in order to schedule a damages trial.

All other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.


July 10, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Unless otherwise indicated, all quotations are from the Court's trial notes.
[2] Although, an argument can also be made that the State, through the actions of other members of the kitchen staff under the State's direct control, actually created this dangerous condition. (Washington v State of New York, 277 AD 1079, lv denied 302 NY 952).
[3] An argument can be made however, that even if the wet floor signs were properly placed, Claimant, by his own testimony, would not have seen them due to his hard focus on the pans of hot food he was transporting.