New York State Court of Claims

New York State Court of Claims

AYALA v. THE STATE OF NEW YORK, #2002-029-178, Claim No. 95531


Prisoner-Alleged claimant fell on an accumulation of tomato juice; Court finds claimant failed to establish dangerous condition or that State had notice of dangerous condition.

Case Information

AZALEA NAGLE as Administratrix of the Estate of ORLANDO AYALA
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:
Michael J. O'Connor, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 11, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This timely filed claim alleges that the State was negligent in failing to properly maintain the mess hall area at Green Haven Correctional Facility (hereinafter Green Haven) in a safe condition. The trial of this claim was bifurcated and this decision deals only with the issue of liability.

At the commencement of trial, claimant's counsel submitted to the Court a copy of Mr. Ayala's death certificate indicating he died on October 10, 2001 and a copy of the Letters of Administration issued by Surrogate's Court Dutchess County appointing Ms. Nagle as Administratrix of Mr. Ayala's Estate (see Court Exhibit 1). Pursuant to Court of Claims Act § 15, the Court substituted Ms. Nagle as Administratrix of Mr. Ayala's Estate as the claimant.

Claimant's counsel read from the transcript of Mr. Ayala's deposition which was held on July 21, 1999. At the deposition, Mr. Ayala testified that (1) he was transferred from Auburn Correctional Facility to Green Haven in 1991; (2) he worked in the mess hall of the facility since about a month after his arrival; (3) on July 3, 1996, the day of the subject accident, he was the captain of counter one in the mess hall; (4) as captain he controlled everything at his counter; (5) he had been assigned to counter one since 1994 or 1995. Mr. Ayala stated that counter three was located behind counter one and the workers for these two areas were in a common area and the inmates came along the outside of the counters to get their food. He stated that prior to his fall he did not see anyone fall in the area between counters one and three. The witness testified that he arrived for work at the mess hall at about 5:20 a.m. and that his accident occurred between 8:00 a.m. and 8:30 a.m.

Mr. Ayala stated that counter one was 10 to 12 feet long and that the counter contained milk, juice, coffee, hot water and toast for the inmates to choose from. He stated that at the time of his fall he was going to the toaster area about 15 feet from his counter to pick up three pans of toast to bring to his counter; that he was about 2½ feet from his counter facing the toasters when he fell. Claimant then stated that he had picked up the three pans of toast and was returning to the counter when he fell. He said the pans were about one foot wide by two feet long by four inches deep. He said he was not able to see the floor while carrying the pans of toast. The witness testified that he slipped and fell hurting his right arm because there was an accumulation of tomato juice on the floor; however, prior to the accident he did not see any tomato juice on the floor. He testified that there is a tomato juice dispenser located on the right side of the counter and that workers come from the kitchen and fill it with the juice.

Mr. Ayala testified that on the date of his accident when he walked from the counter to the toaster area he had nothing in his hands and was able to see that there were no spills on the floor; that it took him about six to eight minutes to go from the counter to the toast area, wait for the toast and start to walk back the 15 feet to his counter.

Claimant called inmate Richie Acosta as a witness. Mr. Acosta testified that (1) he is currently incarcerated at Fishkill Correctional Facility but that on July 3, 1996 he was housed at Green Haven and was a mess hall worker; (2) he knew decedent as they were both mess hall workers and the mess hall workers all lived in the same housing unit; (3) on the morning of July 3, 1996 a mess hall correction officer (C.O.) assigned him to work at counter two instead of his regular job because the mess hall was short workers; (4) he noticed a large spill on the floor while he was going to the kitchen area to get a bag of plastic work gloves; (5) the spill on the floor was red in color and appeared to be tomato juice and covered an area of about two feet by four feet behind counter one; (6) he told a C.O. that there was liquid on the floor by counter one and it was the witness' impression that the juice would be cleaned up; (7) he had to wait in the kitchen for about five to eight minutes for the head cook to come and open the office where the gloves were kept; (8) he also advised the cook of the liquid on the floor by counter one.

Acosta stated that as he was walking back to the serving area he saw Ayala carrying toast pans from the toaster area toward counter one; that Ayala walked onto the wet area and slipped. He said that the pans hit the counter and Ayala fell to the floor. Acosta stated he and another inmate went over to pick Ayala up. Acosta stated he is not very precise when estimating the passage of time but estimated that about 8 to 15 minutes passed from the time he saw the juice on the floor until Ayala slipped on it.

On cross-examination, Acosta testified that he was advised by the C.O. in the mess hall that he would be working at counter two that day at about 5:30 a.m. or 6:00 a.m.; that it was at that time that he went to the kitchen to get the gloves and that is when he saw the juice on the floor by counter one. He also was unable to remember if the cook he spoke to regarding the spill was a man or a woman.

On redirect examination, Acosta testified that he did not go to get the gloves until the industry workers were fed and that Ayala's accident occurred after the industry workers were fed and before the general inmate population were fed.

The deposition testimony of Sergeant (Sgt.) Vincent Guarracino was also read by claimant's counsel. At the deposition, Sgt. Guarracino testified that usually an inmate porter mops up a spill; that no one person was assigned to monitor the condition of the floor; that as soon as any C.O. in the mess hall saw a spill, an inmate porter would be told to clean it up as soon as possible.

The State called Sgt. Guarracino as a witness at trial. The witness stated he has been employed by the Department of Correctional Services for 23 years. He stated that he was working in the mess hall at Green Haven in July 1996 and had been working there since 1995. The witness testified that counter one is about 25 to 30 feet from the toaster area and that at maximum it takes about 30 seconds to walk from counter one to the toaster area.

The State owes a duty to inmates who are directed to participate in a work program during incarceration to provide a reasonably safe workplace (
Callahan v State of New York, 19 AD2d 437 affd 14 NY2d 665).
It is well established that "[t]he State just as any other responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be perceived" (
Flaherty v State of New York, 296 NY 342, 346). With respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see, Miller v State of New York, 62 NY2d 506, 513; Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241).
The State is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see,
Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874). In order to prevail a claimant must show the existence of a foreseeably dangerous condition, that the State created the condition or had either actual or constructive notice of the condition, that the State failed to remedy the condition within a reasonable time, that such condition was a proximate cause of claimant's accident, and that claimant sustained damages (see, Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955). "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).
Claimant has the burden of proving the State liable by a fair preponderance of the credible evidence (see, PJI 1:23). The trial court, in its capacity as trier of the facts, must view the witnesses and consider their statements upon direct and cross-examination in determining whether the witness is credible and the weight, if any, to be given to the evidence (see, PJI 1:8, 1:22, 1:41; see also,
Johnson v State of New York, 265 AD2d 652; DeLuke v State of New York, 169 AD2d 916). Here, the Court does not find Mr. Acosta to be a credible witness. On direct and re-direct examination, the witness stated he went to the kitchen to get the bag of work gloves about 8 to15 minutes before Mr. Ayala fell. However, on cross-examination, he stated he went to get the gloves when he was informed he was going to be working at counter two, at about 5:30 a.m. or 6:00 a.m., about 2½ to 3 hours prior to Ayala's fall. The only other witness who was asked about a substance on the floor was Mr. Ayala. He stated that he went to get the toast pans about two to three minutes before his accident and at that time he did not see any substance on the floor. Based upon the contradictory testimony regarding the presence/non-presence of the substance on the floor by counter one and Mr. Acosta's contradictory testimony regarding when he noticed the substance on the floor, the Court cannot find, by a preponderance of the credible testimony, that a dangerous condition existed or that the State created the condition or had either actual or constructive notice of its existence.
Claimant submitted into evidence copies of four accident reports in an apparent attempt to establish that the State was on notice that the mess hall floor was slippery (see Exhibits 2, 4, 5 and 12). All four reports related that an inmate slipped on a "wet floor" in either the kitchen or mess hall. The accidents occurred on February 20, 1994 (Exhibit 2); December 26, 1994 (Exhibit 4); April 16, 1995 (Exhibit 5) and February 29, 1996 (Exhibit 12). There is no indication on any of these reports that the floor was wet because, for example, it had been mopped, water had splashed on it or a foreign substance was on the floor. I cannot conclude that four accidents over an almost 2½ year period prior to the subject accident put the State on notice that the floor in the mess hall constituted a dangerous condition without some expert testimony that the floor was improperly designed or constructed and was inherently dangerous.

arguendo, the Court were to accept Acosta's testimony that the foreign substance on the floor by counter one covered an area two feet by four feet, well-established precedent mandates that there is no duty to warn of a condition that is open and obvious and can be observed readily by reasonable use of one's senses (see, e.g., Weigand v United Traction Co., 221 NY 39; Patrie v Gorton, 267 AD2d 582, lv denied 94 NY2d 761; Tarricone v State of New York, 175 AD2d 308, lv denied 78 NY2d 862).
In accordance with the foregoing, the claim is hereby dismissed. All motions made at trial, upon which the Court reserved decision, are now denied. The Clerk of the Court is directed to enter judgment accordingly.

June 11, 2002
White Plains, New York

Judge of the Court of Claims