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
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
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
It is well established that "[t]he State just as any other party...is
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
, 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
, 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
Johnson v State of New York
, 265 AD2d 652; DeLuke v State of New
, 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.
, 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
, 267 AD2d 582, lv denied 94 NY2d 761; Tarricone v State of New
, 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.