Curtis Flowers, the Claimant herein, alleges in Claim Number 101480 that
Defendant's agents were negligent in allowing a dangerous condition to exist
causing him injury, while he was incarcerated at Sing Sing Correctional Facility
(hereafter Sing Sing). Trial of the matter was held at Sing Sing on December
Claimant testified that on or about "December 4, 1998 at approximately 9:50 am
in the B-Block housing unit at Sing Sing Claimant was proceeding on a call
out....an unescorted procedure because...[he] was not restricted or on keeplock
or anything, so...[he] was able to move by...[himself], and had made it
successfully down the first flight of stairs on the north end
was descending the next flight of stairs, when he slipped and fell on "some
debris and some unknown liquid substance." His claim indicates that during his
safe descent down the first flight of stairs he was "grabbing the handrail." He
hypothesized that the liquid substance might have been from the mess hall
Thereafter, he "was carried by some inmates to the ER," where he was given some
"preliminary medical treatment and then taken back to his cell." He asserted
that he was injured in his back, his left and right knees and elbows. There
were superficial cuts at the bottom of his elbow. The most serious injury, he
asserted, was to his left leg and knee. He stated that the pain varied, "it
would go away and come back, to this day...it's recurring in nature."
Claimant was observed to arrive in Court on crutches. He claimed their use was
as a result of the December 4, 1998 fall, but did not substantiate this through
any evidence other than his own declaration as to the reason for their
Since that date, Claimant stated, he was "restricted in terms of work,
mobility...presently somewhat limited in terms of work and mobility at his
present job assignment working in the law library at Greenhaven....Physical
sports are out." He stated he can "only sleep in a medical bed...a steel,
flat bed...[he] takes medication for...[his] back, also for...[his] knee....[he]
walks on crutches now." He participates in prescribed physical therapy.
Claimant also testified, without contradiction, that there seemed to be a
policy whereby the inmate porters were instructed not to clean the stairway
until all the activities were over, thereby generally leaving whatever material
may have fallen off a food tray, or other substances, on the stairway. On or
about November 2, 1998 Claimant sent an "Emergency Notice" to Superintendent
Charles Greiner in which he indicated, in pertinent part, at paragraph "II-B"
...[t]he B-Block North-end staircase is frequently dirty with food from inmates
transporting food pantry trays. Food is transported early in the morning,
and by the time programs are dropped later in the (A.M.) the food is
cleaned up! Additionally, the staircase is wet with liquids; for
example, milk, Kool-Aid, water, etc. Porters are not allowed to cleanup
all programs have been dropped, i.e. released so the
population (Inmates) AND staff are daily subjected to utilize the filthy stairs
and possibly poses a threat to the safety of those who have to use it while wet
or dirty. Especially since no
signs are posted or placed as to a
cautionary condition. This has also been brought to the attention of the
Executive Administrative Committee by the clerks, inmate liaison &
Grievance, but no action to correct such areas like the Q-Gallery flats, B-Block
Staircase has been taken by members of your staff.
Lastly, the official or unofficial policy that forbids inmate-porters from
cleaning such areas should be modified, in writing, this way the staircase could
be clean, safe and secure for all staff
inmates to utilize. Prior
to programs, call-outs and
recreation, the stairs should be cleaned." (emphasis in original)
[Claimant's Exhibit "1"].
The memorandum is stamped "Received November 4, 1998."
The Court has also reviewed Claimant's Exhibits "3", "4", "5" and "6",
containing some medical information. The Report of Inmate Injury form confirms
he reported a fall on the north end stair on the alleged date, and was seen by
medical personnel complaining of pain in his back and right leg, and a
superficial scratch on his left elbow. [Exhibit "4"] The nurse's note indicates
that he had full range of motion "...of all extremities." He was advised to
apply cool compresses to his elbow and knee.
An x-ray report dated March 8, 1999 indicates with respect to the right knee,
that there is "no fracture or effusion", and with respect to the right elbow,
"there is normal alignment of the bones without a fracture or effusion. There
is an olecranon spur." [Exhibit "3"].
The only other "medical" evidence consisted of inmate passes signed by medical
personnel [Exhibit 5"] and sick call requests by Claimant. [Exhibit "6"]. The
inmate passes indicate, among other things, that from November 19, 1998 through
December 31, 1998 Claimant was allowed the use of a cane; that from February 19,
1999 through March 19, 1999, Claimant was allowed a cane pass; and that from
February 19, 1999 through March 5, 1999 he was medically excused from working.
The sick call requests appear to be dated January 7, 1999 and February 5, 1999.
The first sick call form indicates that the Claimant is "still awaiting
requested x-rays of...[right] elbow. Also need to see Doctor about frequent back
pains. Need medication for pain." The February, 1999 sick call form indicates
that he was having back pain, wanted medication and that his "...leg injury also
No other witnesses testified.
As a property owner, the State is held to the same standard of care as any
Preston v State of New York
, 59 NY2d 997, 998 (1983); Basso
, 40 NY 2d 233 (1976). This property owner's duty is
applicable to the premises within prison facilities. Although it has a duty to
protect inmates from foreseeable risks of harm, the State is not the insurer of
inmate safety. Its duty is to exercise "reasonable care under the
circumstances..." [Basso v Miller
, at 241], to
protect against foreseeable risks of harm. Assuming that the State did not
create the dangerous condition, a Claimant must show by a preponderance of the
credible evidence that the State had actual or constructive notice of the
condition and failed to act reasonably to remedy it. Gordon v American
Museum of Natural History
, 67 NY2d 836,837 (1986). Creation of a dangerous
condition constitutes actual notice. Lewis v Metropolitan Transportation
., 99 AD2d 246, 249 (1st Dept. 1984), affd
, 64 NY2d 670
With respect to constructive notice, any "...defect must be
visible and apparent and it must exist for a sufficient length of time prior to
the accident to permit...[a defendant] to discover and remedy it...(citation
)." Gordon v American Museum of Natural History
, at 837.
Based upon the uncontradicted evidence presented here, the state did receive
notice of a potentially dangerous condition created by wetness and/or food on
the stairs, and had ample opportunity to cure it.
, Steel v State of New York
, Claim No. 90055, unreported
decision [Ruderman, J., Filed June 30, 1997]. Clearly, foreseeable dangerous
conditions which are not remedied within a reasonable time may establish
liability on the State's part, [ Gordon v American Museum of Natural
], assuming that proximate cause and actual
damages are proven as well.
Claimant himself provided the state with notification of a potential problem at
the north end staircase of B-Block. He asserted without contradiction that he
held the handrail as he proceeded carefully down the staircase, and that some
material caused him to fall. That his injuries, minimally described in the
Report of Inmate Injury form, were caused by the alleged fall, was also
established without rebuttal. The evidence is thus uncontradicted that the
dangerous condition was the proximate cause of claimant's injuries.
Accordingly, Defendant's motion to dismiss for failure to make a
case, upon which decision was reserved at trial is hereby
denied. With respect to damages, there is no current medical evidence linking
the alleged fall to Claimant's brief description of his
or anything else indicating some
ongoing course of treatment related to this fall. The Court finds that, on the
evidence presented, an award of two hundred dollars ($200.00) for past pain and
suffering is reasonable compensation for Claimant's
Let judgment be entered accordingly.