New York State Court of Claims

New York State Court of Claims

GREGORY v. THE STATE OF NEW YORK, #2003-010-018, Claim No. 102536


Inmate slip and fall dismissed.

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):

Terry Jane Ruderman
Claimant's attorney:
NISHMAN AND SAVITSKYBy: Robert Savitsky, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 30, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries he sustained on March 18, 2000[1] when he allegedly slipped and fell due to wetness on the third floor of Tappan Housing Building No. 9 and fractured his leg during his incarceration at Sing Sing Correctional Facility (Sing Sing). The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Defendant maintains that claimant's injury is not consistent with a slip and fall. In any event, defendant maintains that the area was patrolled no more than 15 minutes before the accident and there was no water on the floor. Thus, defendant had neither actual nor constructive notice and, therefore, cannot be held liable.
The third floor of Housing Building 9 was divided into two sections, Parts A and B, each consisting of four rows of cube style units for inmate sleeping quarters. A wall between the two sections was broken by an officers' station from which each side could be viewed by the officers who sat at a table with a lamp. There was a bathroom and television area in each section.
Claimant fell in a corridor[2] between the cubes and the exterior wall on Part B (Ex. T). A series of windows lined the exterior wall. Under the windows, there was a baseboard radiator on the floor. The length of the corridor was 100 feet and claimant fell near the second cube, in the area closest to the officers' station.
Claimant testified that on the evening of March 18, 2000, he had been watching television in the B side and then decided to return to his cube on the A side. At approximately 10:15 p.m., he slipped on something as he proceeded along the corridor. According to claimant, he went up in the air and, as he came down, his left ankle hit the radiator, then his right hand and buttocks hit the ground. He fractured his left leg. After he landed, claimant noticed a wet spot on the floor. Claimant did not know the nature of the substance nor could he describe the size of the spot. At his examination before trial, claimant testified that he slipped on a spot of water measuring six by six inches.
Claimant described the lighting conditions in the corridor as poor or dim. He did not see anything before he fell. The ceiling lights had been turned off for the evening at approximately 9:50 p.m. after an inmate count. After these lights were off, inmates were still permitted to move freely around the housing unit. At his examination before trial, claimant testified that, prior to March 18, 2000, he had walked along the corridor when the main overhead lights were off. He conceded that, at such time, he was able to see where he was going and, if he looked down, he could see the floor.
Correction Officer Maritza Peralta testified that on March 18, 2000, she was the first officer on the 3:00 p.m. to 11:00 p.m. shift at Tappan Unit 9-3. As First Officer, she was responsible for maintaining the logbook for the entire tour, taking the inmate count, and making security rounds. During the rounds, she walked throughout the unit and observed all the floors. At 9:40 p.m., she and
Correction Officer Joyce Henry-Worthen conducted an inmate count. Peralta noted that the floor was clean and free of any debris, water, or other liquid. The logbook revealed that a security round was thereafter completed at 10:02 p.m. Peralta turned the main lights off at approximately 10:10 p.m. Both she and Henry-Worthen were seated at the officers' station, when at 10:15 p.m., Peralta heard a thump and proceeded to the corridor. The ceiling lights were off, but the floor was still visible because light came from the inmates' cubes, the officers' desk, and the perimeter light. Peralta observed specks of clean, undisturbed water in front of claimant, but claimant's shoes and clothes were not wet.
Correction Officer Joyce Henry-Worthen testified that she was the resource officer on the night of
claimant's accident. She worked throughout the facility and her responsibilities included conducting security rounds and assisting with the inmate count. One of the purposes of the rounds was to check the floor for obstructions. Henry-Worthen recalled that she participated in the inmate count at 9:40 p.m. and then did a security round at 10:02 p.m. This was reflected in the logbook (Ex. V). She checked the corridor on both occasions and did not observe anything on the floor. Henry-Worthen testified that the ceiling lights had been turned off at approximately 10:10 p.m., after the security round. Even without the overhead lights, however, the corridor remained illuminated from the lamp on the officers' desk, lights in the inmate cubes, and a perimeter light on a pole outside the window. After she completed the security round, she returned to the officers' station at approximately 10:12 p.m. Two to three minutes later, she heard a thump. She responded to the area and saw claimant on the floor. During the period that she was seated at the officers' station, she had observed claimant moving quickly from the A to the B side. She did not see any other inmate during that time.
Henry-Worthen approached claimant on the floor, the ceiling lights were still off. She noticed a small spill of water next to claimant's leg. She described the puddle as five inches round without a trail. Henry-Worthen characterized the lighting conditions in the corridor as very visible, with light from the perimeter light, the inmates' cubes, and the correction officers' desk. She noted that the perimeter light was very bright and illuminated the whole corridor.
Sergeant Mark Royce, the area supervisor on the night of
claimant's accident, testified that he responded to the unit shortly after 10:18 p.m. and observed claimant on the floor with a small, five inch, intact, puddle of water behind his shoulders and back. Royce did not see any water on the cube wall near the radiator. Claimant's shoes and clothes were dry and the water was intact without any skid marks or indications that someone had stepped in the water (T:285, 304).[3] Royce suspected that claimant had placed the water on the floor, however Royce could not substantiate this theory with any evidence nor could he find any witnesses to the accident. Royce took photographs of claimant and spoke with the correction officers on duty. Royce did not observe any water from the radiator.
After his investigation, Royce concluded that
claimant's incident was "accidentle [sic] in nature" (Ex. 5) since there did not appear to have been any assault. Royce never contacted the Sing Sing Fire and Safety Officer, who works the day shift Monday to Friday. Instead, Royce conducted his own investigation, collected statements from the correction officers on duty, and forwarded a packet of documents to the watch commander.
Royce characterized the lighting in the corridor, after the ceiling lights were turned off, as adequate for walking around. He testified that the perimeter light, which was a bright flood light, was 100 yards from the building. Royce maintained that the light shines through the windows and off the floor. He also stated that there was some light from the lamp on the officers' station and the window on the door leading to the emergency stairwell at the end of the corridor.

Correction Officer Thomas May testified that on March 18, 2000, he was the first officer on Tappan Unit 9-3 during the 7:00 a.m. to 3:00 p.m. shift and, at the request of Sergeant Robles, commenced an investigation of
claimant's accident. May questioned inmate porter Tatum. May testified that he had walked along the corridor after the main lights were turned off and had been able to see the floor clearly. He stated that the perimeter light was bright and 50 to 60 yards from the windows.
Correction Officer Kathy Wells, a red dot officer, testified that the ceiling lights had been turned on before she responded to the scene. C
laimant indicated to Wells that he had fallen, but he did not mention the presence of any liquid at that time. It was not until after Royce reached the scene that Wells heard any mention of water. Only then did Wells observe a small four inch, perfectly round, puddle. Wells was holding claimant's sneaker and noted that neither it, nor claimant's clothing, was wet.
Wells testified that she walked through the unit after the ceiling lights were turned off and characterized the visibility as adequate. She described the difference as between a 40 and 100 watt bulb and noted that you could see the floor. She also maintained that the perimeter light illuminated the corridor. Wells conceded that there were shadows on the floor next to the windows, but the floor was still visible.

Nurse Anne B. Coughlin testified that she responded to the corridor after
claimant's fall and observed that the floor was dry, except for a puddle located above claimant's shoulder and measuring approximately six inches by one foot. Neither claimant's pants nor his shoes were wet and there were no streaks from the puddle nor scattered drops. The water was intact (T:375).
Sergeant Lawrence Phipps testified that he has been employed by DOCS for 22 years and has been the facility housekeeping sergeant at Sing Sing since 1989. In his current position, Phipps is responsible for the overall housekeeping and maintenance of the facility. He testified that the
corridor flooring was a vinyl tile that had been treated with a water based solvent that makes the floor less slippery when wet. The floor was cleaned twice daily by inmate porters. The last cleaning was routinely completed between 6:00 p.m. and 9:00 p.m. and then inspected by the unit housing officer.
Bruce Carver testified that he has been the plant supervisor at Sing Sing for seven and a half years. He noted that the baseboard heating unit under the window was a possible water source. There were no records in the files of any maintenance problems for the radiator in the year prior to the accident. Carver testified that the perimeter light was a 300 watt bulb and was 145 feet from the corner of the building.

Dr. A. Robert Tantleff, a
radiologist for 30 years, offered expert testimony on behalf of defendant.[4] Tantleff explained that, as a radiologist in an emergency room, he has been routinely called upon to determine whether an x-ray is consistent with a suspected injury. Depending upon what is seen, it may be necessary to image something else to render a diagnosis. He explained, for example, that such assumptions regarding the causation of injuries are implicit in looking at films to assess battered child syndrome.
According to Tantleff,
claimant's injury was a spiral fracture that is usually caused by a rotation of the leg, rather than a direct force which would splinter the tibia. Additionally, it appeared that claimant's ankle had been restrained since the ankle was intact and would normally pop with a spiral fracture. Tantleff explained that a spiral fracture often occurs where a foot is trapped, such as when a ski boot fails to release. He also opined that it was inconsistent for claimant to have tried to break his fall with his hand and yet only sustain an injury to his leg. Tantleff concluded that claimant's injury did not occur as the result of a slip and fall on water.
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 foreseen, only for risks reasonably to be perceived" (
Flaherty v State of New York, 296 NY 342, 346) and 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, however, 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). Indeed:
"[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury."

(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7; see also Bernstein v City of New York, 69 NY2d 1020; Marchetto v State of New York, 179 AD2d 947). Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant's version of how the accident occurred was not believable and there is a lack of credible evidence to establish that claimant's injury resulted from any negligence attributable to defendant.
In order to prevail on his claim, 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).
Significantly, the evidence established that the area had been patrolled no more than 15 minutes prior to claimant's accident and no water was observed in the area (see Stefan v Monkey Bar, 273 AD2d 133 [complaint was properly dismissed where there were no complaints of wetness and floor was cleaned as necessary]; Seneglia v FPL Foods, 273 AD2d 221 [no evidence that defendant created or had either actual or constructive notice of wet floor upon which plaintiff fell]). Additionally, claimant, who was bound to see that which was there to be seen (see Johnston v State of New York, 127 AD2d 980, 981), testified that he did not see any water on the floor prior to his fall. Thus, there is no basis for finding that the floor had been wet for an appreciable length of time so as to permit defendant to rectify the condition (see Puryear v New York City Hous. Auth., 255 AD2d 138, 139 [plaintiff failed to establish that particular puddle existed for sufficient time to enable defendant to rectify]). Nor was there any evidence to establish a recurrent condition of which defendant was or should have been aware, such as water coming from the radiator (see Goberdhan v Waldbaum's Supermarket, 295 AD2d 564 [in the absence of proof as to how long the puddle of water was on the floor, there is no evidence which would permit an inference that defendants had constructive notice of the condition]). In sum, claimant failed to establish that defendant was negligent in its maintenance of the area.
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


June 30, 2003
White Plains, New York

Judge of the Court of Claims

[1] The claim incorrectly states the date of accrual as March 19, 2000. All of the evidence before the Court indicates that the actual date of accrual was March 18, 2000.
[2] The area where claimant fell was referred to as either the passageway or corridor but, for consistency, will be referred to throughout the Decision as the corridor.
[3] All pages of the trial transcript are preceded by the letter "T."
[4] The testimony was received over claimant's objection. The testimony was not received as a basis for an accident reconstruction, but for an opinion as to whether the injury was consistent with a slip and fall.