New York State Court of Claims

New York State Court of Claims

PATTERSON v. THE STATE OF NEW YORK, #2003-010-028, Claim No. 101889


Inmate slip and fall-leak was not established to be a contributing cause of wetness.

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:
BROPHY & LAUBBy: Alfred Laub, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries he sustained during his incarceration at Sing Sing Correctional Facility (Sing Sing), when on the morning of May 19, 1999, he allegedly slipped and fell on a wet spot as he walked across the A block gym floor. Claimant sustained a spiral fracture of his left femur.
Claimant maintains that he was not engaged in any sports at the time of his fall and that defendant was aware that there had been a history of leaks in the gym from the roof, windows and door. Defendant concedes that the gym was prone to leaks after a substantial amount of rain. However, defendant maintains that there had not been a substantial rain prior to claimant's accident. Defendant further maintains that claimant's injury was not caused by a slip and fall on water; rather he was injured during a basketball game. This claim was heard in a unified trial.
Claimant testified that, during the seven years prior to his accident, he was an inmate at Sing Sing and participated in recreation once or twice daily. Ninety percent of claimant's recreation time was spent playing basketball. Until 1998 or 1999, claimant's general health was good; he then learned that he had a low platelet count and was HIV infected.
Claimant stated that he had worked as a porter in the gym five days a week for three or four months. He observed leaks and water accumulation on the floor from the roof, door and windows. Claimant maintains that he complained about this condition to correction officers. From December 1998 to March or April 1999, claimant was hospitalized on an unrelated matter. After his hospitalization, he was confined to his cell on keeplock.
On the morning of May 19, 1999,
claimant went to the A block gym for the first time since December 1998. Claimant testified that he intended to socialize and play chess and was wearing Timberland boots because he did not plan to play basketball. According to claimant, there was a half court basketball game being played at each end of the gym and a handball game was in progress between the two basketball games. At claimant's examination before trial, he testified that players in the different games sometimes got in one another's way. At trial, claimant insisted that the inmates show respect for one another's activities and stayed within well delineated areas that he marked on exhibit 38.
Claimant testified that he sat on benches in front of the weight area and then walked across the floor to talk to a friend at a table on the other side of the gym. Before reaching his destination, claimant allegedly slipped on water and fell on his buttocks. He described the wet spot as a one and a half foot oval shape of unknown depth. Claimant testified that he was looking ahead as he walked and did not observe the water prior to his fall.
Claimant testified that Correction Officer Mikolajczyk assisted
claimant and asked him what had happened. Claimant answered that he slipped and fell and could not get up. Claimant denied telling Mikolajczyk, or any other correction officer, that he was playing basketball when he fell.
Claimant was transported on a stretcher to the Sing Sing infirmary. Claimant denied telling any medical personnel that he was hurt playing basketball. He also denied telling any correction officer or medical personnel that he was pushed as he walked across the gym floor.
Claimant was initially in the facility emergency room and then transported to the x-ray room, where he had a conversation with Physician Assistant Phillip Williams. Claimant also recalled speaking to a nurse in the emergency room and telling her that he slipped and fell in the gym. Between 6:30 and 7:00 p.m., claimant was transported by ambulance to St. Agnes Hospital in White Plains. He testified that he told the ambulance attendant that his injury was caused by a slip and fall. Claimant further testified that a doctor at St. Agnes asked claimant what had happened and claimant replied that he slipped and fell on the gym floor.
Correction Officer Paul Mikolajczyk testified that, on the day of the accident, he was the officer-in-charge of the A block gym.
Mikolajczyk conceded that when it rained heavily, water would come through the gym's open windows and the south exit door. In warm weather, the gym floor would be wet from condensation. Sing Sing's policy prohibited basketball games to be played on a wet gym floor; therefore the floor was dried by inmate porters.[1]
The examination before trial testimony of Correction Officer
Christopher James was received into evidence (Ex. 28) and the log book entry made by James on May 19, 1999 was also received into evidence (Ex. 20). The log book entry stated: "10:17 AM Inmate Patterson, D. #95A4145, P-49, injured his leg playing basketball. He was taken to ER. Called ER and spoke to Nurse Abdullah" (Ex. 20). According to James' EBT testimony, he never saw claimant playing basketball; rather, James made the log entry based upon information received from Correction Officer Mikolajczyk (Ex. 28, pp 17-18).[2]
Phillip Williams testified that he had been employed as a physician's assistant at Sing Sing since 1975. He treated
claimant at approximately 11:00 a.m. in the x-ray department on the day of his injury. As part of his practice of documenting a patient's complaints and history, Williams noted on claimant's Ambulatory Health Record (AHR) that claimant claimed that he had slipped on a wet floor (Ex. 37, pp. 1, 2). Williams explained that, as part of the subjective evaluation, he discusses with the patient how the accident occurred. Claimant had a low platelet count and a major hematoma on his leg.
Hadiyah Abdullah testified that on May 19, 1999, she was employed as a registered nurse in the emergency room at Sing Sing.[3]
It was her practice to ask a patient what happened and to record the answer in an Inmate Injury Report. The report she prepared for claimant noted "[f]ell while playing basketball" (Ex. K). Abdullah further testified that she would not have made that notation if claimant had said that he slipped on water. Abdullah was certain that she received the information from claimant rather than anyone else. Abdullah testified that if a correction officer relayed the information, then Abdullah would always document that fact. Abdullah explained that claimant did not sign the report because he was in excruciating pain.
Dr. Daryl Graves testified that he treated
claimant in the St. Agnes emergency room and completed an Emergency Department Record form. After speaking with claimant, Graves wrote in the History of Present Illness section that claimant was "[i]njured at B-ball game *** Apparently, he fell after being pushed" (Ex. 34, p. 46). Graves explained that he makes his own inquiry as to the cause of an injury regardless of what has been recorded by EMT personnel on the Prehospital Care Report or any nurse's notes on the Triage-Assessment-Treatment form. Graves relies on a patient's statement unless the person is in extremis, a factor that he would usually indicate.[4]
Correction Officer Paul Dawkins testified that on May 19, 1999, he was assigned to transport
claimant to St. Agnes Hospital. In preparation for the trip, Dawkins took two Polaroid photographs of claimant at Sing Sing. Dawkins had a particular recollection of the incident because claimant was unable to stand and it was the first time that Dawkins ever photographed someone lying down.[5] Dawkins recalled that he was standing next to claimant's bed at St. Agnes when claimant stated that he was walking across the gym floor during a basketball game when he was knocked down. Dawkins also heard claimant tell the x-ray technician and the doctor that he (claimant ) was knocked down while crossing the court.
Robert DeCrenza, a physical education teacher at Sing Sing, testified at his examination before trial that from January 1, 1999 to the date of the accident, he was in the A block gym approximately 40 times. On occasion, he observed water on the floor which entered under the exit doorway. He identified the source of the water as rain or melted snow (Ex. 26, pp. 23-25).

Louis Marcano testified that he has been employed as a recreation programmer at Sing Sing for 20 years. Since 1986, he has worked in the A block gym and was responsible for many entries in the A block gym logbook for the three years prior to
claimant's accident (Ex. 50). According to Marcano, since the early 1990's, there has been a problem with leaks from the roof, window and south exit door. Marcano testified that he submitted "about three" maintenance forms regarding leaks in the A block gymnasium (T:32, April 3, 2003).[6] Marcano testified that he keeps a carbon of the form as proof of whether the work was performed or not (T:31, April 3, 2003).[7] On cross-examination, Marcano testified that he was not sure if the work orders were put in prior to the date of claimant's accident (T:43, April 3, 2003). However, he stated that he did place one order on January 25, 1999 (T:43-44, April 3, 2003). Exhibits 48 and 49 indicate that a search was done for any reports requesting repairs or maintenance regarding leaks in A block gym and none were found.
On May 19, 1999, Marcano reported for work at approximately 1:00 p.m. and went to the A block gym. When he entered, he observed inmate workers completing the job of mopping the floor. He did not know when they had started the activity. In the logbook for that day, Marcano wrote "No [basketball] game due to wet floor *** Gym crowded (as usual). Gym Floor flooded" (Ex. 19). Marcano did not know the condition of the floor at 10:00 a.m., prior to
claimant's accident. He explained that during heavy downpours, water would leak from the roof, window and south door and would accumulate on the floor within 10 to 15 minutes. This did not occur during a drizzle.
Marcano also testified that there would not have been a table at the far side of the gym where
claimant said he was heading. While inmates were playing handball, that table would have been placed at the end of the gym.
Mark Kramer, a meteorologist, offered expert testimony on behalf of
claimant. Kramer correlated entries from the Sing Sing A block gym logbook with certified weather records for the Village of Dobbs Ferry on the same dates. Dobbs Ferry is approximately 10 miles from Sing Sing, which is in Ossining. On January 15 and January 18, 1999, the logbook reflects that the gym floor was "flooded" (Ex. 19). The weather records indicate that on January 14, 1999 there was .34 inches "Rain, melted snow, etc.," and 1.0 inch of snow. On January 15, 1999 there was 1.17 inches of rain. The logbook entry for March 22, 1999 indicates the "[r]oof is still [leaking] water" and the weather record states: March 21, 1999, .08 inches of rain; March 22, 1999, 1.92 inches of rain (Ex. 22a, Ex. 43). On May 19, 1999, the day of claimant's accident, the logbook reflects, "[n]o [basketball] game due to wet floor. *** Gym floor flooded" (Ex. 19). The logbook does not indicate the time period for the observed condition. There was a basketball game in progress when claimant fell. The weather records for Dobbs Ferry report a "trace" of rain on May 18, 1999 and 1.38 inches of rain fell from 6:00 p.m. on May 18, 1999 until 6:00 p.m. on May 19, 1999 (Ex. 22). Thereafter, from 6:00 p.m. on May 19, 1999 until 6:00 p.m. on May 20, 1999, 1.17 inches of rain fell. Kramer explained that the readings were reported for the time frame of 6:00 p.m. to 6:00 p.m. the following day; therefore the total amount of rain for a given date required an accounting of the previous date as well (T:106, February 6, 2003). In Kramer's opinion, the leaking and flooding correlated with rain or snow, on the day of or the day before, the flooding of the gym floor.[8]
Kramer conceded that, other than Dobbs Ferry, there were weather stations in the Westchester County Airport
, Yorktown and Pleasantville that were also in the vicinity of Sing Sing and could have been used. Yorktown, which is approximately eight to nine miles from Sing Sing, calculated its readings from 8:00 a.m. to 8:00 a.m. the following day and showed .12 inches of rain before 8:00 a.m. on May 19, 1999 and continuous rain from noon on May 19, 1999 until 8:00 a.m. on May 20, 1999 for a total of 2.28 inches of rain (Ex. 22). Kramer conceded that he could not tell, from the records of Dobbs Ferry, the timing of the rainfall.
claimant's examination before trial, he testified that the weather was fair on May 19, 1999. He did not think it had rained in the morning, but rather that it had rained that night.
Conrad Gosset, a meteorologist, testified on behalf of
defendant. Gosset utilized U.S. Department of Commerce certified weather reports for stations located in Yorktown Heights, Westchester County Airport, West Point and Dobbs Ferry (Ex. C). He testified that the distance from Ossining to any of the stations does not vary significantly. The more important distinction between the localities is the time of the readings and the ability to assess hourly breakdowns. Upon his review of the weather reports, Gossett concluded the following. On May 18, 1999, there was intermittent drizzle in Ossining that began at 10:00 a.m. and continued until 11:00 a.m. on May 19, 1999; this totaled less than .2 inches and was not heavy at any one point (T:93, February 21, 2003) and on May 19, 1999, heavier rain fell in Ossining after 11:00 a.m.
Dr. Howard Luks, a board certified orthopedic surgeon, examined
claimant at Sing Sing and offered expert testimony on his behalf. Luks is the Chief of Sports Medicine at Westchester County Medical Center and New York Medical College. In his practice, Luks treats approximately 30 to 40 femur fractures annually. He explained that different forces result in different types of fractures. In his opinion, a transverse (straight across) fracture requires the most force and a spiral fracture requires twisting and the least amount of force.
In reviewing the Sing Sing medical records, Luks noted that
claimant had reported a slip and fall on a wet floor (Ex. 37, pp. 1-2). This was consistent with the history Luks obtained. Claimant's Prehospital Care Report also noted that the "[p]t injured leg slipping on wet cement" (Ex. 41).[9] The St. Agnes Hospital Emergency Department Nursing Record Triage-Assessment-Treatment form indicated that, upon presentation in the hospital, claimant "stated he fell in the basketball court this am" (Ex. 34, p. 5). In Luks' view, a spiral fracture of the femur was consistent with a slip and fall on a wet floor. A fall, he explained, is not a simple process and always has some rotational component.
Luks conceded that a spiral fracture indicates a rotational force and if a person spins on his feet without traction, there is insufficient force necessary for this type of fracture.
Dr. A. Robert Tantleff, a board certified radiologist, testified on behalf of
defendant.[10] Tantleff stated that, in conjunction with his examination of films, he has to determine the cause of an injury. He explained that in order to have a spiral fracture, part of a limb must be fixed and force applied in the opposite direction. This type of fracture requires a tremendous amount of energy and usually results in a splinter type fracture. He explained that in an uncomplicated slip and fall, where someone is walking and there is nothing restraining the legs, "[i]t would be very unusual to have everything move mobile and free to move without restraint to come down with a spiral fracture of the femur itself" (T:156, February 20, 2003).
Tantleff opined that a spiral fracture is not consistent with the type of injury described by
claimant at his examination before trial. Claimant testified that both feet slipped out from under him. If both legs were free, there would be no force to immobilize the limb. A spiral fracture needs a restraining force and a torque operating in the opposite direction. Based upon claimant's description, Tantleff would have expected claimant to have sustained a pelvic or foot fracture, plus soft tissue injuries resulting in additional hematomas in the areas that hit the ground. The only hematoma claimant experienced was in the vicinity of his femur. Typically hematomas develop in the area of a fracture.
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 there is a lack of credible evidence to establish claimant's burden of proof (see Seneglia v FPL Foods, 273 AD2d 221 [no evidence that defendant created or had either actual or constructive notice of a wet floor upon which plaintiff fell]). Merely because there was a general awareness that the gym leaked when it rained heavily does not obviate claimant from the burden of establishing that defendant had actual or constructive notice of the particular condition which allegedly caused claimant's fall (see Kershner v Pathmark Stores, 280 AD2d 583 [proof that defendant was aware that floor became wet during rainy weather was not sufficient to establish constructive notice of particular condition that caused plaintiff's fall]). "Because a ‘general awareness' that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiff's fall *** liability could be predicated only on failure of defendants to remedy the danger presented by the liquid after actual or constructive notice of the condition" (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [citations omitted]).
Significantly, while
claimant was able to link the data from the weather reports indicating heavy rain fall in January of 1999 with the January Sing Sing logbook entries of flooding on the gym floor, claimant was not able to establish the same connection regarding claimant's accident in May. Notably, claimant's accident occurred prior to 11:00 a.m. on May 19, 1999 and the weather records indicate that it did not rain heavily prior to claimant's accident. The evidence also established that, at the time of claimant's fall, basketball was being played in the gym. The weather records indicate that the heavier rain fell after 11:00 a.m. The log book entry for May 19, 1999, which stated that the gym floor flooded and there was no basketball game due to the wetness does not indicate a time (Ex. 19). The inference may be drawn, however, that the gym floor flooded sometime after claimant's accident because basketball was being played at the time of claimant's accident and the weather records indicate that the heavier rain fell after 11:00 a.m. There was no proof, other than claimant's own self-serving testimony, that the gym floor was wet at the time of claimant's accident (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]; Stefan v Monkey Bar, 273 AD2d 133 [complaint was properly dismissed where there were no complaints of wetness and floor was cleaned as necessary]). Moreover, the Court finds that claimant's account as to how he was injured strains credulity especially in light of the testimony of Nurse Abdullah and Dr. Graves regarding their notations that claimant had indicated he was injured playing basketball. In sum, there is no basis, on the evidence presented, for finding that the floor had been wet prior to claimant's accident and that defendant failed to rectify such condition within a reasonable time (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]). Accordingly, claimant failed to establish his burden of showing that defendant was negligent and that such negligence was a proximate cause of claimant's injury.
Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


September 30, 2003
White Plains, New York

Judge of the Court of Claims

[1] Mikolajczyk's examination before trial testimony was received in evidence wherein he stated that, if there was a request for maintenance in the gym, a carbon copy would be kept in the gym and the remainder of the form would be sent to maintenance (Ex. 27, pp 43-46). Mikolajczyk, however, did not specifically testify that he had made any maintenance requests regarding leaks in the gym. Claimant seeks an adverse inference regarding defendant's failure to produce any maintenance reports filed by Mikolajczyk. Claimant's request is untimely because it was never made at trial. Moreover, the inference is unwarranted because claimant never established the existence of such records.
[2] Claimant requested an adverse inference be drawn from defendant's failure to call Correction Officer James to testify at trial. Claimant's request was not made at trial, but rather in his post-trial memorandum. The request is DENIED as untimely (see Adkins v Queens Van-Plan, 293 AD2d 503 [request for missing witness charge must be made before the close of testimony]). In any event, claimant did not make a prima facie showing that James' in-court testimony would be non-cumulative (see People v Johnson [Araind], 279 AD2d 294).
[3] Abdullah is no longer employed by defendant.
[4] Claimant was recalled to testify as a rebuttal witness. He stated that he never told the doctor in the St. Agnes emergency room how the accident happened. When specifically questioned on rebuttal whether he had previously testified on direct that he had spoken to Graves and said he slipped on water, claimant answered no.
[5] Claimant seeks an adverse inference for defendant's failure to produce the photographs of claimant. This application is DENIED as untimely.
[6] Claimant argues in his post-trial memorandum that defendant's failure to produce any of the maintenance request forms filed by Louis Marcano warrants an adverse inference against defendant or indicates spoliation. Claimant's request for an adverse inference is DENIED as untimely (see People v Johnson [Araind], 279 AD2d 294, supra [court properly denied untimely request for an adverse inference charge made at the close of trial]). Moreover, claimant has failed to show entitlement to an adverse inference (see Scaglione v Victory Mem. Hosp., 205 AD2d 520). Claimant must make a prima facie showing that, inter alia, the document in question actually exists and there is no reasonable explanation for failing to produce it (see Wilkie v New York City Health & Hosps. Corp., 274 AD2d 474).
[7] All references to the trial transcript are preceded by the letter "T" and identified by the date of the proceeding.
[8] Kramer prepared a summary of his findings (Ex. 43).
[9] This report is generally completed by ambulance personnel or emergency medical technicians. The author in this instance was not identified.
[10] Claimant's application to strike Tantleff's testimony on the ground that he was not qualified in the area of accident reconstruction and biomechanics is DENIED and his testimony shall be accorded the appropriate weight given his training and qualifications.