POTTS v. THE STATE OF NEW YORK, #2003-013-509, Claim No. 98734
Claimant failed to prove by a fair preponderance of the credible evidence that a
dangerous or defective condition existed in the roadway leading to the prison
mess hall or that the State had actual or constructive notice of any such
defeat, and the claim is dismissed.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
PHILIP J. PATTI
HARRY I. KATZ, P. C.BY: SAMUEL M. LAUER, ESQ.
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
October 24, 2003
See also (multicaptioned
On September 4, 1997, Elizabeth Potts, then an inmate at the Albion
Correctional Facility (Albion), was injured while walking to the mess hall at
the facility for the evening meal. She alleges that she was walking on the
walkway leading to the south entrance of the mess hall from her dormitory at
approximately 4:45 p.m., when she stepped into a hole, a pothole or a depression
in the walkway. She testified that she stepped into this depression with her
right foot, which caused her to fall forward with a great deal of weight and
pressure being placed on the pad and toes of her right foot.
Mrs. Potts recalled that when she fell, she ended up not on the pavement, but
on the grass next to the pavement. She then looked toward the area where she
had fallen and saw a hole/depression which she described as being as large as
her fist. At trial she was unable to recall if she had ever seen this hole
prior to the accident. She was helped to her feet by Correction Officer (CO)
Tyrone Sullivan. Not realizing that she had been hurt, Potts told CO Sullivan
that she was all right. She then proceeded into the mess hall where, after she
sat down to have her evening meal, her right foot began to throb and swell. She
was taken to the infirmary where she was given an Ace bandage and some ibuprofen
to manage the pain. A Report of Inmate Injury was filled out by Nurse Margaret
Erway (Exhibit D), and indicated that the accident occurred when the Claimant
was "walking & twisted [her] right ankle when [she] went from sidewalk to
grass." Claimant testified that she signed the Report of Inmate Injury without
reading it because she was unable to read script and barely able to read print,
in spite of the fact that she had received an education through the ninth grade.
A copy of this report was given to Claimant by the nurse.
Each morning over a period of approximately five days, Claimant continued to
complain of the pain in her foot and the fact that the medication she had been
given to help manage the pain was not working. She testified that she
continually asked for an x-ray to be taken of her foot because she felt that her
injury was more severe than infirmary personnel had initially thought.
Approximately three weeks later, an x-ray was taken of Claimant's foot which
revealed a fracture of the tip of the metatarsal bone. Claimant was taken to
Medina Memorial Hospital for treatment.
During Claimant's pretrial deposition (Exhibit G), she testified that the hole
into which she had stepped was three to four inches deep, three to four inches
wide, and approximately the length of her shoe. She described it as being
somewhat like a little ditch. She identified a photograph (Exhibit B) as
representing the area in which she fell, and testified that the hole was
encompassed within the larger dirt hole depicted in the discolored area of the
During trial, however, Claimant denied that the dirt hole area shown in the
photograph (Exhibit B) was the location of the hole which caused her fall. When
confronted with her deposition testimony, Mrs. Potts claimed that she could not
recall either the questions asked during her deposition, or her answers, with
respect to the location of the hole. In fact, when pressed further, she stated
that Exhibit B did not represent the area where the hole was located or the
general area of the fall.
Rodney Woolston, Maintenance Supervisor at Albion, testified on behalf of the
Defendant. At the time of the accident in 1997, he was a carpenter employed by
the Defendant at Albion Correctional Facility. He identified Exhibit B as a
photograph that was taken in front of the mess hall located at Albion. He also
testified that the discolored portion of the pavement on Exhibit B was the area
in which one of three trees was located on the date of the accident. These
trees had been removed due to damage caused by a Labor Day weekend wind storm,
but he could not remember the specific date or year of their removal.
CO Sullivan was called as a defense witness and testified that while he
recognized the Claimant, he could not recall her accident and did not fill out
any report regarding the incident.
Margaret Erway was then called by the Defendant and testified that she was a
licensed nurse employed by the State of New York at Albion. On the day of the
accident, Ms. Erway was on the evening shift, which ran from 2:00 p.m. to 10:00
p.m. She identified Exhibit D as the Report of Inmate Injury which she filled
out. While she did not specifically recall or recognize the Claimant, she
testified that a report typically is prepared whenever there is an accident, and
the patient is the source of the information she puts in the report. Ms.
Erway's practice was to ask the patient exactly what happened, to write the
explanation down on the report, and then to read the statement back to the
patient and ask if the statement as read was correct. If the statement was
correct, Ms. Erway would then ask the patient to sign the report, and Claimant
did so in this case.
Nurse Erway was shown Exhibit B and stated that she was familiar with the area
of the mess hall and dormitories depicted in the background of the photograph,
but had no familiarity with the discolored area or dirt hole located in the
center of the photograph. She recalled that there had been a very severe
windstorm in the Albion area over Labor Day weekend in 1998 which caused
significant damage to the trees in the area. She was able to recall the date of
the storm since she had taken her daughter to college for the start of her
freshman year just a short time before, and she was not home to assist in the
The State is under a duty to take every precaution to protect those who are in
its institutions. It is not, however, an insurer against any injury which might
Killeen v State of New York
, 66 NY2d 850; Condon v State of New
, 193 AD2d 874). The State's duty is to maintain its property in a
reasonably safe condition in view of the circumstances, defined by the risks
reasonably foreseen (Basso v Miller
, 40 NY2d 233). In order to prevail,
the Claimant must establish by a fair preponderance of the credible evidence the
existence of a dangerous or defective condition which the State either created
or of which it had actual or constructive notice (Byrd v State of New
, 206 AD2d 449; Reinemann v Stewart's Ice Cream Co.
, 238 AD2d
845). Actual notice is established where there is proof that the Defendant
created the dangerous or defective condition (Lewis v Metropolitan Transp.
, 99 AD2d 246, affd
64 NY2d 670). Constructive notice
can be established by evidence of an apparent and visible defect that existed
for a sufficient period of time prior to the accident to allow the State the
opportunity to discover and correct the problem (Gordon v American Museum of
, 67 NY2d 836).
Whether a dangerous or defective condition exists in the first place is
generally a question of fact that turns on the circumstances of the individual
Lamarre v Rensselaer County Plaza Assoc.
, 303 AD2d 914). An owner may
not be held liable for negligent maintenance because of the existence of a
trivial defect on a walkway, not constituting a trap or a nuisance (Sullivan
v State of New York
, 276 AD2d 989; Liebl v Metropolitan Jockey Club
10 AD2d 1006). Liability will be imposed only when the facts and circumstances
show that the defect presented an unreasonable risk of harm and had the
characteristics of a trap or nuisance (Maloid v New York State Elec. &
, 257 AD2d 712).
In her claim, Mrs. Potts alleges that she tripped in a hole, pothole or
depression (Claim, ¶22). At trial, she testified that the hole was as big
as her fist (Transcript, p. 13), while during her deposition, she described it
as being "a little ditch" as big as her size eight boot (Exhibit G, p. 21).
According to the claim, the hole was located in the walkway leading to the front
of the south entrance of the mess hall. During trial, Defendant introduced a
photograph (Exhibit B), which showed a darkened area or depression in the
roadway leading to the south entrance of the mess hall. During her deposition,
Claimant testified that the location of her fall was shown in this photograph
and that the hole which caused her fall, while not as big as the depression
depicted in the photograph, was located within the depression shown in the
photograph (Exhibit G, pp. 60-62). At trial, however, she testified that
neither the location of her fall nor the hole which caused her fall was depicted
in this photograph (Transcript, pp. 36-37). Her trial testimony in this regard
aligns more closely with the testimony of the defense witnesses to the effect
that the depression seen in the photograph (Exhibit B) was created by the
removal of a tree damaged in a storm almost a year
the Claimant's accident.
The contemporaneous Report of Inmate Injury (Exhibit D) does not help to
elucidate this claim any more than the photograph (Exhibit B) did. This report
indicates that Claimant was walking and twisted her right ankle when she "went
from sidewalk to grass" (Exhibit D). There is no mention in this report of a
hole, pothole or depression. Granted, at trial Claimant testified that she
could not read cursive (Transcript, p. 22), irrespective of her ninth grade
education (Transcript, p. 20), and merely signed this report without reading it
(Transcript, p. 15). At her deposition, however, she testified that she could
read (Exhibit G, p. 31). Significantly, Claimant was the only possible source
of the information regarding the circumstances of her accident as written in the
Report of Inmate Injury by Nurse Erway, and Claimant did sign the report.
Moreover, Claimant failed to produce at trial any witnesses or deposition
testimony from any inmate witnesses regarding the existence, size or location of
the hole into which she allegedly fell. This is all the more surprising,
considering that Claimant was headed to dinner with approximately 180 inmates
from two dorms at the time of the accident (Transcript, p. 11).
But even assuming the presence of a dangerous or defective condition, based
solely on Claimant's tentative and confusing testimony, Claimant did not produce
any credible evidence that the Defendant had actual or constructive notice of
the hole. When asked if she had seen the hole before the accident, Claimant
testified at her deposition that she did not notice the hole on the day of the
accident, but that she had noticed it "about a month before the incident maybe"
(Exhibit G, p. 22). When asked the same question at trial, she testified "I
never seen it before," and indicated "I don't remember" (Transcript, p. 13).
There was no evidence that Claimant or any other inmate had reported the hole,
assuming one existed, and no evidence of any prior accidents. Claimant's
testimony, which was neither definite nor convincing, was simply insufficient to
establish that the State had actual or constructive notice of any defect.
In summary, Claimant failed to prove by a fair preponderance of the credible
evidence that a dangerous or defective condition existed on the roadway leading
to the mess hall, or that the State had actual or constructive notice of any
dangerous or defective condition. As a result, the claim is dismissed.
Any motions not previously decided are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Rochester, New York
HON. PHILIP J. PATTI
Judge of the Court of