THOMAS v. THE STATE OF NEW YORK, #2003-016-058 , Claim No. 92541
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
ALAN C. MARIN
Aliano, Aliano & Aliano, Esqs. By: Christine Y. Edwards Neumann, Esq., of counsel
Eliot Spitzer, Attorney GeneralBy: Michele M. Walls, AAG
August 4, 2003
See also (multicaptioned
This is the decision following the trial on liability of the claim of Brenda
Thomas, which arose from her slip and fall in the cafeteria of Bayview
As of the date of her accident, July 26, 1994, Ms. Thomas had been incarcerated
at Bayview, which is located on West 20th Street in Manhattan, for nearly three
months, and was assigned to a unit on the seventh floor.
On that day she had gone down to the cafeteria for the dinner meal, which was
generally served at 5 p.m. Thomas was part of an earlier group because she was
on a special diet for high blood pressure. The cafeteria is on two levels; the
serving line is on the upper level, and inmates then must walk down five steps
to sit at one of the dozen or so tables
(cl exhs 2 & 3).
A few feet from the beginning of the serving line, but separated by a pair of
metal swinging doors, was a waiting area, which on the day in question was
controlled by a Sgt. Camanetti who would wave in two or three inmates at a time
(cl exh 2).
Thomas testified that she had waited 7 to 10 minutes before being allowed
through the metal doors. She took a tray and slid it along the triple railing
to be served hot food, which she recalled as having been a hamburger, broccoli
and potatoes. As claimant explained, the railing does not extend the length of
Yeah, a triple railing, but it's only to the first end of where the steam trays
are. The second half where you get your Kool Aid, the silverware, and whatever
kind of salad, or Jello or whatever dessert that it is, it's no bar there.
Thomas said that she then took a piece of cake and filled her cup with Kool Aid
from a large brown container, similar to a coffee dispenser.
The railing stopped at the end of the hot food. Thomas and Juanita Dudley, who
also testified at trial, described the Kool Aid, not by flavor, but by color -
- they said the beverage for that meal was red.
According to Thomas, the Kool Aid was dispensed
a few feet from the top of the stairs that leads down to the area with tables.
Claimant described what happened next:
I picked up my tray... and proceeded [toward the stairs]...I go to step down
[with] my right foot ... My foot slipped from under me ... my foot just went
from under me and I landed on the floor...on my
Claimant, who lost her grip on the tray,
landed at the bottom of the stairs, and had
"some red liquid on the bottom of my right sneaker." Her pants were wet; her
feet were tucked under her body; food from her tray had fallen on Thomas. Ms.
Dudley, Sgt. Camanetti and an inmate porter/cleaner came over to help. Thomas
estimated she sat there for 10 or 12 minutes before being taken from the
accident scene in a wheelchair.
Juanita Dudley lived on the same floor in Bayview as claimant, and they had met
a few months before the accident in connection with their attendance at the
programs. Dudley on the day in question also came down to dinner before 5 p.m.,
but in her case it was because of the job she held at a call center.
Dudley recalled that the claimant was eight to ten minutes behind her in the
From her seat on the lower level, Dudley stated that she was able to see
claimant enter from the waiting area. According to the witness, it took three or
four minutes from the time a tray was picked up until an inmate served herself a
drink. Dudley explained what she then saw and did:
I was standing behind Nancy at that point and I saw the juice on the steps. I
proceeded to call Sergeant Camanetti because we have to inform our officers of
anything we spill. I called Sergeant Camanetti. He walked around from where he
was standing and he came and he looked at the juice... We stood there ...
Sergeant Camanetti walked back to the other side of the lunch room. He went
back to the stairs ... And we stood there, so we're looking at him and that's
when he told us to go around it.
The witness indicated the three steps where the juice spilled by marking
claimant's exhibit 2. Camanetti was four or five feet from the steps and
Dudley said she saw him look at the juice. "He turned around, he saw we were
still standing there, he told us to go around the juice." Dudley proceeded down
the stairs on the left side; she could see the juice on the right side of three
steps. No officer or inmate porter was cleaning up the spill, or for that
matter for example, putting a caution sign down. She took a seat at one of the
tables: " I was facing the wall when all of a sudden I saw Brenda come flying
off the top and land about here" [at the foot of the stairs].
Dudley testified that besides Camanetti, there were two other officers in the
mess area. Officer James Davis
was positioned behind the serving line where he could also observe those who
were serving the food. Dudley also said she saw an Officer Fernandez when she
walked in, "I saw him, he was about in the opening where the doors were at...
about five feet away from [Camanetti]."
The only other witness
who appeared at trial was Antonio Vasquez; portions of Officer Davis' deposition
were read into the record.
By the time of
trial in January of 2003, both Sgt. Camanetti and Officer Fernandez were
Mr. Vasquez, at all relevant times, was Bayview's plant superintendent. He and
his crew were responsible for preventive maintenance and the operation of
equipment in the facility's building. Vasquez gave as an example that if a
stair tread in the cafeteria were worn down, his people would replace it. But
his unit did no cleaning - - that was the job of the inmates.
Vasquez stated that he walked through the cafeteria on a daily basis and had
even done so
during mealtimes. He said that beverages were set up on a table on the lower
level; that at no time was a Kool Aid dispenser on the serving line tier, but
that view of the layout was contradicted not only by Thomas and Dudley, but by
To hold a defendant liable for a fall caused by a wet floor, the proof must
show, assuming that defendant did not create the condition - - and no evidence
on that score was submitted here - - that defendant had notice of the condition
and sufficient time to remedy it. When the notice is constructive, the
condition must be visible and apparent and have existed for a sufficient period
of time pre-accident to have been discovered and remedied.
Gordon v American Museum of Natural History
, 67 NY2d 836, 501
NY2d 646 (1986); Giuffrida v Metro North Commuter Railroad Company
AD2d 403, 720 NYS2d 41 (1st Dept 2001).
Dudley's testimony that she saw the Kool Aid on the steps and that claimant was
8 to 10 minutes behind her, does not under the Gordon
constructive notice. Nor was there any testimony to the effect that such was a
recurring condition. As to actual notice that the floor was wet, Dudley was a
credible witness. Among other things, there was nothing to suggest that Ms.
Dudley did not tell the truth as she recalled it.
Granted, claimant's own testimony raised doubts about the condition of the
Q. When you got into the cafeteria and you were on the service line moving
along, did you hear or observe anything with respect to a spill on those
Q. You testified earlier that you did not know what
you slipped on right after you fell down the stairs, is that correct?
In the Inmate Illness/Injury Report, Officer Fernandez reported
that "when I ask[ed] her what had happen[ed] she said she fell down the steps
leading from the serving line to the seating area" (def exh A). There was no
mention of any wet spills on the stairs. Sgt. Camanetti made a notation to the
Report that he was also present and, "The steps were dry"
In any event, I find by a fair preponderance of the credible evidence
that Dudley told the Sergeant about an existing spill (see PJI
Given that notice obtains, was
there sufficient time/opportunity to clean up the spill or keep traffic away
until the steps were dried?
Dudley recalled numerous instances in her year and half at Bayview when the
serving line was stopped because an inmate had dropped a tray or food had fallen
off a tray. Dudley explained that when that happened, "Everybody had to
stop...one of the officers would call one of the table tops [inmate porters] ...
to clean up ... No one was allowed to walk by it until it was dry, so we'd have
to stand there and wait for it to dry ...they would fan it with the wet sign
until it dried in order for us to continue walking." She went on to say that
she had never seen the wet sign, a yellow block about 18 by 12 inches, placed on
the floor as a warning.
However, Thomas who had been at Bayview for a shorter period than Dudley,
testified that she had never seen a line stop. But in the deposition testimony
of Officer James Davis, he stated that if anything was spilled:
"They would stop the line from moving and ask someone to clean it up before they
[would] have anybody else proceed." He also stated that any officer could call
a line stop.
Officer Davis explained that the sergeant supervised the rank and file
officers, who for their part bore more direct responsibility for the inmates.
testified that the inmates were the ones charged with mopping and cleaning, that
there was a broom closet behind the steam table ("ST" in cl exh 2) with two or
three brooms, the same number of mops, a number of buckets and a sink. The
officer went on to say that ordinarily it would be the mess hall officer, not
the sergeant, who would direct an inmate to clean up, but the sergeant would do
it if, for example, the mess hall officer was on the lower level. In sum, the
mops were probably no more than ten feet away, and Officer Davis and Ms. Dudley
concurred that line stops were not uncommon. There were a sufficient number of
officers in the cafeteria to control the inmates for the few minutes the cleanup
would have taken.
In view of the above, I conclude that defendant breached its duty to keep its
premises reasonably safe, and that this negligence was a substantial factor in
causing claimant's slip and fall of July 26, 1994 (PJI
2:90). With that
said however, the evidence is clear that Ms. Thomas was also negligent and must
share responsibility for her accident.
Thomas, who had been in Bayview for almost 3 months as of her accident, ate
three meals a day in the cafeteria. She had been there several hundred times;
presumably twice earlier that day. The only place to eat was at one of the
tables on the lower level. The stairs have one railing - - on the left side, as
one descends (cl exh 3-A). Dudley testified, and distinctly marked cl ex 2,
that it was the right side of the steps that were wet. The testimony of Dudley
and Davis indicated that line stops because of spills were common occurrences.
In this area subject to food and drink spills, claimant testified she did not
look where she was going. She said it was impossible to look down and see the
floor because she was holding her tray and could not hold the railing at the
same time; yet her own witness, Dudley, testified that she held onto both the
railing and her tray. From the testimony and the photographs in evidence (cl
exh 3), the edges of the steps were surfaced with slip-resistant treads.
Moreover, claimant could point to no prior similar accidents on the
The steps were dark in color
; the spill was a red liquid. Dudley, who was on the way to eat her meal, had
no problem noticing the spill. This was a condition that would have been
noticeable to claimant had she been reasonably observant. That a dangerous
condition is readily observable goes to comparative negligence and does not
negate the duty of an owner to keep its premises reasonably safe (as
distinguished from its duty to warn).
Claimant must therefore bear a substantial portion of the fault, specifically
In view of the foregoing, I find the defendant to be
thirty-three and one/third(33 1/3)% liable
for the slip and fall of
Brenda Thomas on July 26, 1994 and any injuries resulting therefrom. Motions
which have not previously been ruled upon are hereby denied. A trial on the
matter of damages will be scheduled by the Court.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY
August 4, 2003
HON. ALAN C. MARIN
Judge of the Court of Claims
On cl exh 2, which is entitled Cafeteria Plan
View, "WA" was intended to signify the waiting area.
Strictly speaking, "on my knees" was a
complete sentence; the first word was capitalized in the transcript. The format
"[o]n my knees" will not be used in this decision.
Indicated on claimant's exhibit 2 with
The entire transcript of Davis' deposition was
submitted as part of claimant's post-trial brief, but inasmuch as it was not
offered into evidence at trial, I have not referred to those parts of his
deposition that are only available in the post-trial submission.
It is unnecessary therefore to reach the
defendant's contention (Brief, page 6) that Sgt. Camanetti does not have
speaking authority, per Loschiavo v Port Authority of New York and New
, 58 NY2d 1040, 462 NYS2d 440 (1983), regarding Dudley's testimony
that he had said "go around it."
 Gaffney v Port Authority of New York and
, 301 AD2d 424, 753 NYS2d 808 (1st Dept 2003); Spannagel v
State of New York
, 298 AD2d 687, 748 NYS2d 421 (3d Dept 2002).