Aaron Taylor, the Claimant herein, alleges in Claim Number 100198 that he was
injured while an inmate at Fishkill Correctional Facility (hereafter Fishkill)
due to the negligence of the Defendant's agents. Trial of the matter was held
at Fishkill on February 21, 2003.
As an initial matter, the Defendant made an oral motion to dismiss the claim,
in that it states that it arose at Fishkill Correctional Facility, when Claimant
actually fell at Wyoming Correctional Facility (hereafter Wyoming). Defendant
conceded, however, that the State was not prejudiced in terms of notice under
the circumstances of this case. The Bill of Particulars clearly sets forth that
the incident occurred at Wyoming, and earlier motion practice concerning the
claim shows the State's actual knowledge of where the claim arose. Accordingly,
the motion to dismiss on this basis was withdrawn.
Claimant testified that he had surgery to his right knee on January 6, 1999,
and was still ambulating with the use of a cane per "local
as of March 4, 1999 when this incident occurred. [See
, Claimant's Exhibit
"1"]. It had been snowing since approximately 6:00 a.m. on March 4, 1999 and
Claimant was at his dorm. He asserted that based upon his prior surgery, he was
on "limitation status" whereby he would go to the library perhaps three times
per week, and the "correction officer would usually let you not go if you didn't
want to because it's a non-essential program."
At approximately 8:30 a.m. that morning Correction Officer Kibler gave Claimant
a "direct order" to go to his "program," located in a different building.
Claimant alleged that when he got outside, there was almost a foot of snow on
the ground. The walkway he had to use had just been plowed; indeed, two
correction officers were there directing the plow truck. He thought there might
be ice underneath because of prior "melts." As he proceeded along the walkway,
he "slid with [his] cane" and fell. Two inmates carried him to the facility
emergency room where he was assessed and treated.
A Report of Inmate Injury form completed by the attending nurse confirms the
incident, as well as the Claimant's contemporaneous remarks to medical
personnel that there was ice under the snow. [Claimant's Exhibit "2"]. The
Ambulatory Health Record (hereafter AHR) for that day also indicates that his
"surgical incisions" were "intact," and his knee was "stable." [Claimant's
Exhibit "3"]. The Nurse also notes a slight edema around the knee, and advised
continued ambulation with a cane or crutches. The AHR notes for March 19, 1999
state that no wheelchair is "medically indicated" and that Claimant could use
No evidence of any kind was submitted with respect to any claim of negligent
medial care or treatment, and accordingly, these causes of action, although
mentioned in the claim, are not addressed here.
No other witnesses testified and no other evidence was submitted.
Although the State has a duty to protect inmates from foreseeable risks of
harm, it is not the insurer of inmate safety. Its duty is to exercise
"reasonable care under the circumstances..." [
Basso v Miller
, 40 NY2d 233, 241 (1976)], to protect against foreseeable
risks of harm. To establish the State's liability, the Claimant must show 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
NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual
notice. Lewis v Metropolitan Transportation Auth
., 99 AD2d 246, 249 (1st
Dept 1984), affd
64 NY2d 670 (1984).
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 omitted
)." Gordon v American Museum
of Natural History
, at 837. Claimant, too, may be said to be
under a duty to see what was "readily observed by the reasonable use of one's
." Breem v Long Is. Light. Co.
AD2d 294, 295 (2d Dept 1998).
Based upon the somewhat inconclusive evidence present here, even assuming there
was a dangerous condition created by the plowing of the walkway and the alleged
existence of ice underneath the plowed snow, there has been no credible showing
that the State was aware of the condition and failed to cure it. It is only
those foreseeable dangerous conditions which are not remedied within a
reasonable time which may establish liability on the State's part, [
Gordon v American Museum of Natural History
], assuming that
proximate cause and actual damages are proven as well. In cases involving
winter conditions, even a failure to remove all ice and snow, or the existence
of ice patches, is not necessarily presumptive proof of negligence. See
Hobbs v State of New York
, 55 AD2d 710.
Here, Claimant has not convinced the Court that there was any ice in the first
place, nor has he described with sufficient particularity exactly how and where
his fall occurred. Notably, only his own self-serving testimony was submitted
in support of the contention that there was ice. No other witnesses testified
to that effect, although he indicated that correction officers were in the
Accordingly, Claimant has failed to establish by a preponderance of the
credible evidence that the State should be held liable in negligence for failing
to alleviate an allegedly dangerous condition which it created or of which it
had notice. Claim Number 100198 is hereby dismissed in its entirety.
Let Judgment be entered accordingly.