Victor Medina, the Claimant herein, alleges in Claim Number 102009 that
Defendant's agents created a dangerous condition at Green Haven Correctional
Facility (hereafter Green Haven) where Claimant was an inmate, causing him to
slip, fall and suffer serious injury. Trial of the liability phase of this
matter was held on March 4, 2003.
Claimant testified on direct examination that on March 23, 1999, at
approximately 8:30 a.m., he was returning from breakfast in the cafeteria,
walking along the walkway of the second tier of G-Block toward his cell, when
he "slipped on something."
He had been looking forward just before he slipped when his "left foot went
straight forward, hit the cell gates and got caught there." He landed on his
"butt cheeks," observing a "puddle of water directly under [his] upper left
leg...about 6 to 8 inches in diameter." He observed a dark stain on his lower
left pant leg; and on the back of his upper left pant leg he saw
"moisture...water." Claimant testified that when correction officers came to
his assistance, he told them not to touch his leg, and responded to queries
concerning what happened by saying "I slipped in the water right
In 1999, Green Haven did not have any hot water in individual cells. Claimant
testified that every morning at approximately 7:00 a.m. assigned inmate porters
distributed hot water to those inmates who wanted it. Inmates indicated that
they wanted hot water by placing their individual buckets in front of their
cells. Porters would be admitted by a correction officer into the locked "slop
sink" area, where they would fill up a big barrel or bucket with hot water.
The big bucket was then wheeled to the individual cells for water distribution.
Claimant said that the porter would "dip a smaller bucket into the big bucket,
pass it through the cell bars, and dump hot water in the cell buckets." As the
smaller bucket was passed through, he stated that generally water would spill
over onto the floor. He stated that prior to his accident, he would see "a
little bit of water on the floor" as a result of this procedure.
On cross-examination, Claimant clarified that the puddle he slipped on was
between 12 and 16 inches in diameter, and that he had observed it as he fell.
He admitted to being "hysterical" and "screaming," but maintained that despite
being in excruciating pain caused by what turned out to be a compound fracture,
he could distinguish blood moisture on his lower pant leg from water moisture on
his upper leg, and told officers at the scene that he had slipped on water. He
stated he was "sitting right on it," and that the "majority of the water was
soaked up by my pants." He did not point out the water to the officers attending
him. He admitted to a prior injury to his left leg in the form of a bullet wound
in 1995, but stated that it was only "in the beginning" that he was unable to
participate in sports or experienced pain in that leg after the bullet wound.
As of 1998, he asserted, the left leg never "gave out."
Additionally, he conceded that prior to the accident date he himself had never
brought the daily spillage of water in the hallway to the attention of the
supervising officers. Although familiar with the grievance procedure, he had
never filed a grievance concerning this allegedly dangerous condition.
Stephen M. Ullrich, employed as a Sergeant by the New York State Department of
Correctional Services (hereafter DOCS) at Green Haven since December, 1985, also
testified. He indicated that he was the supervisor of E, F and G Housing Blocks
on March 23, 1999. He described G-Block as being 3 floors high, and housing 6
companies of inmates overall. The second floor tier has a walkway running
alongside the front of a line of 41 cells, that is approximately 4 to 6 feet
wide. The surface of the walkway is "terrazzo tile, which is a large tile made
of some kind of mixture with marble, stone and cement. The finish is smooth,
but not like glass, and is somewhat porous." As noted by Claimant, there is no
hot water in the sinks provided in the cells and, as of March, 1999, hot water
was distributed two times per day - once at approximately 6:00 a.m. by the
midnight shift porter, and then again later in the evening.
Sergeant Ullrich described a slightly different version of hot water
distribution, whereby the individual buckets were collected and brought to the
slop sink area, filled, and distributed off a wagon, but in any case he too
stated that he had observed water spilling in the process. He also stated,
however, that in the 12 years he had been at Green Haven he had observed such
spillage perhaps 50 to 100 times, and that in any case the inmate porters were
required to immediately mop up such spills. Moreover, he placed the time of
distribution an hour earlier than Claimant at 6:00 a.m.
According to Sergeant Ullrich, the only written policies concerning the
distribution of hot water appear to be a section of the job description manual
for correction officers concerning the responsibilities of those assigned to the
"midnight tour," [
, Claimant's Exhibit "9"], and an internal memorandum the witness had
not been familiar with indicating that hot water is to be distributed twice
, Claimant's Exhibit "8"]. The manual indicates that at
"0600" the correction officer, among other things, is to "let out [the] company
porter to give out hot water, [and] open company slop sink." [Claimant's Exhibit
"9"]. The internal memorandum, dated February 20, 1998, also indicates that the
hot water distribution occurs at 6:00 a.m. [Claimant's Exhibit "8"]. To his
knowledge, there were no guidelines as to how the porter was to get the water
from the slop sink to the individual buckets.
On the morning of March 23, 1999 Sergeant Ullrich was stationed in a corridor
connecting the housing units - his usual location when there was "mass movement
going on." Approximately 40 inmates would travel to and from the dining area
along the hallway in the course of a breakfast run. He heard that an inmate had
fallen and hurt his leg, and that the medical unit was notified.
When he arrived at the scene the Claimant was lying on the gallery floor with a
correction officer in attendance. Sergeant Ullrich proceeded to "lock the
gallery down," in order to conduct an investigation. He did not speak to
Claimant at the accident scene because Claimant was in "no condition to answer,
and was shouting out ‘My leg! My leg!' and appeared to be in a lot of
Prior to following the medical response team back to the medical unit, Sergeant
Ullrich surveyed the area. He saw nothing on the floor that would cause a fall.
He drew this conclusion based upon a visual inspection, as well as rubbing his
foot along the floor. He also surmised that the Claimant may have been pushed
because of the apparent lack of any reason for a fall.
At the medical unit he "figured Claimant might be more willing to talk if there
[had been] an assault in an atmosphere where other inmates couldn't hear him,"
so he "spoke to Claimant there for approximately 15-20 minutes." Describing
Claimant as more "relaxed" at the medical unit, Sergeant Ullrich asked him what
happened, and Claimant said he "slipped on a wet floor." Sergeant Ullrich also
testified that at that point, Claimant began "insisting" that the Sergeant had
"seen the wet floor," which the Sergeant denied. Sergeant Ullrich observed
Claimant's pant leg and saw blood around the shin area. He did not see any
evidence of water under Claimant or near Claimant at the scene, nor did he hear
any comments at the accident scene concerning water. After the Sergeant left
the medical unit he interviewed all the inmates who came down for breakfast and
came back that day, and no one spoke to him about water or anything concerning
Claimant's accident. Because of this lack of information, Sergeant Ullrich
continued to think that something other than a slip on water was involved.
Additionally, he himself had not observed any water on that hallway prior to
8:30 a.m. on the morning of March 23, 1999.
An internal memorandum from Sergeant Ullrich to a Lieutenant Russett dated
March 23, 1999 reiterates essentially the same information, to the effect that
Claimant fell, and upon being interviewed stated "he slipped on a wet spot on
the floor." [
, Claimant's Exhibit "3"]. The memorandum also states: "I could find
no evidence of any foul play at this time nor did the floor appear wet."
Correction Officer Bryan Anspach, assigned to taking a group to and from "chow"
to G-Block at Green Haven on the morning of March 23, 1999, also testified. He
stated that he went ahead of the inmates who were coming back to open their
cells, and to lock down another company. As he was locking down the other
company one floor above, he heard screaming and yelling from Claimant's company.
He walked across to Claimant's company, looked down and saw Claimant lying down
on the floor. After the witness called the officer in charge to send the medical
response team, he went to Claimant's location and saw Correction Officer Lambert
already next to claimant. Claimant was holding his leg. Officer Anspach
walked past them, locking the cells of all the other inmates who hadn't already
locked in. He had no conversation with Claimant, and did not notice anything
specific about Claimant's pant leg. During his walk up and down the hallway, he
did not observe any wetness or debris on the hallway floor itself, nor did he
look under the Claimant in order to be in a position to observe if there was any
water under him.
Correction Officer Mark Lambert also testified. On the morning of March 23,
1999 at "approximately 8:40 a.m." he was "on the third deck escorting 3 and 6
companies on their return from chow." When they got to the stairway, he "heard
screaming coming from 5 company, and responded to the area." He saw a person
lying on the floor, holding his leg. Blood was on the pant leg and was also
dripping on the floor. Officer Lambert kneeled on the right side of the
Claimant on one knee, and yelled out that medical attention was needed. He
conducted a visual inspection of the area, in a search for weapons. He did not
recall "anything out of the ordinary." He could not recall if Claimant told him
anything about what happened and at most spent "a couple of minutes" with
Claimant before the medical response team arrived. He did "not see any liquid in
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. Assuming that the State did not create a dangerous condition, a
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
, 67 NY2d 836, 837 (1986). Creation of a dangerous
condition constitutes actual notice. Lewis v Metropolitan Transportation
., 99 AD2d 246, 249 (1st Dept 1984), affd
64 NY2d 670 (1984);
Septoff v La Shellda Maintenance Corp
., 242 AD2d 618 (2d Dept
With respect to constructive notice, any "...defect must be
visible or apparent and it must exist for a sufficient length of time prior to
the accident to permit...[a defendant] to discover and remedy it...(citations
)." Gordon v American Museum of Natural History
at 837. Additionally, constructive notice may be established by showing a
recurring dangerous condition. See, Lowe v Spada
, 282 AD2d 815,
817 (3d Dept 2001); Galati v New York Convention Center Development
, 297 AD2d 518 (1st Dept 2002).
As an initial matter, Claimant has failed to establish by a preponderance of
the credible evidence that a dangerous condition existed.
, Moody v F.W. Woolworth Co.
, 288 AD2d 446 (2d Dept 2001). His
was the only testimony to the effect that there was water accumulation in the
hallway where he alleges he fell. Detracting from his credibility are the
claimed sizes of the puddle, and his asserted ability to distinguish water from
blood, while in a self-described "hysterical" state. With respect to the
"puddle," assuming it was the 12 inch diameter he described, that large an
amount of water would not have been completely absorbed by his pant leg as he
contended. None of the three other witnesses called - all of whom saw the
Claimant immediately after the accident - saw any water near, or under, the
Claimant. Moreover, Sergeant Ullrich did not see any water in the hallway
either before or after the Claimant's fall.
With respect to the Claimant's ability to distinguish water from blood while in
a very agitated state, again, the officers at the scene all indicated their
reluctance to even question Claimant since he was yelling in pain. It is
difficult to credit the acuity he claims under the circumstances. Moreover,
while the officers saw blood, they did not see water.
Finally, water was distributed more than an hour before Claimant's fall.
Inmates had walked without incident in the same hallway, as had officers.
Claimant's testimony cannot be credited in the absence of any other supportive
Based upon the inconclusive evidence present here, even if there was a
dangerous condition created by wetness, there has been no 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.
First, it is difficult to see how inmate porters within a correctional facility
who, the evidence established, were largely responsible for the manner in which
the hot water was distributed, while also responsible for the clean-up of any
spills, can be viewed as "agents" for the purpose of showing the State to be
liable under principles of
. But, see
, Hahne v State of New York
290 AD2d 858, 859 (3d Dept 2002).
the State through these supposed "agents" did not create the condition, it
certainly did not have notice of a dangerous condition that it failed to cure
within a reasonable time. There is simply no evidence that some occasional
spillage of hot water on the floor - which Sergeant Ullrich testified as having
witnessed perhaps 50 to100 times over a period of 12 years - rises to the level
of an uncured dangerous condition rendering the State liable.
Finally, it is not a recurring dangerous condition that might allow an
inference of constructive notice of the situation on that day. For example, the
Lowe v Spada
, in response to defendant's summary judgment
motion, was able to establish that she slipped on a puddle in an area of a
public restroom where there had been ongoing, unaddressed problems with water
puddles, about which the maintenance company was aware and had received
complaints. The Court said, "although plaintiff could not establish precisely
when the large puddle had formed, this was not fatal since she did establish
that she slipped on a puddle in the precise area of the bathroom where there had
been...chronic problem[s] with water puddles...." Lowe v Spada
, supra, at
817. Notably, in Lowe
, the Court was convinced that a
water puddle existed on that day. That is simply not the case
Accordingly, Claimant has failed to establish by a preponderance of the
credible evidence that the Defendant's agents created a dangerous condition at
Green Haven causing Claimant, an inmate therein, to slip, fall and suffer
serious injury. Claim Number 102009 is therefore dismissed in its
Let judgment be entered accordingly.