New York State Court of Claims

New York State Court of Claims

RICE v. THE STATE OF NEW YORK, #2003-031-513, Claim No. 100924


Claimant demonstrated that State had notice of a dangerous condition and failed to take adequate remedial action. State 40% and Claimant 60% responsible for Claimant's injuries. Claimant awarded judgment in the amount of $200.00.

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):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 6, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Gary Rice filed claim number 100924 on August 20, 1999, alleging that the State of New York was negligent in failing to remedy a dangerous condition in his cell that caused him to slip and fall on May 4, 1999. I conducted a trial of this matter on March 10, 2003 at Wende Correctional Facility.

Claimant testified that, shortly before the incident, he had been placed in a double occupancy, handicapped cell within the Special Housing Unit ("SHU") at Lakeview Shock Incarceration Correctional Facility ("Lakeview"). (Claimant is not handicapped.) Also before the incident, Claimant had noted that water leaked from the shower stall and onto the cell floor. According to Claimant, due to the lack of a shower curtain, the shower head sprayed water out of the shower stall and onto the cell floor, creating a slipping hazard. Claimant filed a grievance concerning this allegedly dangerous condition on April 27, 1999. On April 29, 1999, Claimant was informed that it was facility policy to provide inmates with extra towels to use as bath mats and as mops to soak up this excess water. Sometime between April 29, 1999 and May 4, 1999, Claimant was informed that his grievance had been denied. Shortly thereafter, on May 4, 1999, Claimant alleges that he slipped in water upon exiting the shower, injuring his back and forearm.

Claimant also testified that he had not, in fact, been issued any towels to assist in correcting the alleged dangerous condition, and that he had received only 2 hand towels, one which he used to dry off and one which he used, unsuccessfully, to mop up the water on the cell floor. He stated that the inmates had no way of turning the water off once it had been turned on. It turned off automatically after 20 minutes. Claimant asserted that the inmate with the second shower (the second 10 minute portion of the allotted 20 minutes) usually had to contend with a puddle of water on the floor outside of the shower stall. He argued that this condition was especially evident in his cell, as the handicapped shower had several features which made water more likely to be spilled outside of the shower stall. These features included a much smaller lip separating the shower stall from the rest of the cell, a chair affixed within the shower stall which partially blocked the drain, and a handrail off of which water would splatter.

Defendant offered the testimony of Sergeant J. T. Hall, who has been employed at Lakeview since 1989 and who was working in Claimant's housing unit during the period in question. Sergeant Hall testified that the floor in Claimant's cell was constructed with a special non-slip surface. This flooring, which was designed specifically to prevent slips, was in place prior to Claimant's accident. He also indicated that each inmate was issued two white bath towels and two hand towels upon arrival at the SHU. In this regard, Defendant's exhibit H indicates that Claimant was issued these items on April 27, 1999. He stated that, at shower time, each inmate was given an extra green towel to use as a bath mat and as a mop to soak up any excess water.

Sergeant Hall also testified that providing the SHU inmates with shower curtains or real mops would create a security risk. Sergeant Hall concluded his testimony by stating that, in the four years that he has been working in the SHU at Lakeview, the green towels issued to inmates to act as bath mats and as mops had been sufficient and, other than the Claimant's incident, there have been no complaints or reports of inmates slipping on the floor outside of the shower.

With regard to Claimant's injuries, Defendant called Candace Weitz, RN. Ms. Weitz, the S Block (SHU) nurse at the time of the accident, testified that she saw Claimant after his fall on the day of the incident. Additionally, relevant portions of Claimant's Ambulatory Health Record (exh. B) indicate that Claimant was seen by facility health care providers on the day of the incident and one week later, May 11, 1999. The entries in exhibit B for these days demonstrate that there were no objective signs of injury to Claimant. Claimant had no swelling, no abrasions, and no loss of range of motion. Due to his subjective complaints of pain, however, Claimant was issued ibuprofen.

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). However, the State 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).
In order to establish liability in a slip and fall case, Claimant must demonstrate, by a preponderance of the credible evidence, that a dangerous condition existed; that the State either created this dangerous condition, or had actual or constructive notice of the condition and failed to correct the problem within a reasonable period of time; and that this dangerous condition was a proximate cause of the accident (
Goldman v Waldbaum, Inc., 297 AD2d 277; Dapp v Larson, 240 AD2d 918).
Upon the record before me in this matter, I find that Claimant has established that, for this particular cell, the shower stall was especially likely to fail to contain the water and that a dangerous condition could develop after the shower had been in use for the allotted 20 minutes. The Claimant himself gave the State actual notice of this dangerous condition when he filed his inmate grievance approximately one week prior to his accident.

I find that the steps taken by Defendant, allegedly providing inmates with an additional towel, were not sufficient to correct the dangerous condition that existed in Claimant's cell. I, therefore, find that Defendant is liable for the damages Claimant sustained as a result of his slip and fall in his cell on May 4, 1999.

However, Claimant is not without fault in this incident. Claimant was bound to see that which by the proper use of his senses he should have seen (
Tarricone v State of New York, 175 AD2d 308, lv denied 78 NY2d 862). Claimant also had actual notice of this dangerous condition as established by his own testimony and the grievance he filed approximately one week before his accident. For this reason, I find that Claimant is largely responsible for the slip and fall and his resulting injuries.
Based upon the foregoing, I find that liability for any injuries suffered by Claimant as a result of this accident should be apportioned 40% to the State and 60% to Claimant.

With regard to damages, however, Claimant has failed to offer any proof that he suffered any injury more severe than strained back muscles. There is no objective evidence of any sort that Claimant was seriously injured in his fall. The only evidence before the Court is Claimant's subjective complaints of pain, his testimony that he slept on the cell floor for several nights after the accident, and that the pain in his back took several months to dissipate. I find that Claimant has been damaged in the amount of $500.00. Therefore, Claimant is hereby awarded the sum of $200.00, representing the Defendant's 40% portion of these damages.


June 6, 2003
Rochester, New York

Judge of the Court of Claims