On September 13, 1998 at approximately 5:30 P.M., claimant David Jones, an
inmate at Franklin Correctional Facility, allegedly injured his knee while
returning to his housing unit from dinner. Claimant maintains that he fell in a
hole that measured two feet wide and twelve feet long located inside the east
sally port gate of the prison. Claimant did not testify as to the exact depth
of the hole. At the time that he allegedly fell in this hole, he was in the
middle of four other inmates walking abreast, talking with these inmates.
Claimant, who does not wear glasses, was looking straight ahead at the time.
There were people in front of him and people walking in the opposite direction.
The walkway was usually crowded during chow runs. Claimant testified that the
first time he saw the hole was on the day of the accident. Claimant had been
incarcerated at Franklin Correctional Facility since June of 1998. He walked
through the east sally port gate several times a day to attend programs, to go
to the gym, and to eat meals.
In order to establish a prima facie case of negligence, a claimant must
establish "(1) a duty owed by the defendant to the plaintiff; (2) a breach of
that duty, and (3) an injury suffered by the plaintiff which was proximately
caused by the breach" (
Kampff v Ulster Sanitation
, 280 AD2d 797 [3d Dept 2001]). When the
State acts as a landlord, it is not an insurer of pedestrians on the grounds of
its institutions (see, Bowers v State of New York
, 241 AD2d 760 [3d Dept
1997]), but it does have a duty to maintain those grounds in a reasonably safe
condition (Basso v Miller
, 40 NY2d 233 ). This duty includes the
obligation to reasonably cure dangerous conditions that a defendant has created
or of which it has had actual or constructive notice (Reinemann v Stewart's
Ice Cream Co.
, 238 AD2d 845 [3d Dept 1997]).
Individuals have a duty to see and be aware of what is in their view and to use
reasonable care to avoid accidents (
Terrell v Kissel
, 116 AD2d 637 [2d Dept 1986]), "to see what by the
proper use of (their) senses (they) might have seen" (Le Claire v Pratt
270 AD2d 612 [3d Dept 2000], quoting Weigand v United Traction Co.
NY 39 ). A landowner has no duty to correct or warn of a condition that
is "readily observable to a person of ordinary intelligence employing the
reasonable use of his or her intelligence" (Patrie v Gorton
, 267 AD2d 582
[3d Dept 1999], lv denied
94 NY2d 761; De Rossi v Golub Corp.
AD2d 911, 912 [3d Dept 1994], lv denied 85 NY2d 804; Tarricone v State of New
, 175 AD2d 308 [3d Dept 1991]).
Whether a defective or dangerous condition exists is generally considered to be
a question of fact that turns on the circumstances of the particular case (e.g.
appearance of defect; extent of defect; time, place and circumstance of the
Lamarre v Rensselaer County Plaza Assoc.
, _AD2d_, 2002 WL 32067102 [3d
Dept 2003]). An "owner of a public passageway may not be cast in damages for
negligent maintenance by reason of trivial defects on a walkway, not
constituting a trap or nuisance, as a consequence of which a pedestrian might
merely stumble, stub his toes, or trip over a raised projection" (Sullivan v
State of New York
, 276 AD2d 989 [3d Dept 2000], quoting Liebl v
Metropolitan Jockey Club
, 10 AD2d 1006 [2d Dept 1960]).
It has been held that a hole, depression, or non-alignment in a sidewalk or a
parking lot that results in a difference in height between one inch and two
inches cannot support a finding of liability (
Allen v Carr
, 28 AD2d 155, 156, affd 22 NY2d 924). Courts are to
consider evidence such as photographs and affidavits describing the defect in
order to determine "whether the defect was so trivial and slight in nature that
it could not reasonably have been foreseen that an accident would happen"
(Evans v Pyramid Co. of Ithaca
, 184 AD2d 960 [3d Dept 1992]). Other
factors that have been referenced are the injured party's familiarity with the
area, the length of time the condition has been present, whether there were any
prior accidents, the nature of the area surrounding the defect, and the lighting
of the area at the time of injury (Julian v Sementelli
, 234 AD2d 866 [3d
Trincere v County of Suffolk
(90 NY2d 976 ), the Court of Appeals
recited the following as relevant facts to be considered: "the width, depth,
elevation, irregularity and appearance of the defect along with the ‘time,
place and circumstance' of the injury" (id. at 978, quoting Caldwell v
Village of Is. Park
, 304 NY 268, 274). Liability will result only if a
consideration of the facts and circumstances leads to the conclusion that the
defect posed an unreasonable risk of harm and possessed the characteristics of a
trap or nuisance (Maloid v New York State Elec. & Gas Corp.
, 257 AD2d
712 [3d Dept 1999]) or was so out of character with the surroundings as to be a
foreseeable cause of harm (Tripoli v State of New York
, 72 AD2d 823 [3d
There is insufficient evidence to support this claim. In addition to the
claimant's testimony as to what transpired the day of the accident, claimant
produced at trial four exhibits, three photographs and an accident report. None
of the photographs depict how the roadway appeared on the day of the accident.
The three photographs, which were offered to show the general area where the
claimant fell, are not enlightening at all (Exhibits 4, 5, 6). They depict a
roadway which has been repaired but "evidence of repairs made after an accident
is inadmissible if offered as an admission of negligence or culpability in
causing the injury, because the inference is unjust and public policy forbids
it" (Richardson, Evidence, 11
th edition, §4-612). The accident report also does not shed any light on
this claim. It merely states that claimant felt a "pop when stepping in hole"
Claimant argues that he asked prison officials to take photographs immediately
after the occurrence and the fact that they did not do so is indicative of "the
defendant actually destroyed the evidence of the hole by failing to take
reasonable precautions to preserve that evidence" (Claimant's Post-Trial
Memorandum of Law). The Court finds this argument to be specious at best. The
prison officials are not required to take pictures of evidence for inmates.
Civil Rights Law § 79 (3) states that the State shall not be liable for any
expense of, or related to, inmate litigation and shall not be required to
perform any services related thereto
(Wynn v State of New York
, #2003-019-513, Claim No. 106689, Motion Nos.
M-66237, CM-66312, February 14, 2003, J. Lebous; Gittens v State of New
,175 AD2d 530 [3d Dept 1991]).
Claimant relied on two cases in support of his argument that the defect was not
trivial. He cites
Argenio v Metropolitan Transportation Authority
(277 AD2d 165 [1st Dept
2000] for the proposition that the presence of an edge which poses a tripping
hazard renders the defect nontrivial. He then argues that the evidence in this
case shows "that the hole abutted a steel rail, which also establishes that
there was the presence of that steel rail as an edge and clearly posed a
tripping hazard" (Claimant's Post-Trial Memorandum of Law, p. 3). The
photographs in this case, taken after the occurrence, do show a bar in the
pavement. However, there was no evidence at trial that this bar was present at
the time of the occurrence or that its presence created an edge over which one
would trip. In addition, claimant never testified that he tripped over a steel
bar. The second case claimant relies upon is Young v City of New York
(250 AD2d 383 [1st Dept 1998]) for the proposition that "an uneven walkway . . .
can cause someone to trip" (Claimant's Post-Trial Memorandum of Law, p. 3).
, however, holds that whether a dangerous or defective condition
exists depends on the peculiar facts and circumstances of each case and is a
question of fact for the jury (id
., citing Guerrieri v
, 193 AD2d 647; Trincere v County of Suffolk
, 90 NY2d 976,
Claimant did not produce at trial any affidavits or deposition testimony from
any inmate witnesses or correction officers. Claimant did not produce at trial
any evidence that the defendant had actual or constructive notice of any
defect. Claimant did not produce at trial any evidence about how long the hole
may have existed, how deep it was, or whether there were any prior accidents.
In short, the claimant failed to prove his case by a preponderance of the
In light of the foregoing, the defendant's motion to dismiss is granted and
any and all other motions not heretofore addressed are denied.
Let judgment be entered accordingly.