New York State Court of Claims

New York State Court of Claims

KELLOGG v. THE STATE OF NEW YORK, #2004-010-012, Claim No. 101872


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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 30, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries she sustained on November 7, 1999 during her incarceration at Bedford Hills Correctional Facility (Bedford). Claimant alleges that the soap dispenser in the laundry area leaked and caused her to slip and fall on the floor. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
ousing unit 113CD had a laundry area equipped with a washing machine and dryer for inmate use. Adjacent to the washing machine was a gray cabinet containing two plastic pails of soap and bleach. Pumps dispensed the soap and bleach from each pail, through plastic tubes, into the washing machine during the cleaning cycle. The soap was a blue colored detergent. The pumps were preset to transfer four ounces of soap and two ounces of bleach at the appropriate times.
Correction Officer Andrew DeMers testified that on Friday, November 5, 1999, two days prior to
claimant's accident, he was making his rounds at 11:30 p.m. when he slipped in the laundry area. After his slip, he noticed a blue round puddle approximately four feet in diameter (T:283-84).[1] DeMers observed that the liquid was coming from the gray cabinet where the soap was stored (T:285). He mopped the area, set up wet-floor signs, and completed a maintenance work request form (T:285-86). On a subsequent round at 5:00 a.m. the next morning, DeMers noticed a smaller puddle of the same solution (T:286-87). He mopped the area and left the wet-floor signs in place. Before he finished his shift, DeMers made an entry in the logbook at 6:00 a.m. which read, "[l]aundry cabinet next to washer leaking liquid soap on floor" (Ex. 2). DeMers advised the sergeant making rounds and he signed the maintenance work request. DeMers was unaware of any complaints of a leaking soap dispenser prior to November 5, 1999 (T:288).
Claimant testified that on Sunday, November 7, 1999, at approximately 8:00 p.m., she was eating dinner at a table near the laundry area. During the course of her meal, claimant stood up and walked toward the dryer to check her clothing. She took two or three steps and slipped and fell on a "soap film" (T:297). She described the condition as "a very thick film as though somebody had taken some Crisco and rubbed it on the floor and then taken a paper towel and taken one swipe and wiped it up. It wouldn't have eliminated all that was there. Just what you could see. It just felt slippery and was very, very shiny" (T:303). She had not observed any soap on the floor when she placed her clothes in the washing machine, nor had she noticed any problem with the soap dispenser prior to her fall. Claimant testified that she later learned that the soap cabinet had been leaking and inmates had been using a dry mop to clean up the spills. She acknowledged that inmates can use their own detergent, rather than the blue soap which is dispensed (T:302).
Correction Officer Brian Adamczyk responded to
claimant's accident at approximately 8:15 p.m. He observed a clear[2] liquid in a small puddle near the soap dispenser cabinet (T:276). Adamczyk described the color of the floor as tan with white specks (T:277). He stated that the floor was not slippery as he walked in the laundry area (T:275). Adamczyk dispatched claimant to the nurse and directed a porter to mop the floor. Although it was standard operating procedure to record inmate accidents in the logbook, Adamczyk failed to make the entry. He did note at 9:40 p.m. that the "washing machines are not to be used per Sgt. Chilson until repairs have been made to them" (Ex. 2). Neither the weekly health and safety inspection report dated November 7, 1999, nor the daily safety checklists indicated a problem in the laundry area (Exs. D, E).
Prior to
claimant's accident, Adamczyk was not aware of any complaints of a slippery condition in the laundry area, nor was he aware of any falls in that area (T:276). He never observed any substance on the floor prior to claimant's accident (T:267, 280).
Mark Hayo, Maintenance Supervisor III at Bedford since 1997, testified that his responsibilities included maintenance at the facility and supervising 14 employees. He receives maintenance requests daily. He did not recall if he had received a
November 5, 1999 request to repair the washing machine in housing unit 113CD (T:323-24). He further testified that he could not recall if he had ever received any requests for repairs to the soap cabinet or soap dispenser prior to November 7, 1999 (T:324). A search of his records did not reveal any such maintenance requests. However, he explained that records are only retained for three years and that, by the time he was asked to locate the records, they would have been destroyed. Despite his testimony that he did not recall receiving any requests for repairs to the soap cabinet, Hayo acknowledged that the soap dispensers have been repaired in the past due to problems with leaking (T:332).
Hayo also explained that, except for emergencies, maintenance work was not done on the weekends (T:337). Accordingly, a work request written on Friday would ordinarily not be received until the following Monday or Tuesday (T:337-38).

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, 513; Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241). The State, however, 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 prevail on her claim, claimant must show: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that claimant sustained damages (
see Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955).
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that
the credible evidence established that defendant had notice of the leaking soap dispenser and defendant's negligent maintenance was a proximate cause of claimant's fall. Hayo testified that the soap dispenser had been repaired in the past and, just two days prior to claimant's accident, DeMers slipped due to the leaking soap dispenser. Additionally, DeMers' testimony established that he had observed the leaking soap dispenser to pose a continuing problem within his same tour of duty. DeMers testified that he completed a maintenance request form on the Friday before claimant's accident (T:286) and Hayo testified that a form completed on a Friday would ordinarily not be received until the following Monday or Tuesday[3] (T:337-38). Therefore, it was reasonably foreseeable that someone else, in addition to DeMers, might slip due to the same dangerous condition. Thus, defendant was negligent in its failure to either close the laundry area or keep the wet-floor signs in place after DeMers had slipped on November 5, 1999.[4]
Accordingly, the Court finds
defendant to be 100 percent liable for claimant's accident. A trial on the issue of damages will be held as soon as practicable.

April 30, 2004
White Plains, New York

Judge of the Court of Claims

[1] References to the trial transcript will be preceded by the letter "T."
[2]The Court did not find defendant's argument persuasive regarding the color of the substance upon which claimant fell. Given the amount of the substance and the color of the specked floor, a blue soapy liquid may have appeared clear.
[3]Hayo testified that a maintenance request form completed in 1999 would have been destroyed by the time Hayo was asked to search for DeMers' form. Thus, the failure to produce the form did not detract from DeMers' testimony that he had completed such form.
[4] It is noted that, after claimant's fall, Adamczyk indicated in the logbook that the washing machines were not to be used until repairs were made to them (Ex. 2).