New York State Court of Claims

New York State Court of Claims

DELAROSSA v. THE STATE OF NEW YORK, #2004-013-512, Claim No. 101785


State failed to sufficiently inspect wet floor before removing warning signs, thus contributing 60% to Claimant's fall and injuries.

Case Information

GRACE DELAROSSA Claimant testified that her "real" last name is Hiciano, but this claim was brought in the name of Grace Delarossa. The Court has amended the caption sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :
Claimant testified that her "real" last name is Hiciano, but this claim was brought in the name of Grace Delarossa.
Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
BY: DAVID PAJAK, ESQ.Trial Counsel
Defendant's attorney:
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 23, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Grace Delarossa was an inmate at the Albion Correctional Facility on January 30, 1998, when she slipped and fell in and about Rec Room H2, on what is alleged to have been a wet floor. She alleges personal injuries as a result of her fall. The trial of this claim was bifurcated and thus this decision addresses only issues related to liability.

While the claim itself asserts that the time of the accident was January 30, 1998 at 10:10 a.m., Claimant testified that it occurred at about 10:10 p.m., in the evening, consistent with the log book sheet admitted as Defendant's Exhibit A. Furthermore, as noted below, the correction officer in charge of the premises at the time of the incident was assigned to the 3:00 p.m. to 11:00 p.m. shift. At trial, I granted Claimant's motion to conform the pleadings to the proof.

Claimant testified that she was waiting for the "count to clear", after which permission from correction officers is granted to allow her and other inmates to take a shower. She went out the door of the Rec Room area, and slipped on the tile floor as she was going through the door frame. She testified that there were no signs or other warnings that the floor was wet. She noted that the floor was wet, but by the time she noticed the wetness she was unable to stop herself from slipping. She fell backwards, landing on her back, and estimated that she slid about ten feet, with the shin of her left leg striking the door frame. She allegedly fractured some ribs, needed stitches to her leg and was given crutches.

Claimant acknowledged that this incident took place after cleanup, to wit, after the floors had been mopped, and she assumed that the water upon which she allegedly slipped came from the area of the recently mopped floor. She was wearing State-issued rubber-soled thonglike slippers and was walking at what she described as her normal pace. When prodded by the Defendant, Claimant acknowledged her pace was at "a pretty good clip."

Correction Officer (CO) Robert Frasier was the Hall Captain on the H2 Housing Unit at the time of this incident, which occurred during his 3:00 p.m. to 11:00 p.m. shift. He testified that he was familiar with the "rec" and shower areas in question. He described the rec area as being approximately 35 feet by 45 feet with a tile floor. The floors are mopped daily during the 6:00 p.m. and 10:00 p.m. inmate "counts," and showers are only permitted after the counts are completed. On the day in question, at about 10:25 p.m., CO Frasier was in the dorm area at the officer's station, behind glass windows, and he observed Claimant and a few other inmates run from the dorm toward the bathroom door. He characterized the inmates' movements, specifically including Claimant, as "running." Using the loudspeaker, he yelled at these inmates, including Claimant, to "stop running," but by that time Claimant was already slipping and falling to the floor. CO Frasier estimated that she only slid some three feet.

CO Frasier testified that he does not "clear the count" until he believes the floor is "completely dry or dry enough"[1]
to allow the inmates to reenter the Rec Room area. He acknowledged that the only source of moisture on the floor was from the 10:00 p.m. mopping by the inmates. There is no dispute that on the night in question CO Frasier believed that the floor was dry enough to permit the inmates to walk upon the floor and the wet floor signs had been removed. However, according to CO Frasier, while "running" was not permitted, it was not unusual and happened in the past, and it was something he had to watch for.
It was CO Frasier's testimony that he had inspected the floor prior to the accident, that he saw no water on the floor near the shower before or after the accident, and that the floor was dry.

There are two or three main factual disputes which require resolution. Not surprisingly, the testimonies of Claimant and of CO Frasier are exaggerated. While Claimant estimates that she slid some ten feet into the wall, CO Frasier suggests that it was only three feet. Needless to say, both are estimates, and the reality probably falls somewhat in between. Similarly, CO Frasier characterizes Claimant's pace after being released from the count as "running", while Claimant describes it as walking, albeit at a pretty good clip. Again, each party exaggerates or understates the characterization to their own benefit.

The last factual dispute concerns whether the floor was wet or not. The distance that Claimant slid appears to have some relevance here, as Claimant suggests that the floor was wet enough for her to have fallen on her back as her feet slipped out from under her and for her to have slid some ten feet. The State urges a contrary conclusion, suggesting a fall and slide of only three feet on a dry floor, solely as a result of unauthorized running.

Claimant elicited testimony that rubber mats were installed on the floor post-accident, but that has no probative import to me, particularly in the absence of any evidence that there was some duty to have supplied such mats prior to the date of this incident. To the extent that Claimant argues that the rubber-soled thongs supplied by the Defendant to Claimant were inadequate, such a theory is rejected in the absence of opinion evidence regarding the comparable traction and adequacy of the shoes themselves. Moreover, the shoes in question were neither displayed nor offered into evidence at trial.

Resolution of these basic factual disputes governs any finding of liability. I found interesting CO Frasier's acknowledgment that the inmates generally ran to the showers, and that he had to watch them to keep them from doing so. Given that Claimant was wearing state-issued shoes, and that she did slip and fall and then slid on the floor, I find it more likely than not that the floor was not dry enough to release the inmates from the count, given the known proclivity of the inmates to traverse the tile floor at a quick pace to get to the showers. The length of Claimant's slide, somewhere between three feet and ten feet, supports a finding that the floor was wet.

Accordingly, I find that the caution signs were removed prematurely at the State's direction, and that the inmates were thus prematurely released from the count and permitted to traverse the floor at a time when it was not dry enough to be safely traversed at the pace that the inmates were known to employ, and that liability should attach to the State of New York. CO Frasier testified that he inspected the floor prior to releasing the inmates, and while I do not question his veracity in so testifying, it is apparent from the evidence before me that the floor was not sufficiently dry to safely permit the inmates to be released to get to the showers. That negligence was a proximate cause of the accident which led to Claimant's injuries.

That being said, however, does not absolve Claimant of culpable conduct of her own in traversing the floor at too fast a pace for the conditions extant, particularly as she could see and should have seen that the floor was still wet and had not completely dried. I find that Claimant's actions are 40% responsible for the accident, while the Defendant's share of responsibility is 60%.

The standard of care that applies to the State in its capacity as a landowner is the same standard of care that applies to private citizens who are landowners (
Miller v State of New York, 62 NY2d 506; Preston v State of New York, 59 NY2d 997), and is applicable to the State in its capacity as the owner of its correctional facilities (see Bowers v State of New York, 241 AD2d 760; Montross v State of New York, 219 AD2d 845). The State must act as a reasonable person in maintaining its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injuries that might result, and the burden of avoiding the risk (Miller v State of New York, 62 NY2d 506, supra; Preston v State of New York, 59 NY2d 997, supra).
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; Condon v State of New York, 193 AD2d 874), and it is not an insurer of the safety of inmates within its correctional institutions (see Casella v State of New York, 121 AD2d 495). The State is responsible in the operations of its institutions only for hazards reasonably foreseen and risks reasonably perceived (Flaherty v State of New York, 296 NY 342). Therefore, to impose liability upon the State as an owner of property, a claimant must establish that a hazardous condition existed, that the State either created the condition or had actual or constructive notice of it, but failed to take reasonable steps to eliminate the hazard (Miller v City of Syracuse, 258 AD2d 947).
Actual notice is established where there is proof that the Defendant created the dangerous or defective condition (
Lewis v Metropolitan Transp. Auth., 99 AD2d 246, affd 64 NY2d 670). Constructive notice can be established by evidence of an apparent and visible defect that existed for a sufficient period of time prior to the accident to allow the State the opportunity to discover and correct the problem (Gordon v American Museum of Natural History, 67 NY2d 836).
Thus, in establishing the Defendant's liability here, Claimant has proven that it was the Defendant's correction officer who directed that the "floor wet signs" be removed, albeit prematurely, or at least without sufficient inspection to verify that they could be removed, to wit, not waiting until the floor was sufficiently dry before releasing the inmates to go to the showers, and that a wet floor constituted a dangerous condition when the inmates (and specifically Claimant) traversed it at their habitual pace to get to the showers.

Claimant, of course, was bound to see that which was there to be seen and had a duty to conduct herself according to the readily observable condition (
see Luksch v Blum-Rohl Fishing Corp., 3 AD3d 475). Thus, Claimant's own negligence was also a cause of her fall.
Accordingly, I find Defendant 60% liable and Claimant 40% liable with respect to the injuries proximately caused by Claimant's slip and fall on the night in question. All motions not heretofore ruled upon are now denied. A trial on the issue of damages will be scheduled as soon as practicable.


August 23, 2004
Rochester, New York

Judge of the Court of Claims

[1] From the Court's trial notes.