In his claim filed on October 11, 2001 the claimant alleges that he injured his
ankle when he was forced to leave the shower area at Great Meadow Correctional
Facility without being permitted to remove soap which he had previously applied.
Claimant alleges that as a result he slipped upon exiting the shower area and
suffered injury. Claimant's testimony was received through an interpreter.
The claim alleges that on May 10, 2001 while claimant was showering in the
shower area of B-2 Company at Great Meadow Correctional Facility he received a
direct order to exit the shower while the shower was still running and claimant
was covered in soap. As claimant was leaving the shower area he slipped and
twisted his right ankle. At trial claimant testified that he was the first
inmate on his cell block to be taken to the shower on the morning of May 10,
2001. Claimant entered the shower area, the water was turned on and claimant
began to apply soap. According to the claimant, inmates are usually provided
five to seven minutes to the shower but on this particular occasion the water
was turned off within two minutes and claimant was directed to exit the shower
while he was covered in soap. Claimant testified that his eyes were burning and
he requested the correction officer to permit him to rinse off in the shower.
That request was denied and claimant complied with the direct order to exit the
shower by backing out with his hands behind him according to normal procedures.
Claimant testified that he tripped as he backed out of the shower and then
slipped on water which had accumulated on the floor. He testified that when he
slipped he turned his leg injuring his right foot which later became swollen and
sore. Claimant contends that he injured a nerve in his foot and that he can no
longer run or exercise and experiences continuing pain in his right foot.
On cross-examination the claimant testified that he had been in the special
housing unit where his injury occurred for one year prior to his accident. He
was fully familiar with the shower procedures in SHU which required an inmate to
back out of his cell with his hands behind him before going to the shower and to
exit the shower in the same manner. Claimant testified that there are no valves
in the shower area for the inmate to control the water flow or temperature and
that the water is controlled by a correction officer who determines how long any
particular inmate will be permitted to shower. Claimant reiterated his
testimony on direct testimony that inmates are usually permitted a five to seven
minute interval for their shower.
According to the claimant, after the correction officer turned off his shower
he instructed the claimant to step out of the shower walking backwards with his
hands behind his back. Claimant states that he had soap in his eyes and he
slipped as he was backing out of the shower. Claimant states that he remained
on the floor after the fall for an indeterminate amount of time, that he
experienced pain in his foot and that he went back to his cell following the
incident. He was later taken to emergency sick call and observed upon his
return to his cell that his right foot was swollen. At the conclusion of
claimant's cross-examination the defendant moved to dismiss those portions of
the claim which allege medical malpractice and inadequate treatment of his
injury. The motion was granted by the Court and those causes of action were
The defendant called Correction Officer Thomas Koupash who testified that he
has been employed by the Department of Correctional Services as a correction
officer for eighteen years at the time of trial. The witness testified that on
May 10, 2001 he was overseeing the shower area in the B-2 special housing unit.
Officer Koupash testified that showers are turned on by a correction officer
and that they continue to run automatically for a duration of seven to eight
minutes which is not controlled by the correction officer. An inmate is able to
control the temperature of the shower and can turn the water off but is unable
to exceed the time limit in that the shower automatically turns off upon the
expiration of the specified period.
Officer Koupash testified that the claimant slipped and fell approximately 10
to 15 feet outside the actual shower area. The officer did not recall seeing
soap on the claimant and stated that following his fall the claimant got up
laughing and joked with other inmates as he returned to his cell. Claimant did
not request sick call following the incident but was sent to the infirmary by
Officer Koupash as a precaution. According to Koupash, claimant was the second
inmate to shower on the date of the accident.
To impose liability for injuries resulting from the allegedly defective
condition of a shower area floor the injured party must establish that the
landowner either created or had actual or constructive notice of the dangerous
Van Stry v State of New York
, 104 AD2d 553). Actual or constructive
notice is usually established through proof demonstrating prior similar
incidents or a readily observable condition which existed for a sufficient
length of time to afford the landowner the opportunity to correct the condition
(Van Stry v State of New York
, 104 AD2d 553, supra
). The fact
that there may have been water in or near the shower area does not, in and of
itself, establish a dangerous condition (Fasano v Crivera
, 260 AD2d 426).
In the instant matter claimant did not prove that the State had either actual
or constructive notice of a dangerous condition in the shower area. In fact,
claimant failed to establish the existence of a dangerous physical condition in
the first instance. As to the alleged negligence of Correction Officer Koupash,
the Court is required to resolve credibility issues based upon its observations
of the witnesses at trial. In this regard the Court credits Officer Koupash's
testimony regarding the inability of anyone other than the claimant to effect an
early termination of the water flow to the shower. As a result, the Court finds
that the claimant has failed to establish by a preponderance of the evidence
that any act of Correction Officer Koupash caused or contributed to any injury
he might have suffered. Accordingly, the claim is dismissed.
Let judgment be entered accordingly.