New York State Court of Claims

New York State Court of Claims

WHITE v. THE STATE OF NEW YORK, #2004-015-600, Claim No. 106106


State found liable for personal injuries sustained by claimant in fall with correctional facility where floor had been mopped and no warnings of slippery condition were apparent.

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:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 18, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this claim was bifurcated by order of the Court dated October 8, 2003 and the decision herein addresses the issue of liability only.

Claimant Gale White testified that on May 29, 2001 she was employed as a paralegal for the Prisoners' Legal Services (PLS) and had been so employed for approximately two years. On that date claimant left the PLS office in Plattsburgh, New York at approximately 9:00 a.m. and traveled one hour and fifteen minutes to Upstate Correctional Facility in Malone, New York to interview and photograph an inmate Hall. According to the witness arrangements had been made for the provision of a gate order and a camera order, the latter of which would permit photographs to be taken in connection with her investigation into an alleged assault upon inmate Hall. Upon her arrival at Upstate Correctional Facility the claimant spoke to a correction officer who informed her that the orders were not available. Twenty minutes later the gate order was found and the camera order was approved. Claimant was thereafter escorted to the Special Housing Unit (SHU) visiting area. She traveled from the reception area to the SHU in the company of a cameraman employed by the Department of Correctional Services. She stated that it was standard operating procedure for DOCS to take photographs at the same time photos were taken by PLS.

Claimant described the SHU visiting room as a large open area divided into narrow 20 foot long wire mesh cages which ran the length of the room. An additional, more private area was available for legal visits. It was in this legal visiting area that the claimant expected to interview inmate Hall. The area provided for legal visits was described by Ms. White as containing several four by four foot rooms enclosed by glass and mesh and furnished with a desk and chair. A similar space was also provided for the inmate interviewee. The claimant was familiar with the legal visiting room as she interviewed inmates "a couple times a month" at Upstate Correctional Facility. Claimant described herself as being in good health and wearing Nike sneakers and contact lenses on the morning of May 29, 2001. Although claimant was unaware at the time of her fall she later discovered that the legal visiting room is monitored by a video camera.

Upon her arrival at what she described as the interview room claimant was assisted in loading her film and was directed to the legal visiting room. The inmate had not yet arrived and the claimant took a seat and waited in the legal visiting room for what she described as "a few minutes". A correction officer identified as Correction Officer Kyea then came to the room and informed the claimant that she needed to be moved. Claimant collected her camera, file and jacket, rose from her chair and started to leave the room. The claimant testified that as she stepped away from the chair she slipped on a wet substance on the floor of the legal visiting room causing her to fall and injure her left knee. Correction Officer Kyea came into the room and also slipped on the substance although he was able to grab hold of a border near the window and catch himself before falling. The claimant testified that she did not notice the substance on the floor during her time in the legal visiting room nor did she see anyone mopping the floor or any wet floor signs posted. After her fall she noticed the substance on the floor which she described as pungent and greasy. She also noticed liquid on her left leg.

Exhibit 1 is a VCR tape recording taken by the surveillance cameras monitoring the legal visiting room which claimant testified accurately depicted the happening of her accident. Following her fall the claimant spoke to Correction Officer Kyea but did not complain of any injury. Although her knee hurt she was able to walk and was ultimately taken back to the general visiting room where, Correction Officer Kyea informed her, the inmate interview would take place. Claimant objected to the lack of privacy and was later permitted to return to the legal visiting room to conduct the interview.

During her interview with inmate Hall in the legal visiting room the claimant informed the inmate of her prior slip and fall and suggested that he use caution. She also related that Correction Sergeant Liberty inquired as to why she was standing "funny" while taking photographs of inmate Hall to which she responded that she was standing in such a manner because she had fallen in the legal visiting room injuring her leg. The claimant did not otherwise report her fall while at the correctional facility but reported it the next day to her employer by completing an employee report of injury which she described as standard procedure at PLS.

Claimant further testified that on June 11, 2001 as she was returning to work her knee buckled when she slipped on a large stone in a parking lot. Claimant was not sure which knee buckled and stated that at the time both knees were still swollen from her previous fall at Upstate Correctional Facility. She also described a third fall in September 2002 when she fell down her stairs at home and fractured her spine. Claimant confirmed that she had had surgery on her right knee prior to September 2002.

On cross-examination the claimant described herself as an active person prior to May 29, 2001. She related a prior medical condition known as Ménière's disease for which she had been prescribed Valium and confirmed that she had taken Valium on the morning of May 29, 2001. She further stated that she did not recall seeing any wet floor signs at the state correctional facility that morning. She stated that although she had not specifically inspected the floor in the legal visiting room it did not appear to be wet and she had experienced no problems walking on the floor at any time prior to her accident.

The claimant testified that as a part of her training as a paralegal she was instructed to observe her surroundings whenever she entered a correctional facility. She observed the floor in the legal visiting room where she fell and it did not appear to be wet. She indicated that she had no problem with the floor in the legal visiting room at any time prior to her actual slip and fall.

Defense counsel questioned the witness regarding testimony given at her examination before trial specifically referring to page 33, line 17 of the transcript. The witness acknowledged that she had indicated during her examination that she was in the legal visiting room for a few minutes and during those few minutes had observed the floor which appeared to be dry. The witness was asked to recall her earlier trial testimony in which she indicated that she had gotten out of the chair, collected her camera and took her jacket off the back of the chair immediately before her fall. Counsel presented the witness with Exhibit 2 which the claimant described as a statement made for purposes of workers' compensation. She reluctantly agreed that she indicated in that statement that she slipped on "something" as she stood up and fell on her left knee but stated that the account provided in Exhibit 2 was not entirely accurate. With reference to the videotape of the fall, the claimant denied defense counsel's suggestion that her left foot came into contact with the chair immediately prior to her fall.

The witness next reiterated her earlier testimony that she observed a large pool of pungent smelling liquid on the floor following her fall but was unable to explain why she had failed to notice such a large pool of pungent liquid prior to the incident. Claimant testified that she advised Sergeant Liberty of her fall and later met with the inmate she had come to the facility to interview. She further testified that after the fall on May 29, 2001 she did not miss any time from work other than a doctor's appointment on June 7, 2001. She described the substance upon which she fell as more slippery than water and acknowledged that in Exhibit 2 she indicated that she fell on her left knee and that the report contains no mention of her right knee. She admitted that her physician did not prescribe X- rays or prescription medication at her June 7, 2001 visit nor did he restrict claimant from continuing her employment.

On redirect examination the claimant clarified that she did not injure her left knee in the fall which occurred on June 11, 2001 and stated that to the extent that her bill of particulars indicates otherwise it is incorrect. With regard to her observations of the legal visiting room floor, claimant testified that she did not examine the floor prior to her fall and that the solution on which she fell was located in the back corner of the visiting room. She further testified as she had on direct examination that she did not smell the substance on which she fell until after the fall.

On re-cross-examination the witness confirmed the accuracy of a portion of her examination before trial in which she testified that the floor of the visiting room appeared dry.

Claimant's second witness was Correction Officer Chris Kyea. The witness recalled that he was working the day shift at Upstate Correctional Facility on May 29, 2001 and that he had been instructed to escort an inmate to the special housing unit visiting area for an FBI interview. He recalled that a fellow correction officer (CO Martin) had escorted the claimant to the special housing unit visiting room from the administration building which he described as a separate building connected to the SHU by interior hallways. The witness stated that the hallway floor is composed of tile but could not recall whether the floor of the special housing unit visiting area was composed of the same material.

Upon claimant's arrival at the SHU visiting area Officer Kyea escorted her to a legal visiting booth. The witness testified that he had never met the claimant before May 29, 2001 and did not recall having a conversation with her while accompanying her to the booth. He stated that the floors at Upstate Correctional Facility are cleaned by inmates but that he had no contact with any inmates cleaning or mopping floors in the area prior to the claimant's accident. The witness testified, however, that he recalled having seen "mop streaks" on the floor of the SHU visiting area. Importantly, Officer Kyea also testified that he observed mop streaks on the legal visiting room floor prior to claimant's fall. He had no recollection of any warning signs indicating a wet floor in that area on May 29, 2001.

The witness testified that after having left the claimant in the legal visiting room he was instructed by Sergeant Liberty to move claimant to a different area so that the interview could be more easily observed. When he returned to the room claimant was seated in a chair and Officer Kyea advised her that she was being relocated. He observed the witness rise from her chair and saw her slip and fall to the floor. Correction Officer Kyea testified that he inspected the area where the claimant fell using his foot, the same area of the legal visiting room floor where he previously observed mop streaks, and that the floor was slippery. The witness repeated his earlier testimony that he did not observe any wet floor signs in the legal visiting room or in the surrounding area. Correction Officer Kyea recalled having seen the video cassette recorder tape of the claimant's fall but could not recall if he had seen the tape more than once. According to the witness claimant declined medical attention following her fall.

On cross-examination the witness testified that if he had observed a pool of liquid in the legal visiting room he would have summoned an inmate porter to clean the area. He testified that he did not notice any unusual odor in the room where claimant fell. The witness was excused following cross-examination.

The next witness called to testify was Correction Officer Jeffrey Hyde. Officer Hyde indicated that he had been employed by the Department of Correctional Services as a correction officer for fifteen years and had been assigned to the Upstate Correctional Facility for a period of five years at the time of trial. In May 2001 Officer Hyde was a resource officer performing various duties which were assigned on a daily basis. On May 29, 2001 he was assigned to supervise a legal visit in the SHU visiting area involving the claimant and inmate Hall. He supervised the meeting from the officer's station but had no recollection of having entered the legal visiting room in which the claimant fell on the date of the accident. The witness acknowledged that he had in the past supervised the cleaning of floors in the facility by inmates but was not aware whether the visiting room floor was mopped on May 29, 2001. He testified that inmates assigned floor cleaning duties were sometimes provided solvents and cleaning solutions by correction officers.

On cross-examination the witness testified that he had no recollection of warning cones having been placed on the floor in the vicinity of claimant's fall on the date in question. He acknowledged creating a "to/from" memorandum shortly after claimant's accident in which he advised Sergeant Liberty that the visiting room floors were damp after having just been mopped and that wet floor signs were properly placed.

In his redirect examination the witness testified that the "to/from" memorandum he referred to on cross-examination was prepared at the request of Sergeant Liberty on June 13, 2001 approximately two weeks following the incident. He admitted that the memorandum does not indicate where the cones were placed or what areas of the facility had been mopped. The witness also admitted that he had no recollection at trial of the location of the cones on the date of the incident.

The fourth and final witness called to testify in this case was Lieutenant Edward Liberty who testified that he began his career as a correction officer with the Department of Correctional Services in 1982, was promoted to sergeant in 1988 and currently bears the rank of lieutenant. The witness testified that he had met the claimant prior to May 29, 2001 and initially denied any involvement with her visit to the facility on that date. Upon questioning by claimant's counsel the witness recalled that when claimant appeared at the facility there was a gate order naming her but there was no camera order which would allow her to bring a camera into the facility. He engaged in conversation with the claimant at that time and was ultimately responsible for obtaining a camera order for her visit. He recalled that the visiting area floor was mopped by inmates prior to the start of legal visits.

Lieutenant Liberty stated that he recalled his activity on May 29, 2001 because the FBI was scheduled to interview a high profile inmate that day. He testified that he was the SHU visiting area supervisor on that date and that the visiting area floor was mopped by inmates that morning. He recalled instructing the correction officers on duty to insure that mopping was completed prior to the start of legal visits. Although he allegedly inspected the SHU visiting area and determined that the area was clean he admitted that he did not examine the room in which the claimant ultimately fell. He recalled that at some point during the morning Correction Officer Kyea advised him that the claimant had slipped on a wet floor in the visiting area. He denied having spoken to the claimant after her fall and denied having made certain comments which claimant attributed to him. He testified that to the extent the claimant alleged that he had engaged in conversation with her subsequent to the fall she was incorrect.

On cross-examination the witness testified that he had ordered Correction Officer Kyea to move the claimant to a different interview room and further recalled that at that time there were no inmate porters in the area. He reiterated having been told by Correction Officer Kyea that the witness had slipped and added that the officer had informed him that the claimant was unhurt and had denied an offer of medical assistance. He alleged that upon being informed of the claimant's accident he immediately checked the area to confirm that the wet floor cones were in their proper place.

Lieutenant Liberty testified that as a result of his investigation following the accident he found the wet floor signs to have been properly and conspicuously placed at both the entrance to the SHU visiting area and in other locations within that area where visitors would walk. Upon questioning by the Court the witness testified that the wet floor signs were actually cones bearing the words "caution wet floor". Although the witness was referred to Defendant's Exhibit A which he identified as a map prepared by himself and another DOCS employee in early 2000, that exhibit was never introduced into evidence. Having refreshed his recollection by reference to said exhibit, however, the witness testified that on the date of the accident he observed a cone placed in front of the door where visitors enter the area, an additional cone located near the employee entrance to the area between what he described as rows D and E, and the remaining cones placed so that they were readily visible to visitors going to the legal visitation rooms. He related that floor cleaning and mopping in the SHU visiting area is done at the discretion of the correction officer(s) on duty and is usually performed at any time during weekdays since the unit is busy with visitations on the weekends. He further testified that generally two inmates are assigned to cleaning the SHU visiting area floor. The witness testified that occasionally when visitation is being conducted there may be dampness on the floor in the visiting area. Rather than closing the area DOCS would set out cones warning visitors that the floors were wet.

The witness testified that he was present in the Courtroom when both Correction Officer Kyea and Correction Officer Hyde testified that they did not recall having seen wet floor cones in the SHU visiting area at or about the time of the claimant's fall. He further recalled having heard Correction Officer Hyde testify at trial that although he did not recall having seen cones he had noted the presence of such cones and their proper placement in a memo written two weeks following claimant's accident at the witness's request.

On re-cross-examination the witness testified regarding a memo which he allegedly prepared in response to a complaint from Prisoners' Legal Service. He acknowledged that in that memo he did not discuss the presence of cones in the area of claimant's fall. The witness attempted to explain the absence of such a reference by indicating that the purpose of his memo was merely to respond to the elements raised in the PLS complaint.

Upon the conclusion of the witness's re-cross-examination the claimant rested.

The defendant moved to dismiss the claim on the grounds that the claimant had not proven a prime facie case. The Court reserved on the motion which is now denied.

The Court of Appeals recently restated the duty of a landowner with respect to the condition of his or her property in
Galindo v Town of Clarkstown, (2 NY3d 633):
"It is well settled that a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances. The nature and scope of that duty and the persons to whom it is owed require consideration of the likelihood of injury to another from a dangerous condition on the property, the seriousness of the potential injury, the burden of avoiding the risk and the foreseeability of a potential plaintiff's presence on the property."

To establish his or her right to judgment a claimant in a slip-and-fall action must establish that the defendant created a dangerous condition or had actual or constructive notice of the existence of such a condition and failed to remedy it within a reasonable time (
Kappes v Cohoes Bowling Arena, 2 AD3d 1034; Altieri v Golub Corp., 292 AD2d 734; McCombs v Related Mgt. Co., 290 AD2d 681). Alternatively, liability may be premised upon a landowner's failure to warn of the existence of a latent, dangerous condition of which it is or should be aware (Noble v Pound, 5 AD3d 936). Determination of what, if any, warning is required under the circumstances of a particular case is generally a question of fact (Van Alstine v Kentucy Fried Chicken of Cal., 292 AD2d 737).
The first issue to be determined is the nature of the condition which existed on the floor of the Upstate Correctional Facility legal visitation room where claimant slipped and fell on May 29, 2001. Claimant testified at trial and related in her Employee's Report of Injury (Exhibit 2) that she stepped in a pool of liquid located behind her chair which caused her to slip and fall. Officer Kyea testified that he observed mop streaks on the legal visiting room floor prior to claimant's fall. He witnessed claimant's accident and related that after her fall he entered the room and inspected the floor with his foot. In so doing he noticed that the area where he had previously noticed mop streaks was wet and slippery.

While the condition which existed on the legal visitation room floor was described differently by the claimant and Correction Office Kyea, a review of the video cassette tape of claimant's fall makes clear that both witnesses are referring to the same condition. The tape clearly shows the location where claimant slipped and then fell. It was this precise area of the floor which the tape discloses that Officer Kyea inspected and found to be slippery following claimant's fall. It was also the location where the officer testified he observed mop streaks prior to claimant's accident.

Accepting Officer Kyea's description of the condition as mop streaks on the floor it is clear that the claimant has established by a preponderance of the credible evidence that the defendant was aware that a potentially dangerous condition existed on the floor of the legal visitation room occupied by the claimant on May 29, 2001 and failed to remedy the condition or warn of its existence. Officer Kyea had actual notice of the existence of mop streaks on the visiting room floor prior to claimant's fall. Although not specifically brought out at trial it may reasonably be inferred from the proof that Officer Kyea's observation occurred at the time he first escorted claimant to the legal visitation room. Having observed mop streaks on the visiting room floor the Officer was under a duty to remediate the condition before permitting claimant to enter the room or, at a minimum, to warn claimant that the mop streaks were present.

The testimony established that Upstate Correctional Facility policy was to post warning signs or cones in areas mopped by inmate porters. The signs or cones were put in place to warn visitors and others that mopping had been performed and the floors might be slippery as a result. The fact that areas where mop streaks are visible might be slippery and pose a danger to visitors should have been recognized by Correction Officer Kyea. Because a reasonable person would recognize mop streaks on a floor as a potential danger it was incumbent upon Officer Kyea to correct the condition before allowing the room to be used. This he did not do despite the likelihood of injury to persons using the room and the minimal burden of avoiding the risk. It would have been a simple matter to summon inmate porters to clean the area, a step that was required to be taken given Officer Kyea's observation of the condition but was not. The failure to correct the condition before allowing use of the legal visitation room violated defendant's duty to maintain its premises in a reasonably safe condition under the circumstances.

The Court further finds that the defendant failed to warn of a latent, dangerous condition on its premises. First, Officer Kyea was aware that there were mop streaks on the floor of the legal visitation room yet failed to warn or advise claimant of the potentially dangerous condition prior to her fall. Second, the Court accepts the testimony of the claimant and Correction Officer Kyea and finds that wet floor cones were not placed in or around the legal visitation room at the time of claimant's accident. The "to/from" memorandum prepared by Sergeant Hyde two weeks following the incident is unpersuasive and testimony to the contrary by Lieutenant Liberty is rejected based upon the Court's observations of the witnesses at trial in favor of the testimony of the claimant and Correction Officer Kyea (
Alber v State of New York, 252 AD2d 856). Finally, the Court notes that the mere fact that Officer Kyea observed mop streaks on the legal visitation room floor does not compel the conclusion that the condition was open and obvious. Instead, the Court finds upon the credible proof presented that the existence of mop streaks constituted a latent, dangerous condition not so readily observed by the reasonable use of one's senses as to negate the duty to warn (Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69).
The State is determined to be solely liable for damages related to claimant's fall at the Upstate Correctional Facility on May 29, 2001. The nature and scope of claimant's damages will be determined at a trial the date of which will be determined at a conference to be scheduled by the Court following filing and service of the decision herein.

The Clerk is directed to enter an interlocutory judgment on the issue of liability in favor of the claimant. Let judgment be entered accordingly.

August 18, 2004
Saratoga Springs, New York

Judge of the Court of Claims