Claimant seeks damages for an injury he sustained while an inmate at Mid-State
Correctional Facility (hereinafter Mid-State) on January 29, 1997. The case was
bifurcated and this Decision addresses liability only.
Claimant testified that he was housed in the 1-G housing unit at Mid-State for
approximately one and one-half years prior to the time of his
On January 29, 1997, Claimant was scheduled to participate in a floor covering
program, but it was cancelled so he was sent across the hall to the 1-H Block
Housing Unit until the correction officers' shift changed around 3:00 p.m. He
had been in the dayroom watching television when he decided to go onto the porch
to watch sports on the television there.
correction officer had already unlocked the door to the porch. Claimant went
out, walked toward the television set and slipped on a slab of ice. It was
later determined that he broke his left ankle.
Much of Claimant's testimony involved describing the porch area. It is a
rectangular room with open window areas on the three outside walls. The wall
opposite the entry door has three large windows with bars and metal grating.
There is no glass or any other material on any of the windows to prevent rain or
snow from blowing onto the porch area. The walls to the right and left of the
entry door each contain one large window. Below these two windows, and the two
windows on the longer wall, are small openings for drainage.
Claimant testified that when he walked onto the porch, the television viewing
area was to the left. Benches were placed against the interior wall and
perpendicular to it for seating. Claimant entered the porch and walked around
the benches. The television was mounted approximately six feet off the ground
in the left corner of the room, as one faced the television.
Claimant recalls that it was raining and snowing the day he fell. He testified
that because the porch area was open to the elements, snow and rain would build
up on the cement floor of the porch. He testified that he was a porter, and it
is the porters' responsibility in Housing Unit 1-G to clear their porch area of
any ice and snow before the inmates are allowed to use it. Because of this,
Claimant expected that any ice or snow on the 1-H porch would have been cleared
before the door was unlocked. He saw snow around the edges of the room before
he fell, but did not see any ice.
After Claimant fell, he noticed three or four buckets along the same wall as
the television; right beside the television and extending to the window. He
had, in the past, observed inmates from 1-H fill buckets with water from the
slop sink and take them onto the porch. The buckets were used for food storage,
although this was in violation of the correctional facility's regulations, and
Claimant knew of inmates who had received misbehavior tickets for this
Claimant surmised, on cross-examination, that the ice on the floor came from
these buckets. Claimant did not see anyone bring the buckets out onto the porch
on January 29, 1997. At one point, on direct examination, Claimant was asked
the following question and gave the following answer:
He later testified that a slab of ice on the floor made him fall. On
cross-examination, Claimant said he was looking at the television from the time
he entered the porch until he fell. After falling, he noticed that the patch of
ice he slipped on was thin.
Claimant called Jay Shankman, Ph.D., an engineering expert and entered the
deposition testimony of Rodney M. Hajdasz,
on his direct case.
Defendant called Correction Officers Susan LaJudice, Theodore Knapp, Rodney M.
Hajdasz, and Thomas Scanlon, as well as their expert, Keith D.
The correction officers contradicted Claimant's testimony in a number of areas.
When Claimant discussed his duties as a porter, he said he used a shovel to
clean the ice and snow off the porch. He testified that the shovel could be
used to break up the ice, if necessary. Officer Knapp said he never saw a
shovel on the housing units. Because it is a potential weapon, he would be
surprised if any shovels were ever used there. Furthermore, none of the
Officers have ever seen ice on the porches; nor have the porches ever been
closed due to inclement weather.
As for Claimant's testimony about seeing five-gallon buckets on the porch the
day he was injured, the correction officers' testimony also called this into
question. Officer LaJudice said the buckets were contraband and kept hidden by
any inmates that possessed them. Presumably they would not be in plain view on
the porch. Officer Hajdasz testified similarly, as did Officer Scanlon.
All of the Officers who were assigned to housing units 1-H and 1-G at the time
of Claimant's injury testified that they made regular rounds which included the
porch areas during which they checked for dangerous conditions or conditions in
need of repair. The officers also testified that none of them had ever known of
another inmate slipping and falling on ice on the porch.
Claimant's expert, Dr. Shankman visited the facility on June 18, 2001 to
evaluate the porch of 1-H housing unit. On direct examination, Dr. Shankman
testified that the floor of the porch had deteriorated from the effects of the
elements on the cement. Specifically, there were shrinkage cracks, which
measured 1/8 - 1/4 inch, all over the floor and evidence of areas where water
had pooled at various times over many years. He opined that water from
precipitation would fill the cracks and, if cold enough, would freeze. In areas
of pooling or where there was sufficient water in these cracks, areas of ice -
perhaps black ice on occasion - would form.
When on his site visit, Dr. Shankman noted paint chips partially blocking the
drainage holes which were under four of the five windows of the porch. The
fifth window was open to the floor level, and therefore, had no drain. Dr.
Shankman opined that improper drainage, including the floor not being pitched
and/or a lack of a center floor drain, contributed to the pooling of water and
the deterioration of the floor area. In addition, the benches and tables on the
porch had cloth on the bottom of the legs. Dr. Shankman testified that he
believed that this was to protect them from the elements and the pooling of
water. According to Officer Hajdasz, the material on the legs of the tables and
benches, seen in the photos in evidence, was there to prevent the floor of the
dayroom from being scratched when the furniture is moved from the porch to the
dayroom by the inmates. It was applied after the furniture protectors wore
Dr. Shankman discussed the pitch of the porch floor and felt that it was
inadequate to properly drain off any water that could accumulate on the porch.
"I'm saying, we have an open area. Heavy rain coming in that area, heavy snow
coming in that area is going to be
The testimony of the correction officers was that occasionally there would be a
dusting of snow or the floor would be wet from rain. There is no evidence that
heavy rain or snow ever penetrated the porch. In fact, the only evidence of the
weather on January 29, 1997 was from the claimant, and he said it was snowing
and raining that day and he saw some snow around the window edges. The evidence
does not support the basis for Dr. Shankman's conclusion, that heavy rain or
snow accumulated on the porch floor. Furthermore, Dr. Shankman said he measured
the pitch of the floor in only one location approximately 16 feet away from the
television. This is insufficient to prove that the floor was not pitched
appropriately, especially since there are no code requirements for pitch or
grading of a porch floor. The State's expert, Mr. Rupert, disagreed with Dr.
Shankman, stating that the pitch of the floor was adequate. He also testified
that the American Correctional Association, which inspects facilities for fire
and safety hazards accredited Mid-State in 1997. No safety violations were
found by them in the porch areas.
Dr. Shankman concluded that the State had violated several sections of the New
York State Uniform Fire Prevention and Building Code (Title 9, Subtitle S of
NYCRR). The code was enacted in 1982, effective January 1, 1984, and the
Mid-State facility had been converted from a mental health facility in
1983-1984. It was Dr. Shankman's opinion that "Mid-State Correctional Facility
is governed by the cited code and is required to comply with any and all
requirements set forth by the New York State Fire Prevention and Building
He felt Subchapter B would apply to the facility as a result of the changes made
The sections of the code Dr. Shankman
felt were violated by the State were 9 NYCRR §§ 762.1(b); 800.3;
806.1; 806.3; 806.5; 1152.1; and 1245.1(c) and (f).
The State's expert disagreed saying that the State was not required to
completely comply with the building code because when the facility changed from
a mental health facility to a correctional facility, it was a conversion subject
to the provisions of subchapter E of the
Subchapter B applies to new construction. For example, because the fence
installed around the facility was a new addition, it must comply with Subchapter
B. The porches, however, were not new and were not changed, therefore,
Subchapter B does not apply to them. Code provisions 762.1(b), 800.3, 806.1,
806.3 and 806.5 are all contained in that subchapter so, according to Mr.
Rupert, are not applicable. Subchapter E allows pre-existing buildings to
deviate from the requirements of subchapter B if the building complied with the
codes in existence at the time it was
This applies if the cost of
conversion or alteration is less than 50 percent of the property value
(cf. Lesocovich v 180 Madison Ave. Corp.
, 81 NY2d 982). It cost
approximately $20 million to change the facility from a mental health
institution to a correctional facility (both institutional uses) and the value
of the property was about $150 million. When asked about the 50 percent rule on
cross-examination, Dr. Shankman replied, "Well, as far as I'm concerned with,
yes, the cost has something to do with it, but I can't bog my testimony down
with financial cost. I'm working on a safety
He was unaware of the cost
involved in the conversion.
On cross-examination, Dr. Shankman stated that the cracks in the floor that he
documented did not structurally compromise the building, although he called them
shrinkage cracks, he described them as being caused by the freezing and thawing
of water which pooled on the floor from precipitation. Mr.
also testified that the cracks in the floor were shrinkage cracks but said they
occur when the cement is drying and it shrinks. They are not caused by freezing
and thawing. Many of the cracks were too minimal to measure; less than 1/16 of
Dr. Shankman completed his written report without benefit of Claimant's
deposition or other specific information. He concluded that Claimant must have
fallen in the corner of the porch where mops were hanging because that was the
area which appeared to be the most deteriorated. This is the corner farthest
from the television set and the location where Claimant said he fell.
Also, on cross-examination, Dr. Shankman was asked about 9 NYCRR § 800.3,
one of the sections which he said was violated, which has to do with protecting
floors against deterioration. Section 800.3 refers to reference standards
elsewhere in the code. Those reference standards all deal with wood
foundations, not concrete. Dr. Shankman said his interpretation of that section
would include concrete although it is not mentioned in the reference standards.
The sections of the code Dr. Shankman said were violated that were not part of
Subchapter B are §1152.1 and 1245.1(c) and (f). Both sections set forth
general requirements and apparently neither have ever been successfully used to
provide some evidence of negligence. They impose no more obligation on the
defendant than the common law as the State has a duty to keep its premises in a
reasonably safe condition under the circumstances as does any other property
Basso v Miller,
40 NY2d 233).
The Court does not find that the other sections of the Code (9 NYCRR §
762.1[b]; 800.3; 806.1; 806.3; 806.5) are applicable to the subject porch.
To establish the State's liability, Claimant must prove, by a fair
preponderance of the credible evidence, the existence of a foreseeably dangerous
condition which caused Claimant's injuries, that the State had either actual or
constructive notice of, and failed to remedy within a reasonable period of time
Piacquadio v Recine Realty Corp.,
84 NY2d 967; Gordon v American
Museum of Natural History,
67 NY2d 836). The State, however, is not an
insurer of the safety of its premises and negligence cannot be inferred solely
from an injury producing incident (Killeen v State of New York,
850, 851; Mochen v State of New York,
57 AD2d 719,
Claimant contends he slipped and fell on thin ice on the porch. He surmises
that the ice was either caused by water from contraband buckets placed on the
porch by other inmates or the weather conditions that day.
The record is devoid of any evidence that the State had actual notice of the
contraband buckets on the porch on that day, or of icy conditions from incoming
rain or snow. To establish constructive notice, Claimant must prove that the
condition was visible and apparent and that it existed for a sufficient period
of time to allow Defendant to discover and remedy it (
see Gordon v American Museum of Natural History, supra
Claimant did not provide any proof of the length of time the icy condition
existed on the porch and there was no evidence indicating how long it had been
snowing and raining or whether there had been any accumulation on the porch
earlier that day that required clearing. Claimant himself testified that there
was no build up of snow except around the edges of the porch and he didn't
notice any rain or ice on the floor prior to his fall. Based on the evidence,
the Court does not find that a visible condition existed for a sufficient period
of time for a State employee to have discovered the problem and remedied it.
The testimony from the correction officers indicated there was no recurring
problem of icy conditions on the porches. Actual notice of a specific recurring
condition may permit an inference of constructive notice, but the facts do not
support that inference here (
Migli v Davenport,
249 AD2d 932; Camizzi v Tops, Inc.,
As for Claimant's testimony regarding the source of the ice being the buckets
of water placed on the porch by inmates, Claimant did not see anyone place the
buckets on the porch and there was no evidence as to how long they had been out
there. General awareness from prior misbehavior reports that the inmates had
previously used buckets in this manner in violation of prison regulations does
not establish constructive notice that inmates had placed buckets of water on
the porch on the day Claimant was injured (
cf. Wimbush v City of Albany,
285 AD2d 706). Moreover, there was no
evidence to suggest these buckets had ever been the source of water or ice
Claimant has failed to establish the State was negligent. This claim must be
DISMISSED. All motions previously not decided are denied. LET JUDGMENT BE