New York State Court of Claims

New York State Court of Claims

QUINONES v. THE STATE OF NEW YORK, #2004-032-507, Claim No. 98436


Synopsis


Judgment for defendant in claim of prisoner who lost vision in one eye as a result of a fall in the shower room of Clinton Correctional Facility Annex. Neither the design of the shower room or the design of a towel rack in the shower room created a dangerous condition. Claimant's injuries were a freak accident that could not be foreseen by defendant or his own negligence was the sole proximate cause.

Case Information

UID:
2004-032-507
Claimant(s):
FELIX QUINONES
Claimant short name:
QUINONES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98436
Motion number(s):

Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Adam Thompson, Esq.By: Bernard B. Schachne, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Dennis M. Acton, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 30, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
On August 28, 1997, in a bathroom in Building 14 of Clinton Correctional Facility, claimant Felix Quinones alleges that he slipped or fell on a wet, soapy surface, struck a protruding part of the towel rack, and injured his left eye. The State's liability for his injury is premised on several allegations of wrongdoing: that the protruding dowel posed a forseeable risk of harm; that the towel rack incorporating this defect was located too low on the wall and too close to the shower area; that the towel rack lacked a shelf and end brackets; and that soapy water from the shower went onto the tiled area in front of the towel rack, creating a dangerously slippery condition. Defendant contends either that claimant's own actions were the sole proximate cause of his injury or that the injury did not occur in the manner described by claimant. The Court concludes that the accident did not occur in the manner described by claimant, and in any event, even if it had occurred as he described, it was either a freak occurrence that neither party could have foreseen or a result of claimant's own negligence.

FACTS
Claimant: Claimant Felix Quinones ("claimant") testified he is 5' 9" in height without his shoes and that on the day of the accident he had no difficulty moving his arms or legs and no problem balancing. He was housed on the seventh floor in Building 14 of the Clinton Correctional Facility Annex, and at around 9:00 A.M., he took his soap, shampoo and towel, and went to take a shower.
The shower room consisted of four or five showerheads, with thick, black plastic or rubber mats in the area under and next to the shower heads. Behind that was "a little ramp that stops the water from coming in and coming out of the showers," which he also described as "a little cement wall, like . . . 6 or 7 inches tall" (Tr, 92). The top of this water-retaining wall was tiled (Tr, 118) and there were no shower curtains at any location. On the other side of the low wall there was an area of bare tile floor and on the adjacent wall, a wooden towel rack.

Claimant described this towel rack as just something to hang things on: a piece of wood with some pieces of wood like the "handle of a mop or broom" sticking out of it (Tr, 111). He believed there were six dowels, or sticks, on the towel rack and that they were 5 to 6 inches long. At an earlier examination before trial, claimant had stated that he could not recall if there was a shelf over the dowels, but at trial he testified that there had been no shelf. He explained that when he saw the pictures presented at trial, he realized that there hadn't been any shelf, just the "poles and a piece of wood" (Tr, 310).

On the morning in question, claimant was apparently the first person to use the showers, as the floors were dry at all locations and no one else was in the shower room. On this occasion, claimant used what he described as the second showerhead, located on the back wall and closest to the corner opposite the entrance doorway (Tr, 281). He wore shower slippers to avoid getting fungus. These slippers were spongy rubber and were purchased at the prison commissary for 89 cents (Tr, 118). He placed his soap on the water-retaining wall and hung his towel on one of the dowels of the towel rack, placing his dry underwear on top of the towel. After completing his shower, he stood on top of the water-retaining wall,
and using one hand, grabbed the towel and dry underwear from the rack. When asked by his counsel to demonstrate this movement, he stood up, reached one arm out fully extended and leaned his body forward (Tr, 308-309).
Claimant held the dry underwear in his teeth while he dried himself and removed his wet underwear, squeezing the water out and placing them on the top of the water-retaining wall. He then put on the dry underwear. At that point he was ready to hang up his towel and leave the shower room, but he remained standing on the water-retaining wall, he stated, because there was approximately one-quarter to one-half inch of soapy water still on the floor in front of the towel rack. Since there was no shower curtain to hold back the water, he stated, the area on the far side of the retaining wall became "floody and so full of water and soap" that he wanted to wait until it went down the drain at that location (Tr, 94). The drain, he testified, was old and it took awhile to take the water away (Tr, 294). Consequently, rather than stepping down and walking up to the towel rack, he held the towel in both hands and leaned forward to return the towel to the rack. As he did this, his foot slipped. "When I slipped, I fell into [sic] the wet floor, it was full of water and soap, so I started, you know, trying to stay up, trying to get balanced, and I didn't get balanced and I went towards the towel hook, towards the wall, and I hit it sideways . . . ." (Tr, 92-93). He stated that he fell before he was able to get the towel returned to the towel rack (Tr, 292), and that his hands were in front of him as he began to fall. The left part of his face and his left eye hit the towel rack at either the first or second dowel to the left.

Claimant had been in this housing unit since August 13, 1997 and had used the showers in this room on several occasions. He stated that he had previously encountered the same problem of accumulated soapy water in front of the towel rack and had spoken about it several times to the correction officers on duty. He said that his complaints were about the water and soap outside the shower, the absence of mats beyond the water-retaining wall, and concern that because it was constantly dirty and wet, and "you can catch fungus in there" (Tr, 97). He said that he spoke at least four times to the officers at the desk near the entrance to the shower room and once to the porter (Tr, 268). He could not identify the officers other than to say that they were white. The main causes of the problem, in his opinion, were that there were no curtains separating the shower area from the area on the other side of the water-retaining wall and that there were no mats near or under the towel rack.

After claimant fell to the floor, screaming, another inmate named Gonzalez came and lifted him up, taking him to the officer in charge. At the officer's direction, Gonzalez then took claimant to the medical clinic. Claimant testified that he was in great pain and still screaming when they took some photographs of him[1]
and placed him on a stretcher. He was given an ice pack but no other pain killer, and had to be tied to the stretcher because he was thrashing around so much because of the pain. The Inmate Accident Report filled out by the physician's assistant (Exhibit 1) indicates that claimant said the injury occurred when "I fell in the shower room."
Claimant was transferred by ambulance to an outside hospital where his eye was examined by two physicians. He underwent immediate surgery. After surgery, he was returned to the prison hospital. Thereafter, claimant was transferred to a number of other facilities and received additional treatment for his eye. A second surgery was performed at Roosevelt Hospital in Manhattan, but he has never regained vision in his left eye.

On cross-examination, claimant was measured for his height (69 inches, or 5' 9") and arm length (27 inches). According to claimant, the photographs marked as Exhibits M, L and K did not appear to reflect the area in the Clinton Annex where his accident occurred, whereas Exhibits N, O, P, Q, R, S, T, and V seemed to accurately represented the area (Tr, 261).[2]
In these pictures, he explained, the water-retaining wall and the floor color are the same as in the shower room that he had used.
Department of Correctional Services ("DOCS") Employees: Correction Officer Patrick Hicks testified that in August 1997 he served as the relief officer for the first shift (7:00 A.M. to 3:00 P.M.) in Building 14 and that he was the First Officer on the date of claimant's accident. With respect to the shower room, his duties were to unlock it, ensure that it was cleaned, and periodically check to make sure that it was safe and secure. He could not recall ever receiving any complaints about accumulations of water or unusual slipperiness in the shower room.
On the day in question, he first became aware of the incident when claimant approached the desk with another inmate. At his examination before trial, Correction Officer Hicks had identified this individual, presumably Gonzalez, as the porter. (Exhibit 35, p 8, line 21). This inmate stated that claimant had hurt his eye on the "clothing rack in the shower room" (Tr, 464). Officer Hicks directed them to report to the facility clinic immediately and made a notation in the unit's log book (Exhibit 19). He stated that he was somewhat suspicious of the incident and immediately contacted the House Sergeant, Sergeant Murtha, to report the incident to him.[3]

On cross-examination, Correction Officer Hicks stated that the officer's desk, where he was located, was about 20 feet away from the entrance to the shower room. Although he saw another inmate near the desk before claimant's accident, he did not observe anyone else going into or coming out of the shower room. From his desk, he could see the first room which contained only a bench, but he was not able to see into the second room where the showers were located. Correction Officer Hicks was not asked at trial to describe the towel rack that was in the shower room on August 28, 1997. At his examination before trial, however, he had described it as "a piece of wood with wooden dowels inserted in it" (Exhibit 35, p 20, lines 20-21). The dowels, he said, were "cylindrical dowels flattened at the end where they were cut (
id., p 21, lines 4-5). When he was shown photographs of the new towel rack at his deposition, Correction Officer Hicks noted that it had a shelf on top, whereas "I don't believe that the coat (sic) rack in 1997 had a shelf on it" (id., p 26, lines 21-22).
Correction Officer Jeffrey Bull testified that he was on duty in Building 14 during the 7:00 A.M. to 3:00 P.M. shift on the date in question. He was the second officer present and his primary job was to escort inmates who had to be accompanied to other parts of the prison. After the morning count, the inmates would go to breakfast, and when they returned, he would unlock the door to the shower room. The first was directly beyond a steel door leading from the main part of the building; this room was largely bare. The second room was entered from the first, through an open doorway, and contained the showers. These rooms would be cleaned by the porters in the morning before showers began. Officer Bull stated that he often walked through the steps with the porters, especially if they were new to the job, to make sure that the mats were cleaned and the proper cleaning materials were used. Although he did not work the later shift, it was his understanding that the showers were not cleaned after the evening shower period, between 10:30 P.M. and 11:00 P.M. All cleaning, therefore, was done under the supervision of the morning officer.

While he could not recall what happened with respect to cleaning on the morning of August 28, 1997, Correction Officer Bull stated that whenever he was on duty the shower room was always cleaned before any inmates were allowed to take their showers. He also indicated that if the porters or any other inmates saw problems with the shower rooms, they were free to report it to him. He could not recall receiving any such reports during the seven and one-half years he worked in this building. When shown the photographs in Exhibits 2 through 7, Correction Officer Bull said they accurately depicted the shower room except that they, and Exhibit D, showed a different type of towel rack. The rack in the pictures has a shelf and end brackets, whereas the towel rack that was in place in August 1997 did not have these features. This testimony was consistent with that given at his examination before trial, in which he stated that at the time in question the rack in the shower room was "a single board with dowels for hanging clothes on" (Exh 34, p 12, lines 5-6). The newer rack he described as having a "shelf on the top and the hangers, or dowels . . . were much, much smaller in diameter" (
id., p 21, lines 11-14). Correction Officer Bull also stated that there were mats, black with cut-out holes, in the area immediately in front of the shower heads, but there were no mats on the other side of the low water-retaining wall next to the towel rack.
Correction Officer Donald Julian testified that during August 1997 he was the First Officer of the building. His duties would include answering the phone, taking directions from supervisors within the facility, taking the building count, and overseeing general order and cleanliness of the building. He was not on duty on August 28, 1997, when his position was covered by Correction Officer Hicks. When he was on duty, in the morning he would do rounds, take sick call, and take the building count. He would then see that inmates reported to their designated areas for the day's activities. Officer Julian could not recall receiving any complaints about the shower area. He indicated that the officer's desk area was located in the middle right-hand part of the building, near the entryway and the TV room. From the desk, he was able to see into the shower rooms, both the first room and the second room, where the actual showers were located. He could see only part of the second room, but he was close enough that he could usually hear anything that was transpiring there.
Correction Officer Byron Wing, who served on occasion as an assistant to the Fire and Safety Officer in August 1997, received a call about the incident in which claimant was injured and immediately went to the Building 14 shower room. His purpose was to look for any blood and to check the towel rack. There was no blood on the towel rack. Having heard claimant's account of the incident, he stood on the water-retaining wall and leaned forward as he believed claimant would have done. He fell, instinctively putting his hands out in front of him, and observed that his head came out well below the level of the towel rack, even though he is slightly taller than claimant. He found it necessary to put at least one foot on the floor in front of the towel rack in order to reach the wall at all. When asked to describe the towel rack he observed that day, Officer Wing stated that there were four to six pegs on the rack, each one having a flat end, but he did not measure their length.[4]

Sergeant Timothy Murtha was the Housing Sergeant on August 28, 1997, and his job was to respond and take charge of any incident in any of the buildings that he was covering. He was notified about claimant's injury by a radio transmission and immediately reported to Building 14, where he had a discussion with Correction Officer Hicks. He then went to the clinic and talked with claimant about what had happened. When he returned to Building 14, he directed all inmates to return to their cells or cubes and remain there. He spoke with ten to twenty inmates about what, if anything, they had observed, and each inmate in the unit was examined from the waist up for evidence of a possible fight. One inmate, named Campbell, had such marks.

Sergeant Murtha also went to the shower area, looked around, and found nothing unusual. Following standard procedures, he requested that Correction Officer Wing make an investigation. It was part of Sergeant Murtha's duty to reach conclusions about the incidents he investigated. In this instance he did not make a finding that there had been a fight but concluded that it was possible claimant's injuries had been caused in that fashion rather than in the manner he described (Tr, 515). Consequently, he made out a recommendation for involuntary protective custody (Exhibit B for identification).

Robert Bombard, who has been employed in the Clinton Correctional Facility's carpenter shop since 1972, also testified for defendant. He was able to identify the towel rack depicted in Exhibits D, 9, 10, and 11 as the towel/shampoo rack in Building 14 that he and the inmates working in his shop had built sometime after August 1997. He recalled that his direct supervisor, Robert Wickworth, told him either verbally or by e-mail, that the old one at that location needed to be replaced because the wood had rotted. Upon receipt of that order, Mr. Bombard went to Building 14, measured the towel rack on the wall and then returned to the shop where, under his supervision, the inmates built a new one. The new towel/shampoo rack was identical to the old one, he stated, except that it was built of pressure-treated wood, rather than spruce, so that it would not rot. Both towel racks, according to Mr. Bombard, included a shelf above the dowels used for hanging items and end brackets. The new towel rack was installed in exactly the same location as the earlier one had been
.
On cross-examination, the witness stated that he had looked for a copy of any written work order and had been unable to locate one. This was not unusual, he stated, because this was a relatively small item repair and the order may well have been given verbally or by e-mail. If he had a written work order, he would have signed it and returned it to his supervisor. The old towel rack, which he personally removed but which he had not made, was thrown into the dump, most likely the burn pile, and was no longer available. He was able to give the dimensions of the old rack, however, because he used the same measurements to make the new one. Overall dimensions of both racks were 5½ inches wide by 48 inches long, and the boards used to make it were 1½ inch thick. It is possible that the number of dowels was slightly different on the new rack because he may have changed the spacing of those elements slightly.

Robert Witkiewicz, Maintenance Supervisor at the Clinton Correctional Facility Annex for the past sixteen years, measured the current towel rack and found that the pegs, or dowels, were 1 inch in diameter and approximately 4½ inches apart. The shelf of the rack rested 2 inches above the pegs, and the distance from the outside of the water-retaining wall to the wall on which the towel rack was mounted was 46 inches. Mr. Witkiewicz stated that he had never taken the measurements of the old towel rack that was used in August 1997.

EXPERT TESTIMONY
Medical Testimony: Dr. F. Forrest Gabriels, an ophthalmologist,[5] who testified on behalf of claimant, stated that on August 28, 1997, he was called to examine claimant after the Albany Medical Center (AMC) Emergency Room resident had initially assessed his condition (see Exhibit 38). His contemporaneous records indicate being told that the injury occurred when claimant fell into a towel rack. Dr. Gabriels observed marked swelling of the eyelid and a ruptured eyeball with intraocular contents extrusion (Tr, 140-141). The diagnosis was corneal laceration, which he described as a linear horizontal split of the clear covering on the surface of the front of the eye, through the pupil and into the white part on each extreme edge (the sclera). The wound was about one-half inch long (Tr, 165). Surgery was immediately performed and consisted of repair of the ruptured globe, removal of the extruded material that had become nonviable, redepositing other portions of that material as best as possible, and restoring the eyeball's integrity and pressure. The surgery was performed by Dr. Gabriels and Dr. Robert Schultze, the resident physician, and it was Dr. Schultze who subsequently dictated the operative report. In Dr. Gabriel's opinion, this type of injury was not consistent with a blunt blow to the eyeball; nor was it likely to have come from a sharp instrument such as a knife or from fingers held straight and jabbed hard directly at the eye (Tr, 158, 159-160, 178). It was, however, consistent with falling against a round piece of wood. Bleeding would have been minimal, he stated.
Dr. Robert Schultze,[6]
the resident who had been involved in the surgery on claimant, testified on behalf of defendant. In his professional opinion, the events described by claimant, which include his falling against a dowel or towel rack, were simply not consistent with the injury he observed. If that account had been correct, he stated, one would expect the blow to have ruptured the thinnest part of the eye, the white areas on either side of the pupil and iris. Claimant's injury, however, was primarily in the center of the eye (Tr, 210). In addition, since the end of the dowel, as described to him, was not beveled or rounded off, one would expect to find some splinters or wood fragments in the wound, but none were found. He would also have expected, given the force of impact it would take for a dowel-type object to rupture claimant's eyeball, that claimant would have had some additional injuries, such as a twisting of the neck or scratches above the head (Tr, 212, 244).[7] The type of injury that he saw could have been caused by someone's hands, most likely someone who was trained in the martial arts. On cross- examination, Dr. Schultze acknowledged that he did not know the type of wood that had been used to make the dowels or the strength of that wood (Tr, 239).
Engineering Testimony: Antonius N. Sabo testified as an engineering expert on claimant's behalf. [8] He stated that he had visited the Clinton Correctional Facility Annex in October 2001, at which time he measured, sketched, and took photographs of the shower room. The shower room is entered from another room by way of an open doorway, and he counted only four showerheads along the far wall. The length of the room was 9 feet, 3 inches. There was a water-retaining wall along the length of the room. This wall was 6 to 8 inches across the top, 6 inches high on the side closest to the showers, and 7¾ inches high on the side that is closest to the other wall, where the towel rack was located. The measurement from the retaining wall to the wall holding the showerhead was 59 inches, and from the retaining wall to the wall holding the towel rack, 46 inches. If, as claimant testified, the dowels were six inches long, that would place them approximately 40 inches away from the water-retaining wall. The towel rack that was there on the day of his visit, however, had a shelf on top and dowels that were 1 inch in diameter and only 1¾ inches long. These dowels were 61 inches from the floor, and the top of the shelf was 64½ inches from the floor. He determined that this new towel rack was in the same location as the previous one had been because the holes and grouting in the wall tiles had not been changed. Mr. Sabo identified Exhibits 9 through 17 as photographs that he took on October 17, 2001.
In his opinion, the shower area in Building 14 was not properly laid out or properly maintained. Water was allowed to bounce over the water-retaining wall and onto the tiled area under the towel rack, which he referred to as the drying-off area. While the shower area has 1 inch by 1 inch square tiles, the area on the other side of the water-retaining wall has larger, unglazed tiles, 6½ inches by 6½ inches. These tiles provide a larger surface area on which water can pool, making it easier to slip on than on the smaller tiles. While the larger tiles are frequently used in kitchens and bathrooms, and it was not unreasonable to use them in this location, Mr. Sabo stated, there were better, safer alternatives available (Tr, 412).

The comparative difference of the height of the water-retaining wall was also cited as a problem. It was his opinion that someone who stepped up 6 inches to get onto the wall would expect to step down 6 inches on the other side. Instead, it was 7¾ inches down to the tiles in front of the towel rack. Also, the outer edge of this short wall was rounded, with a 1 inch radius, which made it more likely that someone's foot could slip than if the corner had a sharper angle.

The towel rack, in Mr. Sabo's view, was too low, particularly if, as claimant stated, the rack consisted of a simple board with dowels sticking out of it. "[Y]ou want to place that up high enough so that it's out of harm's way if somebody slipped and fell" (Tr, 357-358). He recommended 71 inches, a height that most people can reach. If the length of the dowels were shorter than the depth of the shelf, however, the shelf could be lowered somewhat. In reaching his opinion, Mr. Sabo relied on the New York State Uniform Fire Prevention and Building Code and the Architectural Graphics Standards from the American Institute of Architects. On voir dire he acknowledged that he did not know the age of Building 14 and thus could not be certain if any of the standards in these resources would be directly applicable to that structure or its shower room. He noted that in the latter volume, it is recommended that towel bars, a less dangerous feature, be four feet off the ground but that robe hooks be 6 feet 3 inches from the ground (Tr, 374).

A serious defect, in his opinion, was the absence of any shower wall or enclosure to keep water from the shower and water bouncing off a person's body from going onto and over the water-retaining wall. Possibilities that would have worked well in this situation would be rigid structures, either a door or a configuration of staggering walls, which he described as a little maze. Recognizing the need for correction officers to be able to monitor activity in the shower room, he suggested that these could be made of heavy plexiglass or glass bricks. Using the measurements referred to above, he calculated that in order for claimant to reach the towel rack to either retrieve his towel or put it back up to dry, the distance from the water-retaining wall to the towel rack (40 inches if the dowels were 6 inches long) would be too far for him to reach simply by extending his arm. Consequently, he would have to lean the top part of his body forward (Tr, 387). This would place him off balance and would also angle his foot, moving it from flat contact with the top of the retaining wall to an acute angle and thus much more likely to slip. As claimant falls forward, one or both feet would make contact with the tile floor in front of the rack but, because of the standing water, he would continue to slide toward the wall and the rack. In Mr. Sabo's view, therefore, the combination of the wet floor, the high towel rack, claimant's height of 5 feet 9 inches, and the absence of a skid-resistant mat were the major contributing factors to the accident (Tr, 392-394).

The towel rack itself constituted a dangerous condition, he said, because of the combination of its height and its design, with dowels sticking straight out and the absence of a protecting shelf over the top. In fact, Mr. Sabo stated, if the towel rack had a deeper shelf over the dowels, as was the case with the towel rack that he observed when he visited, he was of the opinion that claimant's eye "probably couldn't have reached the dowel" and he would not have injured his eye because he would have come in contact with the shelf or the brackets first (Tr, 416-417).

Keith D. Rupert, a licensed professional engineer,[9]
testified on behalf of defendant. In preparation for the trial, he stated, he had made a trip to Clinton to review the physical setting and talk to staff, reviewed the claimant's deposition transcript and watched most of his testimony, listened to all of Mr. Sabo's testimony, and had conversations with defense counsel.
Asked to describe the structure of the shower room, Mr. Rupert stated that when he visited it in December 2002, it consisted of two rooms: a drying/dressing room which was largely empty but had a bench in it, and the adjacent shower room. Both rooms had tile floors and floor drains, although the tile in the immediate shower area was of a different type, smaller size, than the tiles elsewhere. In the shower room, there was an area with the shower heads, a "shower curb" (referred to by other witnesses as the water-retaining wall), and an area for hanging towels, with a shelf for holding other supplies that would be needed for the shower. This room had tile floors and walls, and the light fixtures in the ceiling were water-resistant. In other words, this entire inner room was designed to be a "wet area," one that could be entirely hosed down for cleaning. Water was removed from it in two ways: liquid water was removed by way of four floor drains, two on either side of the water-retaining wall, and water vapor was removed by way of exhaust fans in the ceiling.

The two rooms together, according to Mr. Rupert, had three separate function areas. The shower area, on the far side of the water-retaining wall, was naturally for the actual showers and was the wettest area. The area next to it, on the other side of the water-retaining wall, was an intermediate area, designed for little more than a place to put soap, shampoo and towels, and space for inmates to stand while wrapping themselves in a towel and, in the process, having the greater portion of the water drip off them. The separate room, which was closest to and accessible from the main part of the building, was for further drying and perhaps dressing. When asked if, in his opinion, this design was consistent with good engineering design for an institutional shower facility in August 1997, he stated that it was.

There were no shower curtains or any other type of divider in the shower room, and Mr. Rupert said that this was appropriate, even necessary, because placing a curtain or dividing walls of any type of material would have posed hazards in an institutional setting. In addition, there was no need for any such divider, because the entire area, as noted above, was a wet area. In a "gang shower," one intended for use by more than one person at a time, any type of divider (fabric, plexiglas, plastic, or glass bricks) would visually obscure sight and prevent adequate supervision needed to prevent fights, inappropriate sexual behavior, or the transfer of contraband. In addition, any material used to create such divisions could pose additional dangers by being used as fuel for fires or shattered and turned into knives and other weapons.

In Mr. Rupert's opinion, there was actully no need for the rubber mats that were present under the showers themselves, much less for mats beyond the water-retaining wall near the towel rack. The immediate shower area is tiled with small ceramic tiles, 1 inch by 1 inch, which has sufficient roughness to prevent a person from slipping if they are merely standing under a shower or walking slowly away to reach the towel area. The mats, in his opinion, prohibit thorough cleaning, because it is unlikely they would be lifted completely away every day, and the rubber from which they are made can be extremely dangerous if shredded and burned. The mats were present, he was told, because the Inmate Liaison Committee had urged them based on the inmates' concern about mold if they had to stand directly on the tile surface.

With respect to the Building and Fire Prevention Code that was referenced by Mr. Sabo, Mr. Rupert stated that it was not effective in New York State until 1984 and did not apply to State facilities until 1990. The "Architectural Graphics Standards" from the American Institute of Architects, referred to by claimant's expert is not a "standard" made applicable by any law or regulation, he said, but merely a collection of the opinions of certain leading architects as to acceptable ways to construct various features of homes and buildings. To his knowledge, there is no mandated standard height for towel racks. A rack placed at the height recommended by Mr. Sabo would be difficult, perhaps impossible, for shorter inmates to use. There is also no mandated standard requiring or prohibiting shower curtains or other dividers.

Because of Mr. Rupert's role in providing overview of building safety for DOCS, he is informed by the agency's Health and Safety Officer, usually by e-mail, of any accidents that relate to the structure or physical features of DOCS' buildings. He could easily recall the incident in which claimant was injured because its facts were so markedly unusual. When asked if he was aware of any similar accident anywhere in the system prior to August 1997, he stated that he was not. He was certain that there was no identical event or even one involving an inmate slipping from a water-retaining wall. He was unable, however, to say that there had been no reports of accidents of any sort that took place in shower rooms, because he had not searched the records that broadly.

Prior to visiting the facility, Mr. Rupert had read claimant's deposition transcript and while in the Building 14 shower room, he tried to duplicate the movements that claimant had described: standing on the water-retaining wall and falling forward so that his left eye came into contact with one of the dowels of the towel rack. Mr. Rupert, who is 5 feet 8 inches tall and only slightly shorter than claimant, found it almost impossible to accomplish this feat without a great deal of twisting and turning and getting into postures that would have been unlikely, if not impossible, for a person in the middle of a fall. The primary obstacle was the shelf of the towel rack, which was above the dowels and stuck out further into the room than they did. He was told by a maintenance person (unidentified) that the towel rack that had been present in the shower room in August 1997 had been identical to the one he saw, with the only difference being that the new one was made out of pressure treated wood.

On cross-examination, Mr. Rupert acknowledged that, despite the dangers posed, there are shower curtains in some prison facilities, notably the women's prisons, for reasons of privacy. Curtains could also be used with reasonable safety in small, individual shower stalls because the danger posed by one person alone would be much less than that presented by several people showering at the same time. He has never, however, seen any floor mats used outside the immediate shower area.
APPLICABLE LAW
The State has a duty to maintain all of its premises in a reasonably safe condition (
Basso v Miller, 40 NY2d 233 [1976]), but it is not and cannot be an insurer against all harm. Consequently, negligence cannot be inferred solely from the occurrence of an incident (Mochen v State of New York, 57 AD2d 719, 720 [4th Dept 1977]). The same duty of due care that is owed to individuals who use the State's highways, public buildings, and parks is owed to those who inhabit the State's correctional institutions (see e.g. Kandrach v State of New York, 188 AD2d 910 [3d Dept 1992]).
Claimant has the burden of proving, by a preponderance of the credible evidence, that the State breached this duty of reasonable care and that claimant was injured as a result of that breach, and this burden is met by showing facts and conditions from which the negligence of defendant may be reasonably inferred (
Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992]). Specifically, claimant must establish: 1) the existence of a dangerous condition; 2) that the State either created the dangerous condition or had actual or constructive notice of this danger; 3) that the State failed to remedy the danger within a reasonable period of time; and 4) that the dangerous condition caused the injuries in question (Dapp v Larson, 240 AD2d 918 [3d Dept 1997] and cases cited therein).
Foreseeability is the key to determining whether there has been a breach of the duty of care.Whether a breach of duty has occurred . . . depends upon whether the resulting injury was a reasonably foreseeable consequence of the defendant'[s] conduct. "If the defendant could not reasonably foresee any injury as the result of his act, or if his conduct was reasonable in the light of what he could anticipate, there is no negligence, and no liability" (Prosser, Torts [4th ed], § 43, p 250).

(Danielenko v Kinney Rent A Car, 57 NY2d 198, 204 [1982], quoted in Gordon v City of New York, 70 NY2d 839, 841 [1987] and Moeske v Nalley, 295 AD2d 857, 858 [3d Dept 2002]).
DISCUSSION
In many respects, resolution of this case comes down to an assessment of claimant's credibility and, to a lesser extent, the testimony of the medical experts. The credibility of a witness is determined by the trier of the facts, because it is that judge or jury who sees and hears the witnesses (
Amend v Hurley, 293 NY 587, 594 [1944]). "[T]he appearance, attitude and demeanor of a witness upon being questioned and while before the court are matters to be taken into consideration in testing veracity and in determining the weight to be accorded his or her testimony" (People v Carter, 37 NY2d 234, 239 [1975], citing Matter of Nowakowski, 284 App Div 655, 657 [4th Dept 1954]). Observation of the witness's demeanor is often the single most accurate method of determining the truth (Boyd v Boyd, 252 NY 422, 429 [1930]). In the instant case, the Court did not find claimant to be an entirely credible witness.
Claimant and the medical witnesses provided the only direct evidence as to the manner in which the injury occurred. Although claimant's account was not precisely unbelievable on its face, the Court was simply not convinced that he was telling the entire truth about the manner in which he was injured. His manner was not persuasive or candid, and his demeanor was not always consistent with the testimony he was giving. In addition, neither Correction Officer Wing nor Mr. Rupert were able to reenact the accident as described by claimant when they stood at the same location.

As to the medical experts, there was no disagreement between them as to the nature of the wound to claimant's eye or, of course, as to the best treatment for that injury. Neither physician reported observing any other significant injury, beyond a swollen eyelid, to the area around the eye or to other parts of claimant's body. They disagreed, however, as to the type and degree of pressure, the nature of the blow, that would have been needed to cause the wound and the significance, or lack thereof, of the absence of any wood particles or trace in the wound itself. Of the two explanations, the Court found Dr. Schultze's to be more logical and credible. That does not necessarily mean that the explanation that Dr. Schultze postulated (an injury caused by someone's hands) was proven by the preponderance of the evidence to be the correct one,[10]
but it does mean that on the basis of the evidence and expert opinion presented, his conclusion that the incident did not occur as claimant's described was convincing. Claimant contends that he was propelled by his fall onto a flat, sawn-off wooden dowel, and Dr. Schultze explained in a credible manner why the type of pressure placed on the eye from such an event would most likely have resulted in a rupture, or ruptures, of the thinner outer parts of the eyeball rather than the center of the eye, which is where the one-half-inch-long laceration appeared. Even more significantly, from the moment of the injury, claimant, the porter, and the facility medical staff made every effort to keep the injury covered and "in place." This was only logical given the nature and location of the wound and the fact that the contents of the eye were being extruded. All witnesses who saw the older towel rack agreed that the ends of the dowels were simply sawed off, not beveled or rounded in any fashion. If claimant's eye was lacerated by that sawed-off dowel or a portion of the edge of it (as Dr. Gabriels postulated), it is simply incomprehensible that there would not be, within the wound itself, some trace of the wood, given the strength of the impact that would have been needed to rupture the eyeball. If claimant did not injure his eye in precisely the fashion he testified, then the rest of his account of the incident must be called into question. With the Court unable to believe in and accept claimant's account of events, the entire claim fails and must be dismissed.
The Court acknowledges an inherent discomfort in basing a decision, particularly one relating to such serious injury, simply on the credibility of a single witness and a medical expert's after-the-fact view as to the cause of a very messy injury. While these are valid considerations and may, in fact, constitute the best knowledge possible about what occurred (or didn't occur) in this case, they do not provide the kind of certainty or verifiability for which one would wish. If, however, the Court were to accept claimant's account of events and to credit the opinion of Dr. Gabriels over Dr. Schultze's, the end result – dismissal of this claim – would be the same.

The preponderance of the evidence established that the towel rack in place on August 28, 1997 in the shower room of Building 14 at Clinton Correctional Facility Annex was comprised of a piece of wood into which dowels or wooden sticks had been inserted, a rack with no shelf and no end brackets. Claimant, Correction Officer Hicks, and Correction Officer Bull were the three witnesses who most frequently saw that towel rack and their testimony was consistent and unequivocal in this regard.[11]
There was, as indicated above (see footnote 10), no credible evidence that there was another person in the shower room who could have inflicted the injury in a fight.
Even if the Court were to accept all evidence supporting that account, it would not be possible to hold the State liable for claimant's injuries because there was no proof of the most critical element of his claim: that the towel rack and/or the design of the shower room created a dangerous condition.

Although the Court allowed the expert testimony of Mr. Sabo, his analysis of the design and dangers of the existing shower room was nevertheless unconvincing. Every feature that he claims should have been included to make the room safer would actually have created additional problems or dangers. Mr. Rupert fully explained the problems, and dangers, that would accompany erecting rigid walls between the shower area and the adjacent area holding the towel rack. He also explained in a reasonable way why even the mats in the immediate shower area posed dangers, both as potential weapons and as a hindrance to cleaning. Although the shape of the water-retaining wall's corners was not mentioned by any witness other than Mr. Sabo, it seems probable, on a common-sense basis, that sharp corners on the edge of that wall could pose a far greater danger than the existing rounded corners, particularly since there was adequate room for a person to stand on the wall without putting his foot over the edge. The height difference between the inner and outer sides of the low wall are immaterial, as claimant was not injured when attempting to step off in a normal fashion. In contrast, the Court had no difficulty accepting Mr. Rupert's logical and workable description of planned functioning of the three areas constituting the shower room.

More importantly, claimant could not provide, because apparently it does not exist, any evidence that either the design of the shower room or the design and height of the towel rack created a dangerous condition. Given the number of inmates that made use of the shower rooms every day, the number of years the shower room has been in essentially the same condition, the length of time the earlier rack was in place (until it rotted), and/or the fact that prison inmates are not slow to either complain of injury or, for that matter, to institute lawsuits when injured, the fact that there was neither memory nor documentary record of any similar accident could only make what happened to claimant entirely unforeseeable. As noted above, if a defendant's actions are reasonable and reasonably safe in light of all the defendant could anticipate, there is no negligence and no liability.

None of the witnesses, including claimant himself, could point to any similar injury-causing accident. Given the willingness of Correction Officers Hicks and Bull to agree with claimant about the construction of the towel rack, even though such testimony might well be adverse to the State's interest, the Court is confident that they would have acknowledged other similar accidents, or related complaints, if they had any memory of such. In addition, had there been documentary evidence of such incidents, it would have been discovered. In addition to the statements of all of the resident officers that they were unaware of or could not recall any similar occurrences, the efforts of claimant's counsel to obtain records of such events produced no information (Tr, 413).

Even if claimant and claimant's medical expert are fully credited, therefore, the accident in which he was injured is most reasonably viewed as a "freak accident," something that is "unforeseen and unforeseeable" (
Derdiarian v Felix Contr. Corp., 71 AD2d 873, 876 [2d Dept 1979]), that occurs when there is nothing dangerous or defective to explain its occurrence (Przybyszewski v Wonder Works Constr., 303 AD2d 482, 483 [2d Dept 2003]), and that occurs in the absence of any breach of duty on the part of the defendant (Herman v Lancaster Homes, 145 AD2d 926 [4th Dept 1988]).
Alternatively, it would not be difficult to conclude that claimant's injury was something for which his own negligence was the sole proximate cause (
see, generally, Acovangelo v Brundage, 271 AD2d 88 [3rd Dept 2000]). It was clearly established, by claimant's own demonstration and by his expert's measurements, that persons of normal height standing on the water-retaining wall would be able to reach the towel rack only by extending an arm and bending their bodies forward. Such a move would put them off balance and would diminish the angle of their foothold on the retaining wall, making it easier for them to slip. Claimant had to both reach and lean forward when, using only one hand, he snagged the towel and underwear that were already hanging on a dowel. It would have been a much more dangerous maneuver, therefore, for him to lean forward and extend both arms to try to hook the towel onto the top of the dowel itself. This, however, is what claimant contends he was attempting to do. Had there been any significant accumulation of water in front of the towel rack (something that must be questioned, as claimant had been the only person to shower that morning), any reasonably prudent person would have elected either to step into the water, to wait for it to go down the drain, or to simply hold onto the towel and carry it into the adjoining drying room. Undoubtedly this is what countless other inmates had done over the years to avoid the possibility of an injury such as that suffered by claimant.
Because claimant failed to prove by a preponderance of the credible evidence that the State was negligent or that the shower room presented a dangerous condition, the Chief Clerk is directed to enter judgment in favor of defendant dismissing the claim.

Let judgment be entered accordingly.



June 30, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims




[1]Although claimant's counsel repeatedly requested copies of these photographs, the State was unable to locate them. At trial, the Court overruled a request to take a negative inference from the fact that the photographs were not produced.
[2]Exhibits K, L, and M are pictures of a separate room in front of the shower room, which is referred to below as the drying/dressing room. The actual shower room is to the left, through an open doorway. Claimant is correct, therefore, that the area shown in these three pictures is not the shower room where he was injured.
[3]Officer Hicks also identified Exhibit A, an Inmate Misbehavior Report, dated August 28, 1997, which he filled out on that date. Because a portion of this document contained his opinion, beginning with the words "I believe", there was considerable dispute between counsel as to whether it was admissible. Inasmuch as the content of the report is not critical or even particularly relevant to the resolution of this claim, it was not received into evidence or considered by the Court. The Court makes the same ruling with respect to Exhibit B, an Involuntary Protective Custody Recommendation.
[4]At his examination before trial, this witness could not recall if the ends of the dowels were rounded or flat. On neither occasion did he mention the rack having a shelf.
[5]Dr. Gabriels has a private practice in Albany. He attended medical school, an internship in the medical/surgical area, and a three-year residency in ophthalmology at Albany Medical College and became Board certified in the early 1970s. He is a member of the American Academy of Ophthalmology, a member in county and state medical societies (see, Exhibit 21), and has taught courses at Albany Medical College and elsewhere. He estimated that he has performed an average of three surgical operations a week throughout his career.
[6]Dr. Schultze, who graduated from medical school in 1990, specializes in ophthalmology and for the past three to four years has been working as a cornea specialist. He is Board certified and has performed well over 1,500 surgical procedures in his career. He is Assistant Professor of Ophthalmology at Albany Medical Center and Co-Director of Cornea and Refractive Surgery (see Tr, 183; Exhibit W).
[7] In questioning Dr. Schultze on this point, counsel made certain that his opinion was based on the towel rack as it was reported to have existed at the time of the accident – a plain wooden strip to which broom-handle-size dowels were affixed – not the replacement rack shown in the photographs, which had a shelf above the rack and brackets holding up the shelf (Tr, 243-245).
[8]Mr. Sabo attended Alfred University, obtaining a degree in ceramical engineering with a minor as a biomedical ceramicist. This field covers tiles, making bricks and dishes, building laboratories, and more complex work with computer superconductors and others, as well as medical items. A good deal of his work there was in the area of mechanical engineering. He attended graduate school at Cornell University Veterinary School and the State University of New York at Buffalo. As part of the Allegheny Sheriff's Department, he attended accident reconstruction courses at the police academy and, at the same time, taught in the Mechanical Engineering Department at Alfred University. He has worked for AVX Ceramics Corp., in the mechanical engineering department, and then for Hysol Corporation, where he was first an assistant plan engineer and then the Safety Engineer, responsible for the company's compliance with OSHA regulations. At present, he is working toward a master's degree in Mechanical Engineering. The Court overrules defendant's objection to allowing Mr. Sabo to testify and accepts his testimony as set forth above.
[9] Mr. Rupert, a DOCS employee, has a B.S. degree in Mechanical Engineering from Syracuse University and an MS in Magerial Systems from Clarkson University. He is the DOCS Supervisor of Technical Services, the agency's technical engineer, working in the Division of Facilities Planning and Development. In addition, he is the sole proprietor of CRK Engineering, a private firm that designs buildings and houses. At the time of trial, he was completing requirements for becoming a licensed architect and was certified by the State to enforce the Building Code. (See Exhibit Y.) In his work for DOCS, he is responsible for the reconstruction and maintenance of all 70 correctional facilities, designs and oversees construction of new facilities and additions, taking into account the programmatic aspect of each facility. In connection with the Office of General Services, which performs most of the work, he specifies products, materials, maintenance procedures, and activities. He is also responsible for assuring compliance with applicable construction and safety standards.
[10] Defendant failed to produce sufficient other evidence on which the Court could base a finding that another inmate had been in the shower room with claimant. On the other hand, it is not defendant's burden to prove an alternative theory but, rather, claimant's burden to prove his allegations.

[11] The Court does not question Mr. Bombard's honesty but must, given the testimony of these other witnesses, question his memory of an item that he saw apparently only once or twice. His testimony was that he replicated the old rack when constructing the new one, and he did in fact replicate the earlier towel rack's dimensions and general function. He apparently added, perhaps without significant thought, additional features that made it both safer and more useful. Based on his other testimony, it appears that the only similar towel rack that was constructed under Mr. Bombard's supervision also incorporated the features of the shelf, the end brackets, and the shorter dowels.