New York State Court of Claims

New York State Court of Claims

ASHLEY v. STATE OF NEW YORK, #2005-018-452, Claim No. 105854


After a trial on the issue of liability, the Court finds the Claimant and Defendant each 50% liable for the injuries sustained by Claimant when he fell down stairs at the Oneida Correctional Facility.

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:
ROTHSCHILD LAW FIRM, P.C.By: Martin J. Rothschild, Esquire
Defendant's attorney:
Attorney General of the State of New York
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 28, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, while an inmate at the Oneida Correctional Facility (hereinafter OCF), fell on an exterior stairway leading into Building 16, M Dormitory, on October 24, 2001. He seeks recovery for the injuries he sustained from the fall. The trial was bifurcated and this decision relates to liability only.

Claimant testified that he had been an inmate at OCF from July 2001 until after his accident. On October 24, 2001, Claimant was at his program at the masonry building. When the program ended, he returned to Building 16, his dormitory, for the afternoon count. Between 3:20 and 3:30 p.m., he arrived at the exterior staircase[1]
which led to into his dorm. These were the only stairs the inmates were allowed to use to enter the building. There were five steps and a landing. He proceeded up the stairs catching his foot on the fifth step. As he lost his balance, his hand came off the railing. Claimant was unable to grab it again as he fell because the railing was bent outward. He landed on the third and fourth steps injuring his right hand. He immediately told Correction Officer Roberts of his accident but was not sent to the infirmary for treatment until after the count.
Claimant acknowledged using the stairs six to twelve times per day since July, and he had noted the condition of the stairs and said he was lucky he had not previously fallen. After he fell, he looked at the stairs and saw the anchor bolts from the missing nosing.[2]

Anthony Macri, a civilian who worked in the Maintenance Department at OCF, testified that he was familiar with the staircases at OCF. Most staircases are cement with metal nosings. Due to the winter weather, the cement will deteriorate and loosen the nosings. It was common for his department to receive work orders to repair or replace the nosings. If the nosings were usable, Mr. Macri and his inmate crew would reattach them using Tap-Con masonry anchors.

Mr. Macri identified two work orders, the first having been received by the maintenance department on September 5, 2001,[3]
and the second on October 25, 2001,[4] requesting that repairs be made. Both requests were for the repair of the front stairs going into Building 16 and, according to Mr. Macri, the second work order referred back to the first. Mr. Macri said the nosings were not in good condition, and they repaired or replaced three nosings on October 25, 2001.
On cross-examination, Mr. Macri described the work order process. Anyone at the facility can request repair work if they notice the need for it. Inmates must have correction officers complete and approve work order requests. After the approval, the form is taken to the main building by the correction officers when they leave at the end of their shift. The forms are picked up each morning, taken to the maintenance department, and assigned a number. The work orders are signed and dated by the head craftsman upon completion of the work requested. On occasion, the maintenance supervisor assigns the work order as priority. In an emergency, sometimes the work order form is completed after the work is done. There is no set time frame for the work to be completed once a work order is presented. In this case, Mr. Macri was not told the steps were a priority. Mr. Macri did note that issues of inmate health and safety, such as a dangerous staircase, would be a priority. He also said the receipt of a work order may be delayed if an officer forgets to put it in the box, in the main building, and then has time off. The date received reflects the date the maintenance superintendent gets the order. In this case, the first work order to repair the stairs to Building 16 was received on September 5, 2001. The second work order was approved on October 23, 2001, the day before Claimant fell, but the maintenance department did not receive the work order until October 25, 2001. The repair work was completed that day.

Richard Narolis testified on behalf of Claimant. Mr. Narolis was an inmate at OCF when Claimant had his accident and worked on Mr. Macri's crew. He had been a general contractor before his incarceration and had experience with installing and repairing cement stairs and nosings. At OCF, he frequently worked on stairs. He explained that when the steps were poured, the bolts holding the nosings were mounted when the cement was wet. As the cement deteriorated, the nosings would loosen and the bolts would deteriorate also. Tap-Cons would be used to reattach them.

Mr. Narolis was on the crew that repaired the stairs at Building 16. He recalled that on the fifth stair and another stair the nosing was gone, and the anchor bolts were visible and rusted. On another stair, the nosings were loose because the concrete underneath was broken. Mr. Narolis testified that the stairs had been in this condition since he arrived at OCF in November 2000. Mr. Narolis said no warnings were ever posted regarding the condition of the stairs nor had access to the stairs ever been restricted.

To complete the necessary repair work, Mr. Narolis was told to remove the nosings on the stairs at Building 16 and not replace them. It was the only time he was ever instructed to remove, but not replace, the nosings.

From Mr. Narolis' observation, the lack of nosings left a 1/2 inch depression in the concrete approximately 3 inches back into the stair tread and extending across the whole top of the stair tread. Mr. Narolis did not know why the nosings were not replaced the same day. On occasion, the proper materials may not have been in stock but he recalled that there were always nosings in stock.

The State called David G. Hughes whose title, in October 2001, was Plant Superintendent B at OCF. In this position, he was responsible for all maintenance at the facility. His immediate subordinates were Joseph Frazier and David Panzika, Maintenance Supervisors 3. Their job was to oversee the craftsmen.

Mr. Hughes testified that the facility had two types of work orders: routine and emergency. In an emergency such as flooding or fire, action would be taken based upon a telephone call, and the work order would be written later. Typically, he would not be informed of routine maintenance needs unless considered a safety hazard. He testified that between November 2000 and October 2001, another inmate fell on the first step of Building 16 because the nosing was loose. Mr. Hughes was advised of this incident because maintenance did not have the appropriate materials to repair it. He considered the loose nosing a safety and priority issue, which should have made the stair repairs a priority.

At the time of Claimant's accident, Joseph Frazier was on duty as the Maintenance Supervisor 3. Mr. Frazier testified that his position was below the Plant Supervisor and above Maintenance Supervisor 1. He identified the floor plan of Building 16[5]
and a form showing the housing capacity of each dorm[6] of the facility at the time of Claimant's accident. Mr. Frazier testified that routine maintenance was done on the exterior staircases of the facility on a regular basis. He also explained the process for submission of work orders and indicated that, typically, there was no reason for a delay in replacing nosings. A delay could be due to a lack of materials, but he was not aware of any shortage of materials from November 2000 through October 2001. Mr. Frazier reported to the scene after Claimant fell but, in his opinion, the condition of the stairs did not create a health or safety issue nor necessitate the closure of the stairway. The condition of the stairs was readily visible. He testified that some repair work was required, and he recalled that he directed that the nosing on the third stair be removed. He did not recall anything specific about the fifth step.
On cross-examination, Mr. Frazier said that he could not recall, in his experience, requiring any more than three to four days to complete a work order for stairs. He was unaware of the existence of two work orders for the repairs to this stairway at the time of Claimant's fall.

The State also called Marty Wayne Morris, the Fire and Safety Officer at OCF. Once a month he canvasses the facility, including stairways, checking for fire and safety hazards. He said the winter weather does take its toll on the exterior stairs. During his reviews of the facility, he has never noted a condition on the stairs of Building 16 which would warrant closure of the stairway.

Mr. Morris testified that not all work orders regarding stair maintenance get his attention. If there is no fire or safety issue he does not get involved. Routine maintenance is not a fire and safety issue. In his opinion, a 1/2 inch depression in a stair tread, due to a missing nosing, is not a dangerous condition. Mr. Morris believed the bend in the railing on the stairs would not be a hazardous condition either. His concern with railings is whether or not they are attached and intact. He also testified that if he had received a copy of the submitted work orders,[7]
he would have gone to check the stairs; but he did not become aware of the work orders until his deposition in this matter. Mr. Morris reiterated that not every slip and fall possibility rises to the level of a fire and safety concern.
Like any private landowner, the State owes a duty to maintain its property, including its correctional facilities, in a reasonably safe condition under the circumstances (
Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241). The State, however, is not an insurer, and negligence will not be inferred solely as a result of an accident (see Killeen v State of New York, 66 NY2d 850, 851; Mochen v State of New York, 57 AD2d 719, 720). It is Claimant's burden to show that a foreseeably dangerous condition existed which the State either created or of which it had actual or constructive notice, yet failed to correct within a reasonable period of time, and this condition was the proximate cause of Claimant's injuries (see Herman v State of New York, 63 NY2d 822, 823; see also Gordon v American Museum of Natural History, 67 NY2d 836). The proof establishes that Claimant was injured when he fell on October 24, 2001, as the result of tripping on the depression in the concrete, on the fifth stair tread of the staircase leading to the inmate entrance of Building 16, Dormitory M. The State knew of the need for repair on the stairs leading into Building 16, Dormitory M as early as September 5, 2001. No explanation was given for failing to complete the work required before Claimant fell. There is no question that the State had timely awareness of the condition of these stairs and that Claimant was injured as the result of his fall. The issue here is whether or not the condition of the stairs was dangerous or whether the defect causing Claimant's fall is too trivial to impose liability (see Trincere v County of Suffolk, 90 NY2d 976).
At the time that Claimant fell, he was the second inmate to have fallen due to the condition of this stairway. On the fifth stair, on which Claimant fell, the nosing was missing and a 1/2 inch depression was left in the deteriorating concrete. A shoe catching in such a depression on a stairway is a prescription for falling - flailing at the very least. The remaining stairs were in no better condition, either missing the nosing or the existing nosings being loose. The condition of this stairway as described, being the only means of access to Dormitory M for the inmates housed there, leads this Court to conclude this stairway constituted a dangerous condition. The State had prior notice of how dangerous this stairway was from the earlier incident in which an inmate fell and from the September 5, 2001 work order. No satisfactory explanation was given for the six-week delay in making the necessary repairs.

Despite the poor condition of these stairs, Claimant used these stairs several times a day for almost three months prior to his fall. The condition of the stairs was readily apparent and should have alerted Claimant of the need to use reasonable care. As a result, the Court finds the Defendant 50 percent liable and Claimant 50 percent liable for his injuries. A trial on the issue of damages will be scheduled. LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

January 28, 2005
Syracuse, New York

Judge of the Court of Claims

[1]See Exhibit 1-4.
[2]A nosing is the usual rounded edge of a stair tread that projects over the riser (Merriam-Webster Collegiate Dictionary, 794 [10th ed].
[3]Exhibit H.
[4]Exhibit I.
[5]Exhibit J.
[6]Exhibit K.
[7]Exhibits Hand I.