This Claim seeks damages for injuries sustained by Claimant, at all times
relevant an inmate, when he allegedly slipped and fell in the bathroom of his
dormitory. Claimant alleges the Defendant was negligent in failing to maintain
the bathroom floor in a reasonably safe condition. The trial of this Claim was
bifurcated and this Decision pertains solely to the issue of liability.
Claimant, Charles Streeter testified that on February 14, 1999 he was injured
at approximately 7:00 p.m. when he slipped and fell in the bathroom of his
dormitory at the Clinton Annex
. Claimant, who arrived at the correctional facility in late 1998, testified
that he complained many times - "because I like to
- before his accident about other
inmates not cleaning up their messes in the bathroom near the sinks. Claimant
described the condition as a lot of soap and water on the floor, all day, every
day, around the slop sinks, the bathroom sinks and just about everywhere.
Claimant never saw anyone correct the problems nor did he ever see rubber mats,
other nonslip devices or cones used in the area of the slop sink. Claimant
filed his first formal grievance after his fall.
Claimant testified that he usually used the bathroom "three to four times a
day" and utilized a diagram of the bathroom (Exhibit 12) to indicate the spot
in front of the slop sink
where he fell. To reach that spot, Claimant stated he left his cube and
proceeded down the aisle and made a right turn at the television room to enter
the bathroom. Upon entering the bathroom, the slop sink was to the right inside
the bathroom door. Claimant testified he took a few steps into the bathroom
"slipped, flew up into the air" and landed on his back, first using both wrists
to break his fall. After sitting dazed for a minute, Claimant observed "soapy
water in the area" and then left the bathroom to report his injury to the
correction officer. There were no signs or warnings in or near the bathroom
prior to Claimant's fall.
On cross-examination, Claimant testified following his fall there was soap and
water on his clothing while his footwear had "like a liquid soap" on them.
Defense counsel then read portions of Claimant's deposition, which highlighted
Claimant's testimony that there were "little pieces of soap all over the floor"
and that there was "no water" that Claimant was aware of where he fell.
On redirect examination, Claimant's counsel likewise read portions of
Claimant's deposition, which highlighted Claimant's testimony that there was
"soap or water" that caused his fall.
Claimant introduced the deposition testimony of Correction Officers Roberts and
Fitzgerald who were on duty at the time of Claimant's injury through their
depositions (Exhibits 3 and 4, respectively). CO Fitzgerald testified that when
he saw leaks or clogged toilets during his tenure at Clinton Annex he would
initiate the necessary action to have the problem corrected. He further
testified that Defendant used inmate porters to clean spills and mop the floors
and that the porters had available to them "wet floor" signs. Both correction
officers denied knowledge of other accidents or of any problem in the bathroom
on February 14, 1999. CO Fitzgerald also testified that he made "rounds"
approximately once every hour, which included checking the bathroom.
Negligence will not be inferred, the State is not an insurer and liability will
not be imposed solely from the happening of an accident (
see Killeen v State of New York
, 66 NY2d 850, 851; Condon v
State of New York
, 193 AD2d 874). To be successful, Claimant must prove
that the State as landowner, either created a dangerous condition or had actual
or constructive notice of the condition but failed to correct it within a
reasonable time (Dapp v Larson
, 240 AD2d 918). It is well settled that
to constitute constructive notice, "a defect must be visible and apparent and it
must exist for a sufficient length of time prior to the accident to permit a
defendant's employees to discover and remedy it" (Gordon v American Museum of
, 67 NY2d 836, 837). It is also well settled that a
property owner who has actual knowledge of an ongoing and recurring dangerous
condition can be charged with constructive notice of each specific reoccurrence
of that condition (see Petri v Half Off Cards
, 284 AD2d 444;
Osorio v Wendell Terrace Owners Corp
., 276 AD2d 540; Benn v Municipal
Hous. Auth. for City of Yonkers
, 275 AD2d 755). Whether a condition is
dangerous requiring the landowner to take remedial measures depends upon the
context or environment within which the condition is found. For instance,
evidence of a wet floor at the edge of a pool, without more, is not proof of
negligence; such a condition would be expected and incident to the use of the
area (see Sciarello v Coast Holding Co. Inc.
, 242 App Div 802,
267 NY 585; Valdez v City of New York
, 148 AD2d 697; Maull
v State of New York
, 16 Misc 2d 499, 503; see also Herrera v Piano
125 AD2d 548).
Here, there was no evidence to suggest, nor does the Court find, that the
Defendant was on actual notice of the particular condition Claimant alleged
existed on the evening of February 14, 1999. Claimant has failed to adduce any
proof that there was a leaking pipe, other malfunction or event of which the
Defendant was aware and which Defendant failed to either timely repair or place
warnings signs/pylons, as Claimant suggests, to have prevented Claimant's fall
compare Hassan v State of New York
, Ct Cl, Hanifin, J., Claim No.
100881, UID #2000-004-015, November 22, 2000). Rather, Claimant's premise is
that through careless use of the slop sink inmates would routinely permit soap
and water to accumulate upon the floor in the area in front of the slop sink and
thus create a recurring dangerous condition, which the Defendant should have
remedied with nonslip mats as in the shower area (Claimant's memorandum of Law p
. The only testimony regarding the alleged
condition of the slop sink area, and the allegedly recurring problem, is that of
Claimant. Similarly, the only evidence that this condition was reported is also
that of Claimant. Upon consideration of all the evidence, including listening
to the Claimant testify and observing his demeanor, the Court declines to credit
Claimant's testimony that the alleged dangerous condition existed - if at all-
to the extent portrayed by Claimant. The Court finds Claimant's testimony to be
inconsistent and self-serving. Moreover, the general knowledge exhibited by the
correction officers is not sufficient to establish actual or constructive notice
of the specific condition that caused Claimant's fall (Gordon v American
Museum of Natural History
, 67 NY2d 836, 838, see also Gloria v MGM
., 298 AD2d 355, 356 [general awareness that bar patrons spill
drinks on floor does not establish actual or constructive notice of particular
condition that caused plaintiff's fall]). As such, the Claimant has likewise
failed to establish the Defendant had constructive notice of the alleged
Based on the foregoing, the Court finds that Claimant has failed to prove by a
fair preponderance of the credible evidence that Defendant had actual or
constructive notice of a dangerous or defective condition that may have existed;
therefore, the Claim is dismissed. The Chief Clerk is directed to enter
Any motions on which the Court previously reserved judgment or which were not
previously decided are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.