New York State Court of Claims

New York State Court of Claims

STREETER v. THE STATE OF NEW YORK, #2005-028-001, Claim No. 102595


Claim dismissed. Claimant failed to establish that Defendant had either actual or constructive notice of the alleged dangerous/defective condition.

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:
BY: Frederick McGown, IIIAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 31, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

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[1]
. Claimant, who arrived at the correctional facility in late 1998, testified that he complained many times - "because I like to complain"[2] - 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[3]
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 Natural History, 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, affd 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 6)[4] . 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 Emerald Enters., 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 dangerous condition.
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 judgment accordingly.

Any motions on which the Court previously reserved judgment or which were not previously decided are denied.


January 31, 2005
Albany, New York

Judge of the Court of Claims

[1] The Clinton Annex is part of the Clinton Correctional Facility.
[2] Unless otherwise indicated all quotations are taken from the audio recording of the trial.
[3] According to Claimant, the slop sinks were used by inmates to wash their dishes, who provided their own soap for this activity.
[4] The Court has not considered the attachments to Claimant's memorandum which are three photographs which were not received into evidence on the trial of this Claim.