Daniel Geraghty alleges in Claim number 107343 that Defendant's agents
negligently created a dangerous condition in the Downstate Correctional Facility
(hereafter Downstate) shower area floor causing Claimant to slip, trip and fall
and suffer injury. Trial on the issue of liability was held on August 16,
Claimant testified that he arrived at Downstate from Rikers Island on October
7, 2002 to start serving his State sentence. On October 10, 2002 he was allowed
to take his first shower since the shower taken during the intake process -
which included a "delousing procedure"
and issuance of new "State greens" - on October 7, 2002. After lunchtime chow
that day, there was a loudspeaker announcement that the whole company - 36
inmates - would be taking showers. The order in which the showers were to be
taken was announced as well. One cell at a time would be unlocked, starting
with the lower numbers first. Only 5 minute showers would be allowed.
Claimant explained that in cell block A, there were 6 tiers with 6 cells on
each tier. Each tier has one shower stall. His cell - number 25A - was the
lowest number on his tier, therefore he would be taking - and did take - the
first shower on his tier. To prepare for the shower, he stripped down to his
t-shirt and boxers, and wrapped a towel around his waist. He claimed that it was
a facility rule that his towel be wrapped around his waist.
The shower stall was outside his cell door approximately 12 feet away. The
shower area itself is a stall inset, recessed in the wall, just as the cells are
recessed. He indicated that there is a shower curtain of "window shade material
that is nailed on a piece of wood. It does not go all the way up or down";
covering only the mid-section of the person standing in the shower.
When he heard his cell door "clicking", he knew it was his turn to take a
shower. He proceeded to the shower with his change of underwear in one hand and
a bar of soap, and his towel wrapped around him. His feet were bare. The floor
outside the shower itself was dry. After hanging up his change of clothes and
towel, and removing his clothes, he "lathered up" and took a 3-4 minute shower.
He then shut off the water, dried off properly - including his feet - and put
on his new boxers and t-shirt. He again wrapped the towel around himself, moved
the curtain aside and stepped out of the shower area onto the tier floor.
He said: "I might have taken maybe 2 steps at most before my foot slipped out
from under me and I fell backwards." There were no mats in the shower or on the
floor outside the shower where he fell. He said that he was caused to fall by a
wet floor. He opined that the floor was wet because the shower nozzle was
shooting water in every direction as he showered, and the shower curtain did
not keep water in the stall.
After he slipped, he got up from the ground, went back to his cell and put on
his remaining clothes. He then reported the incident to the correction officer
on duty, Officer Simpson. He advised Officer Simpson that he fell coming out
of the shower, and injured his wrist. Thereafter, he was escorted to the
infirmary for treatment as well as to an outside hospital.
When he returned to the prison after his hospital and infirmary stay, he was
placed in a different cell block, where he noted that porters put towels on the
floor outside the shower area.
Claimant averred that although one can purchase shower slippers from the
commissary, commissary privileges are not afforded "by rule" until 14 days after
reception at the facility. Shower slippers are not part of the State issue gear
given to prisoners at intake. He said that he asked about purchasing shower
slippers prior to the shower, and it was then he learned that he could not use
the commissary for 14 days.
On cross-examination, Claimant confirmed that he had walked in the area before
and knew what it was like. He claimed that he was "not rushing" when he got out
of the shower, even though on direct examination he asserted that they were
advised they would only get 5 minutes for a shower. As he showered he could see
water was going "everywhere"; but he would not agree that he saw water going out
on the floor past the curtain. He claimed he did not know water was going out
past the shower stall.
On redirect examination, he said he "was looking straight ahead" when he pushed
aside the curtain and stepped out, and was "focused on . . . [his] cell door."
He said that he was holding wet clothes and soap in his hands.
Correction Officer Walter Simpson confirmed that he was the officer in charge
at cell block A on October 10, 2002. When Claimant called out to him about the
incident, he came out of his station, saw Claimant holding his wrist, and called
the medical department for help. Claimant told Officer Simpson that he slipped
and fell. Officer Simpson did not inspect the shower area initially - since he
"figured it was just water" based upon what Claimant told him - and was more
concerned with getting medical help.
During the 3 days since Claimant's initial reception at the facility, Officer
Simpson explained that there was a lot of activity with continued intake
procedures, including call outs for medical examinations, and psychiatric
examinations, all preventing the opportunity to allow showers. By the third
day, things had "calmed down sufficiently" so that he could give the inmates
time to shower. When and for how long showers are given are at his discretion.
He indicated that he "tries to give them 5-7 minutes per prisoner."
Officer Simpson confirmed that there is no policy directing that shower shoes
be included with the other State issue clothing given to inmates at reception.
He did not know why shower shoes are not given. For 6 days, he said, inmates
are not eligible to make purchases at the commissary, and then may make
purchases only if there is money in their accounts. For inmates transferred from
Rikers Island it takes "on average about 2 weeks" before money is transferred
into their accounts. Although Officer Simpson knew that shower shoes "did not
cost a lot," he did not know how much they cost.
On cross-examination, the witness explained that the flooring outside the
shower stall where Claimant fell is "a blueish, grayish color, and somewhat of a
rough surface. It is bumpy with little nodules." He noted that it is a
"common color" throughout this and other facilities, just as the "shower set-up
is identical" throughout the blocks. Officer Simpson repeated that Claimant was
the first in his tier to shower and that the floor outside was dry when Claimant
went in. He said he had spent 8½ years at Downstate working at cell block
A and other blocks. To his knowledge, there had been no prior accidents in
shower areas anywhere.
On redirect examination, he agreed that there are no mats inside or outside the
shower areas, nor are there any towels.
On re-cross-examination, Officer Simpson agreed that Claimant did not ask for a
towel, and agreed that if Claimant had asked for a towel he would have given him
one as that was his practice.
The Court has also reviewed documentary evidence submitted on consent. What
appears to be the Central Office Review Committee's (hereafter CORC) decision on
Claimant's grievance [
Exhibit 1] - although there was no linking testimony to establish
that fact - provides in part that there was "no follow-up investigation" by the
"fire and safety officer", who "did not determine that any corrective action was
necessary," as had been testified to by Officer Simpson. [See
The decision also provides that "the showers have a lip at the bottom to prevent
excess water from accumulating on the floor outside of the shower and that the
floor is graded towards a drain." [id.
Another grievance from a
completely different facility was also submitted on consent without any
connective testimony, presumably to infer notice, [Exhibit 5] although it might
have been included because it was referred to in the Superintendent's decision
on Claimant's grievance. [Exhibit A]. In the Superintendent's decision on
Claimant's grievance, upheld in the CORC determination referred to above
Exhibits 2 and A], it is stated: "According to information received
from the IGP supervisor at Downstate Correctional Facility, shower slippers are
not listed as standard issue in Directive #3081. According to a previous CORC
decision, shower mats will not be put in shower areas. The shower curtin
in question is the same that is used throughout the
facility, and is deemed appropriate. Also the shower head has been checked and
was dispensing water in the proper amounts and direction." [Exhibit A].
Two other logbook or journal-type entries were submitted without explanation as
well. [Exhibits 3 and 4].
No other witnesses testified and no other evidence was submitted.
DISCUSSION AND CONCLUSION
Although the State has a duty to protect inmates from foreseeable risks of
harm, it is not the insurer of inmate safety. Its duty is to exercise
"reasonable care under the circumstances . . ." [
Basso v Miller
, 40 NY2d 233, 241 (1976)], to protect against foreseeable
risks of harm. Assuming that the State did not create the dangerous condition,
a Claimant must show that the State had actual or constructive notice of the
condition and failed to act reasonably to remedy it. Gordon v American
Museum of Natural History
, 67 NY2d 836, 837 (1986). Creation of a dangerous
condition constitutes actual notice. Lewis v Metropolitan Transportation
., 99 AD2d 246, 249 (1st Dept 1984), affd
64 NY2d 670
With respect to constructive notice, any ". . . defect must be
visible or apparent and it must exist for a sufficient length of time prior to
the accident to permit . . . [a defendant] to discover and remedy it . . .
)." Gordon v American Museum of Natural History
To establish a prima facie case of negligence the following elements must
exist: (1) that defendant owed the claimant a duty of care; (2) that defendant
failed to exercise proper care in the performance of that duty; (3) that the
breach of the duty was a proximate cause of claimant's injury; and (4) that such
injury was foreseeable under the circumstances by a person of ordinary prudence.
Based upon the somewhat inconclusive evidence present here, if there was a
dangerous condition created by a wet floor outside the shower stall, there has
been no showing that the State was aware of the condition and failed to correct
it. It is only those foreseeable dangerous conditions which are not remedied
within a reasonable time which may establish liability on the State's part, [
Gordon v American Museum of Natural History
that proximate cause and actual damages are proven as
While it is certainly foreseeable that water might accumulate outside a shower
stall that does not have a shower curtain or shower door that covers more than
the mid-section area of the shower opening - as described by Claimant - all
foreseeable conditions are not dangerous simply because they are foreseeable.
From Claimant's own testimony it is apparent that he knew that water would
emerge and did emerge from the shower head, that the shower curtain only covered
a portion of the shower opening, and that there were no observable mats. He
said that he looked straight ahead as he exited - focusing on his cell - and
thus did not proceed as would a reasonable person walking in a potentially wet
area by looking where he was going. There was no evidence that there was water
accumulating to an observable or measurable depth. The surface area where
Claimant fell was described as rough, and other than Claimant's inattention,
Claimant has not established the mechanics of his fall or that the friction
provided by the surface area was somehow deficient.
No evidence of prior accidents at this location was submitted. Indeed Officer
Simpson testified that in his 8½ years at Downstate none had been
As the trier of fact and law, charged with assessing the credibility of the
various witnesses and evaluating the evidence, the Court finds that the State is
not responsible for the Claimant's fall and resultant injury. [
See Raynor v State of New York
, 98 AD2d 865, 866 (3d Dept
This Court finds that, upon review of all the evidence including listening to
the witnesses testify and observing their demeanor, there is a lack of credible
evidence that the alleged defect which supposedly caused Claimant's accident
existed for such a period of time that defendant either knew or should have
known of it, and that such defect was a proximate cause of Claimant's accident.
Claimant failed to prove by a fair preponderance of the credible evidence that
a dangerous or defective condition existed outside the shower area at his
housing unit at Downstate, or that the State had actual or constructive notice
of a dangerous or defective condition and failed to remedy it within a
reasonable period of time. The Claimant failed to see that which he should have
seen and avoided by the proper use of his senses and is thus exclusively
responsible for his fall. The mere happening of an accident does not alone
Accordingly, Defendant's motion to dismiss, reserved on at the time of trial is
hereby granted, and Claim number 107343 is in all respects dismissed.
Let judgment be entered accordingly.