Claimant Dianne Mitchell seeks damages on behalf of her infant son, Rahim
Bucchan (hereinafter referred to as "Rahim"), for personal injuries allegedly
sustained by him in an accident which occurred on October 21, 2001 at Cape
Vincent Correctional Facility (hereinafter referred to as "Cape
On this date, Rahim was in the visitors' room at Cape Vincent, and when he
attempted to open a locker door, a set of lockers fell down on top of him.
Claimant alleges that the State was negligent in its care and maintenance, due
to modifications made to these lockers by personnel at the facility.
Claimant testified that on October 21, 2001, she took Rahim, who was four years
old at the time, and his older sister, Nia Bucchan, to Cape Vincent to visit
their father, inmate Kerwin Bucchan. Rahim was approximately three feet tall at
the time. Claimant testified that while they were waiting in the visitors'
processing center, she went into the changing room to comb her hair, leaving her
two children together sitting at a nearby table. Although she testified that
she was only in the changing room for approximately two or three minutes, while
she was in the room she heard a crash. Claimant immediately exited the changing
room and observed Rahim on the floor with correction officers surrounding him.
There were fallen lockers on the floor as well. Claimant, therefore, did not
witness this accident.
Rahim's sister, Nia Bucchan, was the only eyewitness to the accident to testify
at trial. At the time of this trial, Nia was 11 years of
. At the time of the accident, she was seven years of age. Nia testified that
shortly after her mother went into the changing room at the visitors' processing
center at Cape Vincent, Rahim approached the lockers and tried to open one of
the locker doors. When he opened the locker door, the set of lockers suddenly
fell over and struck him on his head.
Nicholas Bellizzi, a professional engineer, was called as claimant's expert,
and qualified as such in the field of engineering. Mr. Bellizzi never visited
Cape Vincent, and never personally examined the lockers that were involved in
this accident. Rather, Mr. Bellizzi's opinions and testimony were based solely
upon his review of discovery materials provided by the State, and in particular,
photographs of the locker which were admitted into evidence.
Based upon his review of these documents and photographs, Mr. Bellizzi
testified that the base of the locker unit which struck Rahim was 15 inches wide
and 18 inches deep, and that four wheel casters had been affixed to the base of
the locker. Furthermore, the four wheels were not attached at the outside of
the corners on the base of the locker, but instead were affixed at points set in
from the outer perimeter of the base.
Based upon these observations, Mr. Bellizzi concluded that the addition of
wheels to the locker, and the placement of these wheels inside the outer
perimeter of the locker base, drastically decreased its stability. He concluded
that the instability created by affixing the wheels to the base of the locker in
this manner was a substantial factor in the occurrence of this accident. He
further noted that even with the addition of wheels to the locker, the
instability could have been negated if the locker had been secured to the
adjoining wall, either permanently or temporarily.
Richard Doell, the plant superintendent at Cape Vincent, testified that the
lockers involved in this accident had been purchased by Cape Vincent from
Corcraft, a Department of Correctional Services corporation. The lockers were
"stacked" in units and these units stood approximately 72 inches high. Mr.
Doell testified that after the lockers were received at Cape Vincent, facility
employees attached columns of lockers together by inserting a bolt through the
rear of the lockers. He testified that this bolting of the lockers together was
performed in order to increase stability. He also testified that facility
personnel attached the wheeled casters to the base of the lockers. He
acknowledged, however, that these modifications were made without any
engineering guidelines or testing.
Frank Shaw, the fire safety officer at Cape Vincent, testified on behalf of the
defendant. He testified that wheels were attached to the base of lockers for
security purposes, since it was necessary to move these lockers when they were
placed in the lobby, since they blocked views to the outside of the building.
Additionally, he testified that the lockers had to be moved, on occasion, when
it was necessary to search behind the lockers for possible contraband.
However, two of claimant's witnesses, James Collins and Timothy Bezio, both
also employed at Cape Vincent, provided different testimony in this regard.
Correction Officer Bezio was on duty the day of the incident, and was the
correction officer who responded to the scene when he heard the crash. He came
upon Rahim lying on the floor, with the lockers on the floor next to him.
Officer Bezio testified that wheels had been affixed to the lockers to increase
ease of movement of the lockers throughout the facility. Similarly, James
Collins, a general mechanic at the facility, testified that wheels had been
attached to the lockers so that they could be moved more easily for cleaning.
No other witnesses testified at this trial.
Based upon the foregoing testimony, there is no question that modifications to
the lockers (in particular, the attachment of wheel casters to the base of the
lockers in question), were made by employees of the defendant at Cape Vincent.
Defendant contends that the placement of wheels on these lockers was done for
security reasons, and that such action therefore constituted a governmental
function for which the State is immune from liability, absent a special
relationship between the State and the injured party (
see Sebastian v State of New York
, 93 NY2d 790).
It is clear to this Court, however, that the maintenance (and alteration) of
lockers for use by visitors at a State correctional facility is not a
governmental function, but rather is a proprietary function, and that the
State's duty to reasonably maintain these lockers must be viewed in the State's
capacity as a property owner.
As a property owner, the State is held to the same standard of care as any
private landowner (
Preston v State of New York
, 59 NY2d 997), and therefore it has the duty
to use reasonable care under the circumstances to prevent injury to those
persons using its premises (Basso v Miller
, 40 NY2d 233). The State must
therefore act as a reasonable person in maintaining its property in a reasonably
safe condition in view of all the circumstances, including the likelihood of
injury to others, the seriousness of the injury, and the burden of avoiding the
risk (Miller v State of New York
, 62 NY2d 506). The State, however, is
not an insurer, and negligence may not be inferred solely from the happening of
an accident (Tripoli v State of New York
, 72 AD2d 823; Mochen v State
of New York
, 57 AD2d 719).
Therefore, in order to prevail on this claim, claimant must establish by a fair
preponderance of the evidence that the State breached its duty of care (1)
either by creating, or having actual or constructive notice of, a foreseeably
dangerous condition; (2) failing to take steps to correct, or at least
neutralize, the dangerous condition within a reasonable time; and (3) that such
condition was a proximate cause of the injuries suffered by her son.
In this claim, it is undisputed that personnel at Cape Vincent modified the
storage lockers when they placed wheel casters on the base of these lockers.
The Court also accepts the testimony from claimant's expert that the placement
of these wheels, and the location on the base of the lockers where they were
placed, substantially decreased the stability of the lockers and made them
susceptible to tipping. Accordingly, since the State created the condition,
there is no issue as to notice.
Additionally, since these lockers were specifically intended for use by
visitors to the facility, and since children of all ages were permitted
visitation, personnel at the facility were aware, or should have been aware,
that these lockers could very well be used by small children.
The uncontradicted testimony from Rahim's sister Nia established to the
satisfaction of the Court that the locker tipped and fell onto Rahim when he
attempted to open the locker door. There was no testimony or other evidence to
even remotely suggest that Rahim, or any other children, were misbehaving, or
that anyone had pushed the lockers over onto him.
Based on the foregoing, therefore, the Court finds that the State, by affixing
the wheel casters to the base of the lockers, significantly decreased the
stability of the lockers, and that such modifications created a foreseeably
dangerous condition. The Court further finds that this condition was a
proximate cause of the accident which caused injuries to Rahim.
Having found State liability for this accident, the Court must therefore
consider the issue of comparative negligence.
As previously stated herein, there was no evidence of any misbehavior on
Rahim's part. Testimony from Rahim's sister established, without contradiction,
that the lockers fell over on Rahim when he merely attempted to open a locker
Furthermore, at the time of his accident, Rahim was four years old. Case law
has established a conclusive presumption that a child under four years of age is
incapable of contributory (comparative) negligence (NY Jur 2d, Negligence §
122). Although there is no specific statutory authority or rule of law which
establishes an arbitrary age for the application of comparative negligence, a
presumption exists that a child under 12 years of age is incapable of
negligence, a presumption which can be rebutted, however, by individual
circumstances (NY Jur 2d, Negligence § 120).
In this particular case, in addition to the fact that Rahim was of a very young
age at the time of this accident, as stated above there was no evidence to even
remotely suggest any comparative or contributory negligence on his part.
Additionally, General Obligations Law § 3-111 specifically precludes
any contributory negligence of a parent being imputed to the infant, and
therefore the comparative negligence, if any, of claimant Dianne Mitchell has
not been considered.
Accordingly, the Court finds that the State must be held fully liable for the
personal injuries suffered by Rahim in this accident.
The Clerk of the Court is hereby directed to enter an interlocutory judgment on
the issue of liability in accordance with this decision. The Court will set
this matter down for trial on the issue of damages as soon as practicable.
Any motions not heretofore ruled upon are hereby denied.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.