New York State Court of Claims

New York State Court of Claims

McCANTS v. THE STATE OF NEW YORK, #2006-016-001, Claim No. 106170


Synopsis



Case Information

UID:
2006-016-001
Claimant(s):
DOUGLAS McCANTS
Claimant short name:
McCANTS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106170
Motion number(s):

Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Douglas McCants, Pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph F. Romani, Esq., AAG
Third-party defendant's attorney:

Signature date:
January 18, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant Douglas McCants testified that on April 5, 2002, at approximately 1:00 pm at Woodbourne Correctional Facility, he "was going to the library and the stairs [were] wet. And I slipped on the stairs and fell down the stairs. And there was no wet floor sign, nothing that was posted." Mr. McCants further testified that as a result, he hurt his forearm, elbow, hand and back. That the "stairs [were] wet" was the extent of the description provided by claimant. Moreover, there was no independent confirming evidence of any such condition.

According to claimant, "the porter had just got finished mopping and he never put up the wet floor sign." McCants did not indicate the source of this information,
i.e., he did not say whether he had actually seen porters mopping prior to his fall. He did say, however, that prior to his accident, he had never seen porters mopping because "[u]sually they do the . . . mopping when everybody else is locked in."
Defendant called Correction Officer Richard Bivins, who was on duty on April 5, 2002. According to Bivins, the procedure for inmate porters was to "put up wet floor signs, sweep . . . and then . . . mop. When the floors are dry they take the signs down . . ." Bivins had no recollection as to whether any mopping was done on April 5, 2002, although he said that it was usually done "in the morning hours," and then again at about 1:15 or 1:20 pm, after inmate programs had commenced. In any event, Bivins maintained that he was not aware of any wet condition on the stairs on the date of claimant's accident.
* * *
The State had a duty to maintain reasonably safe premises for claimant at the time of his accident. See,
e.g., Basso v Miller, 40 NY2d 233, 386 NYS2d 564 (1976). However, the State is not an insurer and in order for claimant to prevail here, he must prove that he was caused to slip and fall by a dangerous condition, and that such condition was either created by defendant, or that defendant had either actual or constructive notice of such condition. See, e.g., Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986); Bernard v Waldbaum, Inc., 232 AD2d 596, 648 NYS2d 700 (2d Dept 1996).
Assuming that there was in fact a dangerous condition,
i.e., wetness on the steps, McCants failed to prove by a preponderance of the evidence that it was created by defendant. As set forth above, although he maintained that porters had just mopped and failed to put out signs, he did not indicate the source of such information and conceded that he usually did not see the porters mopping since they did so while he and other inmates were locked in. In view of the foregoing, I cannot find that claimant demonstrated that the wet condition was in fact created by porters mopping. To the extent that the wetness might have been caused in some other way, e.g., by a spilled liquid, no evidence was presented as to notice, either actual or constructive.
In view of the foregoing, claim no. 106170 is dismissed. The Clerk of the Court is directed to enter judgment accordingly.


January 18, 2006
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims