New York State Court of Claims

New York State Court of Claims

V. STATE OF NEW YORK, #2006-018-528, Claim No. 105792


The Court finds Claimant and Defendant each 50% responsible for Claimant’s slip and fall accident on a basketball court while incarcerated at Ogdensburg Correctional Facility.

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:
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 5, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant brings this claim seeking damages for an injury that occurred on June 17, 2000, while he was incarcerated at Ogdensburg Correctional Facility (hereinafter OCF).
The trial was bifurcated and this decision relates to liability only.
Claimant testified that on that Saturday morning, June 17, 2000, he went to the facility gymnasium to play basketball. He described the Activities Building where the gym is located and which includes an equipment room, a weight room, a music room, and a TV room. A Correction Officer (hereinafter CO) sits at a desk in the entryway of the building. Claimant arrived at the Activities Building at approximately 10:00 a.m. and saw CO Shaver at the desk. No one was in the gym at the time, and he asked CO Shaver if he could get a basketball. He got one from the equipment room and went into the gym. He dribbled down to the far end of the court and was doing a lay-up when his left foot slipped and he fell on his left shoulder. He said there was a loud thud. Claimant said he had pain radiating down his left arm and had trouble getting up.
When he did get to his feet, Claimant observed a wet substance in a streak between the foul line and the basket. He said there were streaks in other areas also. He then went to the front desk and told CO Shaver what had happened. Claimant testified that the CO wanted to inspect the area, so the two of them returned to the gym. CO Shaver said, "I see what you mean," according to Claimant. CO Shaver then called the infirmary and sent Claimant for medical attention. Claimant arrived at the infirmary at 10:30 a.m. as recorded on Claimant’s medical record.
Claimant testified that he was familiar with the cleaning of the gym floor because he had seen the porters clean it. The policy, at the time, was that no one could be on the basketball court until the floor was clean and dry. He said when CO Shaver allowed him to get a basketball, Claimant believed that the court was in proper condition. Claimant testified he has observed inmates clean the floor with a substance poured on the bottom of a broom and then applied to the floor which leaves streaks. Then they use another broom to remove the streaks. He saw the brooms and cleaning materials near the shower area that day, and he assumed that the floor had been cleaned that morning. After being treated at the infirmary, Claimant returned to his housing unit because the gym was closed.
Claimant called CO Irwin Shaver as a witness. CO Shaver was the gym/lobby officer at the time of Claimant’s fall and had held the job for 16½ years when he gave it up in 2005. His job duties included security and control, which required searching the gym for weapons, making sure there were sufficient supplies for the day, and making sure the gym was prepared for use by the inmates, including the gym floor.
As part of the required maintenance, the gym floor is dusted daily (Exhibit 13). At night, the last shift is responsible for making sure everything is ready for the morning. So at night, around 10:00 p.m., the inmate porters would, if there is a clean dust mop head, spray it with Gabriel’s floor spray (Exhibit 14). The floor is not sprayed, just the dust mop. All chemicals, such as this floor spray, are kept in a locked cabinet accessible only by a CO. If the dust mop is prepared the night before, by the time the porters arrive at approximately 8:50 a.m. for the morning cleaning, the mop head is dry. The dust mop is then pushed around the gym floor to remove dust. The dust mop is approximately four feet wide and made of cotton. It takes the inmate porters approximately five to seven minutes to clean the floor in the morning before the 9:00 a.m. recreation run.
Liquid would be applied directly on the gym floor only as needed for specific incidents (i.e., dried salt build-up from boots during the winter months, or if an inmate became sick and vomited on the floor).
On June 17, 2000, CO Shaver was working his usual 6:45 a.m. to 3:00 p.m. shift. He arrived at the Activities Building by approximately 6:50 a.m. The porters would have arrived at approximately 8:50 a.m. to clean the gym floor. The cleaning would be complete before any equipment would be given out.
CO Shaver testified both on direct and cross-examination that he did not recall Claimant’s accident. However, he testified that he recalled that there were no inmates on the basketball court at 9:00 a.m. on June 17, 2000. He also recalled that no cleaning spray was given to the inmates that morning for cleaning the gym floor, so the porters would have used whatever was on the mops from the night before. He acknowledged that since he was not on duty the night before, he did not know whether the mop heads had been sprayed with Gabriel’s Treatment, or if sprayed, how much was sprayed.
When Claimant fell, he reported the incident to CO Shaver, which is the first time he had contact with Claimant, according to Shaver. CO Shaver testified that he called the infirmary for Claimant, as his first concern was getting Claimant medical attention. He then reported the injury to his supervisor. He did not go and look at the floor where Claimant fell until he accompanied Claimant after he had returned from the infirmary at around 10:30 a.m.; the time was an approximation as the clocks in the facility are not synchronized. CO Shaver wrote in the log book (Exhibit 8) about Claimant’s accident at 10:10 a.m., based upon the time on his watch. CO Shaver was questioned about the notation on the medical records indicating Claimant arrived for treatment at 10:30 a.m. He had no explanation for the time differential speculating Claimant may have had to wait for an escort, if he went with an escort, or he may have had to wait at the infirmary.
CO Shaver testified that when he went with Claimant, after Claimant’s return from the infirmary, and looked at the location where Claimant fell, he did not see anything on the floor. CO Shaver also testified that he did not recall telling Claimant after looking at the floor, “I see what you mean.”
There was a second recreation run on June 17 at 10:00 a.m. The gym closed at 11:15 a.m. to allow inmates to return to their dorms for the master count and lunch. CO Shaver testified that after he accompanied Claimant to the location of his fall, Claimant returned to his housing unit.
After CO Shaver’s testimony, Claimant requested that the proof be held open for the testimony of Jesse Sanchez, an inmate witness who resided in New York City but was in California at the time of trial. The Court agreed to hold open the proof for Mr. Sanchez’s testimony until April 25, 2006
. On February 15, 2006, Claimant sent a letter to the Court and opposing counsel advising that Mr. Sanchez was still in California and would not be available to testify. The Court, thereafter, closed the proof.
In order to establish liability in a slip and fall case, Claimant must prove that the Defendant created a dangerous condition or had actual or constructive knowledge of it (Oliveira v County of Broome, 5 AD3d 898; Williams v Hannaford Bros. Co., 274 AD2d 649, 650; Segretti v Shorenstein Co., E., 256 AD2d 234). A finding of Defendant’s negligence must be based on proof indicating that Claimant’s “injury was sustained wholly or in part by a cause for which the defendant was responsible,” mere speculation or guesswork is not sufficient (Bernstein v City of New York, 69 NY2d 1020, 1022).
Claimant has established, based upon his undisputed credible testimony, that he slipped and fell on a wet substance in a streak on the gym floor between the foul line and the basket. CO Shaver testified that part of his job duties on June 17, 2000, was to make sure the gym floor was prepared for use by the inmates, and he was in charge of the inmate porters who cleaned the floor. The inmate porters cleaned the floor by using dust mops sprayed with Gabriel’s dust treatment. Although, typically, the dust mops are sprayed with the substance the night before, CO Shaver testified if too much of the substance was sprayed on, it could make the floor slippery. There were occasions when the porters did use too much which left streaks on the floor requiring a second dusting. No other possible explanation for the wet substance was offered (see Kappes v Cohoes Bowling Arena, 2 AD3d 1034, 1035). Although the Gabriel’s spray, as well as all chemicals, are stored in a locked cabinet, the Court finds it difficult to accept CO Shaver’s recollection that he did not give out any cleaning chemicals that morning when he denied any memory of Claimant’s accident.
The Court finds that the presence of a wet substance on a basketball court is a dangerous condition. Although the State lacked knowledge, actual or constructive, of the dangerous condition, Claimant established that the inmate porters for whom Defendant’s employee was responsible, created the dangerous condition which caused Claimant’s injuries (Kappes, 2 AD3d at 1035; Buccellato v County of Nassau, 158 AD2d 440, 441-442). To the extent Claimant could see the wet streak on the floor he, too, has a duty to see what was readily visible (see Centeno v Regine’s Originals, 5 AD3d 210, 211; Morgan v Genrich, 239 AD2d 919, 920; Bucich v City of New York, 111 AD2d 646, 648).
Accordingly, the Court finds both Claimant and Defendant fifty percent (50%) responsible for Claimant’s injuries.
All motions before the Court not hereinbefore decided are hereby DENIED.
The Court will schedule a conference with claimant and defendant’s counsel to set a date for the damages trial on this claim.

September 5, 2006
Syracuse, New York
Judge of the Court of Claims

[1].The claim also states a cause of action for dental malpractice based upon the facility dentist’s failure to properly treat a tooth Claimant cracked on April 16, 2000. At trial, Claimant withdrew this portion of his claim. Claimant’s post-trial brief indicates that he did not pursue the portion of the claim seeking relief for dental malpractice which he alleges in the claim occurred on January 25, 2000. However, this portion of the claim was dismissed pursuant to a prior Decision and Order of this Court on Motion No. M-65003, CM-65106 filed June 11, 2003.
[2].On the record, Claimant was given 30 days from Janurary 25, 2006 to subpoena Mr. Sanchez and 90 days to obtain Mr. Sanchez’s testimony.