PORTER v. THE STATE OF NEW YORK, #2007-030-010, Claim No. 107790
Claim dismissed. Claimant alleged that he suffered injury to a toe on his
right foot as he walked through the west recreational yard at Green Haven
Correctional Facility on September 26, 2002 because a dangerous condition - in
the form of a cut, jagged metal pole embedded in a cinder block protruding from
the ground - was allowed to exist without repair. Even if Defendant created a
dangerous condition such was not a proximate cause of claimant’s injuries.
Claimant was well aware of the pipe’s existence and location, and failed
to look where he was going on the day of his accident, even assuming such a fall
took place. The claimant failed to see that which he should have seen and
avoided by the proper use of his senses, and is exclusively responsible for his
fall and any injury.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
ALLEN PORTER, PRO SE
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
April 10, 2007
See also (multicaptioned
Allen Porter alleges in his claim that he suffered injury to a toe on his right
foot as he walked through the west recreational yard at Green Haven Correctional
Facility (hereinafter Green Haven) on September 26, 2002 because
defendant’s agents there allowed a dangerous condition to exist in the
form of a jagged metal pole embedded in a cinder block protruding from the
ground. Trial of the matter was held at Sing Sing Correctional Facility on
February 23, 2007.
At trial claimant testified as to the foregoing, with some amplification. He
said that the pole was in a grassy area of the yard - there was no blacktop or
cement surface there - where “people would
.” There was, therefore, “no
reason for people to think they would walk into anything, since it appeared to
be a wide expanse of grass.” The pole protruded from the ground
“between one and one and one-half feet.” Claimant said he had
“been incarcerated at Green Haven for the better part of ten years”
at the time of trial, and the pole had “been in the recreation area for
quite some time.” Accordingly, he said there was ample awareness on the
part of the State of the existence of this dangerous condition. He said that he
“arrived in Green Haven in 1997 or 1998”, and the pole was
“embedded in a cinder block,” even then. It was clearly a condition
“created by the State not a natural occurrence like ice on a bus
After he injured his toe on the pipe, he was treated at the facility clinic,
saying it was a “life threatening injury.” The ambulatory health
record [hereinafter AHR] for that day indicates he was prescribed Motrin and the
right toe area was iced. [Exhibit 2]. The AHR also recites his contemporaneous
report that his right “great toenail tip [was] stubbed back when hitting
against a broken off piece of jagged metal pole in [the] yard . . .”
On cross-examination Mr. Porter said again that the pole was sticking up above
the ground about “one foot to a foot and a half.” He repeated that
he did not see it that day, but had seen it “some months prior to the
accident.” He estimated that the earlier view of the pole had been
“somewhere between 6 and 10 months earlier.”
In a prior sworn affidavit that had been submitted in support of his motion for
late claim relief, sworn to on February 19, 2003, Mr. Porter had indicated that
the pole protruded “6 inches from the ground.” When asked to
explain the discrepancy between his trial testimony and his earlier sworn
statement, he said that the affidavit was an approximation, he did not have a
ruler then, nor did he measure it, and his present testimony was his best
recollection of the dimensions of the pipe. In the earlier affidavit he also had
indicated that the pole and the concrete structure were both obscured by
surrounding bricks. Asked if therefore, the grass was one foot to one foot and
one half high, he could not say except that the grass obscured the pole. He
could not recall how high the grass was, whether it reached his ankles, whether
it was mown, nor did he know generally whether the grass in the yard was mown.
When asked to demonstrate with his hand how high the pole was from the ground,
the demonstration showed that the pole was approximately one foot from the
ground. Mr. Porter would not agree that the grass was higher, necessarily. He
explained that the whole area is “grassy in places, with patches of
dirt” as well. The grassy area the pole was in was “perhaps three
feet by three feet” but he would not agree that the grass was necessarily
taller in order to obscure the pole. It could be the “same height, or ten
inches,” he said, “what was dangerous about the object was that you
don’t expect a jagged object to be sticking out of a tuft of grass as
you’re walking in the area.” He was walking toward his friends. He
agreed he was “not looking on the floor when . . . walking, because it is
an open area.” It was only after he tripped, that he looked down to see
what he tripped on, and saw the pole.
When asked further about his sighting of the pole 6 to 10 months earlier, he
clarified that “it was pointed out to him.” He did not recall if the
pole was in a changed condition since then, could not recall what the season
was when he saw it, and said that in general he “did not pay attention to
the ground at Green Haven on any day.” Thus, he could not say whether
there had been frost during the previous winter, or any other details concerning
climatological changes, such that objects might have heaved up during a storm.
On summation, Mr. Porter explained that saying that the pole extended one foot
to a foot and one-half out of the ground at trial, was not inconsistent with his
earlier sworn statement, in that the more complete paragraph in the affidavit
says - in addition to the indication that the pole protruded 6 inches - that the
pole was embedded in concrete that added the additional dimension. He also
argued that it was clearly a dangerous condition created by the State as the
entity having control over the area, that there was ample opportunity to fix the
dangerous condition, and that his injury was a foreseeable result of the failure
to fix the pole.
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. See also Preston v State of New York, 59 NY2d 997 (1983).
The duty of care is limited by a claimant’s reasonable expectations under
the circumstances. The State’s obligation is to make the recreation area
- in this case - as safe as it appears to be so that a Claimant can fully
comprehend and perceive any risks he may be taking by using the recreation yard.
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 Transp. Auth., 99 AD2d
246, 249 (1st Dept 1984), affd, 64 NY2d 670 (1984). With respect
to constructive notice, any “ . . . defect must be visible and apparent
and it must exist for a sufficient length of time prior to the accident to
permit . . .[a defendant] to discover and remedy it . . . (citation
omitted).” Gordon v American Museum of Natural History,
supra, at 837.
Claimant’s theory is that the Defendant created a dangerous condition,
that Claimant was in no sense liable for his own trip and fall over the
allegedly dangerous or defective condition, and that the defect proximately
caused his injuries.
As the trier of fact and law, charged with assessing the credibility
[See Raynor v State of New York, 98 AD2d 865, 866 (3d Dept 1983)]
of witnesses and evaluating evidence, the Court finds that the State is not
responsible for the Claimant’s fall and resultant injury.
No evidence was presented to the effect that the State had exclusive control
over the premises at Green Haven, or how and if a pole came to be there except
through claimant’s own testimony. It is axiomatic that “. . .
[m]ere ownership does not give rise to . . . [a] duty [to inspect and remove
hazards] . . . ” [Preston v State of New York, supra at
998]. It is highly likely that the State did exercise exclusive control, and it
is highly likely that the State can be charged with creating the condition, if
it existed, or at least the Court will assume that the condition was one that
could only have been created or repaired by the State, for the sake of argument.
Alternatively, based upon claimant’s uncontradicted testimony to the
effect that a pole had been in its present position for between 6 and 10 months
prior to his accident, it could be said that the State had constructive notice
of its existence and had failed to fix it.
Similarly, that it was a dangerous condition could be deemed apparent. A piece
of pipe sticking out of the ground in an area frequented by many people, and
semi-obscured by grass and/or bricks, clearly presents a foreseeable hazard to
the unwary walker. Presumably, correctional personnel would review the area from
time to time, and would have had ample opportunity to observe and correct the
condition but had failed to do so.
Most significantly, however, it is also apparent on this record that Mr. Porter
was well aware of the pipe’s existence and location, and failed to look
where he was going on the day of his accident, even assuming such a fall took
place. Claimant had been incarcerated at Green Haven since 1997. From the
testimony elicited, while it may have been a large area, it was an area with
which he was familiar from regular use.
The AHR submitted indicates the self-serving information claimant provided at
the time as the reason for his fall, and while it notes he was treated for an
injury to his right toe, this alone does not establish that there was a pipe,
that the State was or should have been aware of it and had failed to fix it -
nor that Mr. Porter was unaware of it -and that it was the sole reason he was
injured. Particularly a pipe whose dimensions changed depending where claimant
had arrived in his narrative. He was not a very credible witness, and recalled
little surrounding detail to reinforce his tale. There was no consistent
testimony as to the height of the pipe or the surrounding grass and/or brick
since claimant had, by turns, indicated that either grass or brick obscured his
view. He admitted he knew there was a pipe there, yet, by his own admission,
chose not to look where he was going as he walked.
Based on the Court’s observation of claimant as he testified, together
with his references to his awareness of the pole in the yard, and his changing
testimony concerning the conditions in the yard, the court cannot credit his
tale, and finds that the State cannot be held liable for any injury he
Accordingly, although the Defendant may have created a dangerous condition -
and the court is not completely satisfied as to that element of the claim
either- such was not a proximate cause of Mr. Porter’s injuries. The
claimant failed to see that which he should have seen and avoided by the proper
use of his senses, and is exclusively responsible for his fall and any injury.
Accordingly, Claim Number 107790 is in all respects dismissed.
Let Judgment be entered accordingly.
April 10, 2007
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. All quotations are to trial notes or audio
recordings unless otherwise indicated.