New York State Court of Claims

New York State Court of Claims

BARGAS v. THE STATE OF NEW YORK, #2007-031-501, Claim No. 103627


Synopsis


Claim based on slip and fall in shower area of correctional facility dismissed; Claimant failed to establish unusual water accumulation or that State had either actual or constructive notice thereof

Case Information

UID:
2007-031-501
Claimant(s):
JUAN BARGAS
Claimant short name:
BARGAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103627
Motion number(s):

Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant’s attorney:
ROBERT W. NISHMAN, ESQ.
BY: Schneider Kaurman & Sherman, P.C. Howard B. Sherman, Esq., of Counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: GEOFFREY B. ROSSI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 14, 2007
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant, Juan Bargas, was injured on October 11, 2000 as a result of a fall in the A Block, 3 Company (“A-3") shower area of Woodbourne Correctional Facility (“Woodbourne”). The trial of this claim was held in the Binghamton District on August 31, 2006 and was bifurcated. Consequently, this decision addresses the issue of liability only.


Both parties agree that Claimant fell in the A-3 shower area at Woodbourne. However, they disagree concerning not only what caused the fall, but also who witnessed the fall. The shower room, which was described as approximately the size of a normal cell, contains three shower stalls and a “slop” sink (Trial Transcript [“T”], p. 48). Claimant testified that he had been at Woodbourne and living in A-3 for approximately eight months prior to the accident. He and almost everyone else who housed in A-3 were kitchen workers. As such, most inmates on the company worked in the mess hall until approximately 5:00 p.m. or 6:00 p.m. each day. The shower room would be made available each day as the workers returned from the kitchen, sometime shortly after 5:00 p.m.

On the day of the accident, Claimant did not work. He stated that it was one of his two weekly days off. Not wanting to wait in line, and since he was already on the company, Claimant left his cell for the shower as soon as his door was opened to ensure that he was the first inmate into the shower room that day. According to Claimant, upon entering the shower room, he turned to his right and immediately slipped on water that had been permitted to accumulate on the floor. He fell before he entered an actual shower stall to begin his shower, and he was wearing his shorts and rubber-soled shower slippers at the time. Claimant hit his face on the slop sink as he fell. The impact of his head against the sink caused him to lose consciousness and he recalls very little else about the incident. As Claimant stated: “I just remember that I fell and hit myself on the sink and then was knocked out. I do not remember anything else” (T., p. 85). He did recall, however, that there were no mats on the floor of the shower room and that an inmate named Collins was behind him on the way into the shower area.

At trial, Claimant could not describe the amount of water on the shower floor saying “[t]he only thing I can say is that it was wet. There was no time for anything, I just fell down” (T., p. 93). However, on cross-examination, Defendant demonstrated that Claimant had testified at his deposition that, although there was water on the shower room floor, he described the amount as “not too much” (T., p. 99). Claimant also conceded that he had discussed how the incident had happened with Inmate Collins prior to giving his testimony. In fact, he stated that “Collins told me what happened because I could not recall what had happened when I fell down” (T., p. 100). Also on cross-examination, Claimant indicated that he had a gold tooth prior to the incident.

Claimant then called two inmates who claimed to have witnessed his accident. The first, Joe Lee Collins, testified that he also resided in A Block 3 Company at the time of the accident. Although Mr. Collins had been living on A-3 for four months prior to the incident, he testified that he was not familiar with Claimant. He did, however, testify that he recalled Claimant was working in the mess hall on the day of the accident (T., pp. 29-30). According to Mr. Collins, shower mats had never been in the shower room at any time during the four months he lived on the company prior to the accident. Mr. Collins testified that the floor of the shower area was “brick tile.” He further testified that Mr. Bargas was in the shower stall taking a shower, and therefore he was “positive” that Claimant was unclothed at the time of the accident (T., p. 42). He said that he did not recall the floor outside of the stalls being slippery that day and, more specifically, that the walkway outside of the individual shower stalls was dry (T., pp. 32-33). According to Mr. Collins, he entered the shower in the same group of three as Claimant, but there were two other inmates in the shower already who were on their way out because they had “basically finished” (T., pp. 36-37).

Claimant also called Tracy Shuler, another inmate residing in A-3 at the time, to testify concerning the accident. According to Mr. Shuler, he had been in A-3 for approximately two or three months prior to the day in question and had never seen mats in the shower room prior to Claimant’s fall. He also testified that he was with Claimant in the shower room when Claimant fell (T., p. 49). He testified that there were already two inmates in the shower area taking showers when he and Claimant arrived (T., p. 51). He indicated that Claimant had shorts and shower slippers on at the time of the accident (T., p. 67).

Claimant’s Exhibit 4 is the deposition transcript of Charles Oechler. Mr. Oechler, an inmate also residing at Woodbourne at the time of the accident, testified that he was the porter in charge of cleaning the A-3 shower area where Claimant fell. According to Mr. Oechler, there were no rubber mats on the floor in the shower area on the day of the accident. These mats had been there prior to the incident and his duties as porter required him to clean them daily. He believes that the mats had been removed approximately two months prior to Claimant’s accident. Mr. Oechler testified that he would clean the shower area every morning when all the other inmates in the area left for their work assignments. He would also sometimes give it a “quick cleaning” between 12:30 p.m. and 1:00 p.m. (Exhibit 4, p. 12). According to Mr. Oechler, the shower area would be cleaned at the latest by 1:00 p.m. each day and they would not be used again until the inmates came back from their work assignments in the late afternoon.

Claimant’s Exhibit 1 is a memorandum, dated January 11, 1999, prepared by Ronald K. Krom, the Acting Deputy Superintendent for Security at Woodbourne at the time. Claimant placed great emphasis on this memorandum, both in terms of demonstrating notice to Defendant of a dangerous condition as well as defining the duty of Defendant with regard to the requirement that shower mats be in place in the shower area. That memorandum states, in relevant part:
“Recently we have experienced several inmates slipping, falling, etc., while taking showers. Please ensure that the shower mats are in place and the assigned porters are mopping excess water in order to prevent any further incidents. They may be rolled up for cleaning, then put back in place.”
Claimant’s Exhibit 3 also merits discussion at this point. This document is an inmate grievance complaint prepared by Claimant and dated February 27, 2001. It indicates that Claimant slipped and fell on the wet shower floor in A-3 and that shower mats were not in place. The response, written on the bottom of the document by a Sergeant W. Green, indicates that new mats were put in place on March 1, 2001. Whether this means that no mats were in place prior to this or that old mats had merely been replaced is unclear. Clearly, this document supports Claimant’s contention that no shower mats were in place at the time of the accident. I am aware, however, of the self-serving nature of this document, as it is drafted by Claimant and dated after Claimant had retained counsel and commenced this action, the first claim having been filed on Claimant’s behalf a few weeks earlier on January 5, 2001. I do note, however, Sergeant Green’s indication that the floor of the A-3 shower area is comprised of nonslip tile.

Defendant’s primary witness was Correction Officer Kevin Dibble. Officer Dibble was on duty on A-3 at the time of Claimant’s accident. He was the officer that inspected and secured the company prior to the accident. He was also the officer in charge of opening and closing the inmates’ cells and calling out inmates for their individual showers. Officer Dibble’s testimony concerning the accident is in sharp contrast to that of Claimant and Claimant’s witnesses. He testified that his duties called for a detailed “fire and safety” inspection of the company at the beginning of his shift (3:00 p.m. to 11:00 p.m.) (T., pp. 109-110). That inspection included the shower area and involved making sure that it was clean and that the mats were in place. Officer Dibble does not recall finding any deficiencies during his inspection of the company and no notes reflecting any such negative findings were made in the housing unit logbook (Exhibit E).

Exhibit E clearly indicates that Officer Dibble began the shower runs that day at 5:20 p.m. and that he was notified of Claimant’s accident at 5:25 p.m. This would seem to support both Claimant’s and Officer Dibble’s testimony that Claimant was the first inmate into the shower area on the day of the accident. In fact, Officer Dibble was adamant on several points. First, that Claimant was the first inmate into the showers on October 11, 2000 (T., p. 125). No other inmates had showered before this and the shower area was completely dry at the time of Claimant’s accident (T., p. 133). Officer Dibble also testified that he clearly remembers that the rubber mat, running approximately the length of the shower room, was in place at the time of Claimant’s accident (T., pp. 112, 113, 158). Not only had he done his inspection of the company as indicated above but, after Claimant’s accident, he clearly remembers that two of Claimant’s teeth, one of them gold, had been knocked out and were clearly visible on top of the black shower mat (T., pp. 132, 134).

Officer Dibble also testified that the process in which the showers were run was more controlled than indicated by Claimant, Mr. Collins, and Mr. Shuler. According to Officer Dibble, inmates were not allowed to simply roam the company freely or leave their cells and go to the showers as they pleased (T., pp. 117, 125). Officer Dibble testified he made a list of inmates requesting showers and he released them three at a time from their cells (T., pp. 117, 121, 124). Accordingly, Officer Dibble stated that he was certain that Inmates Collins and Shuler were not with Claimant at the time Claimant went into the shower area (T., p. 140). On the contrary, he testified that Claimant was accompanied by Inmates Gonzalez and Murray (T., pp. 125, 128, 130, 131). I note that the deposition testimony of the Officer in charge of investigating the incident, Sergeant Casimir E. Tyborowski, supports Officer Dibble’s testimony that it was Inmates Gonzalez and Murray who accompanied Claimant into the shower area on that day (Ex. C, pp. 44, 48).

Claimant alleges that Defendant had a duty to place mats on the floor as required by the Defendant’s memorandum (Ex. 1). Claimant believes there was notice of several slip and fall accidents before the January 11, 1999 memorandum and that Defendant breached its duty of care to Claimant by not placing mats on the floor at the time the showers were to commence. Claimant contends that the breach of this duty caused him to fall and sustain injury.

It is well established that "[t]he State -- just as any other party . . . is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived" (Flaherty v State of New York, 296 NY 342, 346) and with respect to the safety of persons on its property, Defendant’s duty is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506). However, Defendant is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874).

In order to establish liability in a slip and fall case, Claimant must demonstrate, by a preponderance of the credible evidence, that a dangerous condition existed; that Defendant either created this dangerous condition, or had actual or constructive notice of the condition and failed to correct the problem within a reasonable period of time; and that this dangerous condition was a proximate cause of the accident (Goldman v Waldbaum, Inc., 297 AD2d 277; Dapp v Larson, 240 AD2d 918).

Based upon consideration of the entire record, I credit the testimony of both the Claimant and Officer Dibble that Claimant was the first to enter the shower area on October 11, 2000. Claimant had not yet begun his shower, however, and was still wearing his shorts and his shower slippers when he fell. Accordingly, I find that the shower area, at that point in time, had not been used and was dry. It appears to me more likely that Inmates Collins and Shuler entered the shower area just after the first group of three inmates. Both testified that two other inmates were in the shower area with Claimant (T., pp. 36, 51). Also, as indicated by Mr. Shuler, on their way back from the mess hall, before going back to their cells, it was common practice for the inmates to go to the shower room to determine if there were any open stalls (T., p. 47). I also credit officer Dibble’s testimony that a rubber mat was in place on the floor that ran in front of the three shower stalls. Accordingly, I find that Claimant has failed to demonstrate that Defendant was negligent or that any such alleged negligence was the proximate cause of Claimant’s injuries.

Assuming, arguendo, that the Defendant failed to place a mat on the floor of the shower room where Claimant fell, I do not find, as Claimant argues, that such failure constituted prima facie evidence of negligence. First, although the January 11, 1999 memorandum (Ex. 1) does refer to falling “while taking showers” and directs that “shower mats” be in place, it is not clear that the memorandum referred to mats outside of the individual shower stalls, as opposed to inside. As stated earlier, Claimant did not enter a shower stall prior to falling. More importantly, Claimant has failed to demonstrate that Defendant owed a duty to Claimant to have a mat down in the shower area. Although Exhibit 1 demonstrates that Defendant had a guideline of having such mats in place, it does not necessarily follow that this should be construed as the standard of care. This memorandum was an internal guideline, not a legal standard. Claimant has failed to demonstrate a requirement under the law that shower mats be provided. In fact, courts have supported arguments that shower mats are, in fact, not desirable, both for security and sanitary reasons (see e.g. Perez v State of New York , Ct Cl, June 28, 2005 [Claim No. 107215], Ruderman, J., UID # 2005-010-038). The standard, as set forth above, is reasonable care under the circumstances. To hold Defendant to a self-imposed standard, which surpasses that imposed by the law, would have a chilling effect, ultimately resulting in the reasoned refusal of owners to take any safety measures above and beyond the minimum requirements of the law. As stated by the Court of Appeals in Gilson v Metropolitan Opera (5 NY3d 574, 577), “These internal guidelines go beyond the standard of ordinary care and cannot serve as a basis for imposing liability” (see also Sherman v Robinson, 80 NY2d 483).

As set forth in Cuevas v State of New York (Ct Cl., January 13, 1997 [Claim No. 85501], Hanifin, J.) and as quoted by the Hon. Ferris Lebous in Figueroa v State of New York (Ct Cl, September 29, 2003 [Claim No. 103392], UID #2003-019-008):
“[Claimant argues that] had there been a rug or mat, [claimant] would not have fallen and that, therefore, the State violated a duty to [claimant]. If the Court were to accept that argument, then all lavatory rooms similar to the subject one would have to have wall-to-wall mats, since water is inevitably tracked throughout such lavatory rooms by persons who take showers and use wash basins. There is no such requirement in the law. Lavatory room floors, where there are shower stalls and wash basins, are wet by their very nature. That is a fact of life. In order to recover for injuries sustained as a result of a slip and fall in such an area, a Claimant must establish by credible proof that the lavatory room floor surface was not simply wet, but unusually slippery . . . . That, Claimant completely failed to do. Further, Claimant presented no proof that there was an unusual water accumulation on the floor of this particular lavatory at the time of his accident and that the State had notice thereof (cf., VanStry v State of New York, 104 AD2d 553; 86 NY Jur 2d, Premises Liability, § 424).”
In short, there was no proof of any sort that there was an unusual water accumulation on the floor of the A-3 shower room at the time of his accident or that Defendant had any notice thereof, either actual or constructive.

Based upon the foregoing, Claim No. 103627 should be and is hereby DISMISSED.

Any motions upon which the Court previously reserved or which were not previously decided are hereby denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.

March 14, 2007
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims