New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2007-038-103, Claim No. 107568


Inmate’s claim for injuries from slip and fall dismissed. Evidence did not preponderate in favor of claimant’s allegation that he had fallen and suffered injury, nor did it establish that defendant created the dangerous condition or had notice of the black ice that allegedly caused the slip and fall.

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 30, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate in a State correctional facility, filed this claim on April 4, 2003 seeking compensation for injuries allegedly sustained from a slip and fall on ice at Franklin Correctional Facility (“Franklin CF”) on or about December 4, 2002. The claim includes allegations of negligent maintenance, verbal harassment, and medical malpractice. By decision and order dated March 9, 2007, this Court granted defendant’s motion to dismiss those parts of claimant’s claim alleging verbal harassment and medical malpractice on res judicata grounds, but denied that part of defendant’s motion seeking dismissal of claimant’s allegation of negligent maintenance (see Smith v State of New York, UID # 2007-038-509, Claim No. 107568, Motion No. M-72893, DeBow, J. [March 9, 2007]). The trial of the negligent maintenance claim was conducted by video conference on March 26, 2007, with the parties appearing at Clinton Correctional Facility in Dannemora, New York and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony; defendant offered the testimony of New York State Department of Correctional Services (DOCS) Correction Officer Scott Fairchild. Claimant offered five documents into evidence, of which two were received in evidence.[1] All three documents offered by defendant were received in evidence. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court concludes that defendant is not liable to claimant.
On December 4, 2002, between 11:00 and 11:30 a.m., claimant returned from the mess hall to the I-1 dormitory in the Annex part of Franklin CF by way of an outdoor walkway. Claimant testified that prior to entering the dormitory, he attempted to scrape ice and snow from the bottom of his boots, using boot brushes that were positioned on brackets connected to the base of the outside wall adjacent to the entrance to the dormitory. According to claimant’s testimony, he slipped on some “black ice”[2] that had accumulated in the area underneath and around the brushes, and he fell backward to the ground. Claimant testified that he did not see the black ice prior to his fall. He further testified that there was a faucet with a “slow leak” to the left of the brushes, and that there were no handles on the wall adjacent to the brushes to provide support to inmates who were scraping off their footwear. Claimant stated that the fall caused him to jam his left elbow and shoulder and twist his right knee. On cross-examination, claimant testified that prior to the incident, he had used the same doorway to come and go from the I-1 dormitory on three occasions that morning, and had not noticed the ice on those occasions, nor had he slipped or fallen.

According to claimant, he lay on the ground for “a minute” after his fall and was helped up by inmates Antwain Jackson and Mark Brooks. Claimant testified that he thereafter “hopped” over to Correction Officer (CO) Scott Fairchild, the CO on duty at the I-1 dormitory at the time of claimant’s accident, and notified him that he had just slipped and fallen and injured himself. According to claimant, as he was relating the details of his accident to CO Fairchild, another inmate, Robert Mackasek, interrupted their conversation to inform CO Fairchild that he also had slipped, but not fallen, in the same area. Claimant then asked CO Fairchild for some salt to put on the ice so no one else would fall. CO Fairchild gave claimant the salt, and claimant then “hopped” back to the doorway and applied the salt to the ice. Claimant testified that he then returned to his “cube” in the I-1 dormitory and was not given the opportunity to go to the infirmary or explain his accident to DOCS personnel, other than CO Fairchild.

According to the testimony of CO Fairchild, in December 2002, there were inmate porters assigned to perform snow removal on the walkway leading to the I-1 dormitory, and if it had come to his attention that the walkway was slippery, he would have directed a porter to put salt on the walkway. CO Fairchild testified that in the event an inmate reported to a CO that they had fallen and were injured, the CO would ask the inmate if they wanted an “emergency sick call.” If so, the CO would notify the infirmary that an inmate had reported an injury and steps would be taken to transport the inmate to the infirmary. While CO Fairchild initially testified that he did not recall talking to claimant on December 4, 2002, after his recollection was refreshed by a memorandum he wrote dated December 13, 2002 (Defendant’s Exhibit B), CO Fairchild testified that claimant had merely asked for salt because the entryway was slippery and at no time did claimant inform him that he had slipped and fallen or that he was injured. CO Fairchild testified that he did not recall any other inmate informing him that they had slipped and fallen on December 4, 2002 or that there were any problems with inmates falling on that day. In addition, CO Fairchild’s entries in the I-1 dormitory logbook from December 4, 2002 (Defendant’s Exhibit A) include no record of claimant’s accident or claimant’s request to go to the infirmary, nor does the logbook contain any record of any other inmate slipping or falling on December 4, 2002.

According to claimant, the pain he felt in his left arm and right knee immediately following the accident was “about a nine” on a scale of one to ten. Claimant testified that when he awoke on the morning of December 5, 2002, his right knee was swollen and he could not raise his left arm, so he requested emergency sick call and was sent to the infirmary, where he received medical treatment. According to medical records introduced at trial by claimant (Claimant’s Exhibit 1), claimant had surgery on his upper left arm on May 16, 2006 to remove scar tissue from around the ulnar nerve, which claimant attributes to the alleged fall. Claimant testified that he had surgery to his left shoulder to allow him to raise his arm, but he is still unable to completely extend the arm. According to claimant, he needs surgery to address carpal tunnel syndrome in his left hand, which has numbness in the left pinky and ring finger, a condition he also attributes to the fall. Claimant, who is right-handed, testified that he continues to experience pain from the accident in his left arm and that due to the pain he is forced to sleep on his right side, he cannot sit back in a chair, and his arm gets sore and stiff when he does such regular activities as mopping or sweeping. A medical record prepared by Dr. G. Coniglio in 2004 (Defendant’s Exhibit C) indicates that a disc problem in claimant’s neck “may be the source” of the pain in his shoulder. As for his right knee, claimant testified that his knee is now mostly symptom-free, except that he experiences pain in the knee when it gets “real cold.”
“Having waived its sovereign immunity, the State is subject to the same rules of liability as apply to private citizens” (Preston v State of New York, 59 NY2d 997, 998 [1983]). It is claimant’s burden to establish his claim by a preponderance of the credible evidence (see Racz v State of New York, UID # 2007-030-004, Claim No. 109495, Scuccimarra, J. [Feb. 13, 2007]; Santiago v State of New York, UID # 2007-044-003, Claim No. 109131, Schaewe, J. [Jan. 10, 2007]). A claimant in a “slip and fall” case must demonstrate the existence of a dangerous condition, that the dangerous condition was a proximate cause of the accident, and that claimant sustained damages as a result of the accident. Additionally, the claimant must establish that defendant either created the dangerous condition, or knew or should have known in the exercise of reasonable care that the dangerous condition existed, and that defendant failed to remedy the dangerous condition within a reasonable time (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v. City of New York, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 (1996); Heliodore v State of New York, 305 AD2d 708 [3d Dept 2003]; Malossi v State of New York, 255 AD2d 807 [3d Dept 1998]; McKenzie v State of New York, UID #2007-040-007, Claim No. 107781, McCarthy, J. [February 13, 2007]).

After considering all of the evidence, including observing the testimony of claimant and CO Fairchild and their demeanor as they did so, and the exhibits received at trial, the Court finds that the preponderance of the credible evidence demonstrates that the events of December 4, 2002 did not unfold as claimant testified. Although claimant testified that he slipped, fell and was injured, claimant’s testimony was wholly uncorroborated by other testimonial or admissible documentary evidence, and there was substantial credible evidence to the contrary. Specifically, CO Fairchild’s credible testimony that claimant merely asked for salt that day and did not inform him that he had fallen, and that to his recollection no other inmate had fallen, coupled with the lack of any entry in the logbook on December 4, 2002 about any slipping or falling incident involving claimant or inmate Mackasek is persuasive and convincing evidence that no such incidents occurred on that date. Claimant’s testimony that he was experiencing extreme pain of “about a nine” on a scale of one to ten, yet he made the effort to ask for salt and apply it to the ice despite being in such pain, strains credulity and therefore casts doubt upon claimant’s version of the events. Moreover, records from the Franklin CF infirmary, that may have corroborated claimant’s testimony that he sought medical attention on December 5, 2002 for injuries from the fall that allegedly occurred the previous day were not offered into evidence. Further, the limited medical records that were received into evidence do not attribute claimant’s elbow, wrist and hand problems to the alleged incident of December 4, 2002, and they bear only one indication, recorded in 2004, that claimant reported that his shoulder injury was related to an undated backward fall. Therefore, the Court finds that the preponderance of the credible evidence does not establish that claimant, in fact, fell on December 4, 2002, and the claim must be dismissed on that ground.

Even assuming, however, that claimant established that he slipped and fell on December 4, 2002, the Court finds that claimant would not prevail because he has not established by a preponderance of the credible evidence that (1) defendant created the dangerous condition, or had actual or constructive notice of the dangerous condition, or (2) claimant suffered damages from the alleged accident. The Court will address these findings in turn.

To the extent that claimant argues that defendant created the dangerous condition because there was a leaky faucet adjacent to the brushes where claimant allegedly fell – which could lead to an inference that the leaky faucet was the source of the water that became the black ice – there was no evidence adduced at trial that defendant created the dangerous condition through an affirmative act (see Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 250 [1st Dept 1984], affd 64 NY2d 670 [1984]; Mercer v City of New York, supra at 689). Moreover, there was no evidence adduced at trial that any inmate porter cleared away any snow or ice that day, and thus no evidence that such activity affirmatively created or exacerbated a dangerous condition (see Wheeler v Grande’Vie Senior Living Community, 31 AD3d 992, 992 [3d Dept 2006]; Richer v State of New York, 31 AD3d 943, 943 [3d Dept 2006]; Gentile v Rotterdam Sq., 226 AD2d 973, 974 [3d Dept 1996]).

In cases where a claimant cannot prove that the defendant created the dangerous condition, liability still may be imposed where the defendant had actual notice thereof, or where it may be charged with “constructive notice” of the dangerous condition, i.e., defendant should have known through the exercise of reasonable care that a dangerous condition existed. “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Gordon v American Museum of Natural History, supra at 837; see Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]). The defendant’s “[g]eneral awareness that icy conditions may exist is insufficient to establish constructive notice” (Boucher v Watervliet Shores Assoc, 24 AD3d 855, 857 [3d Dept 2005]).

There is no basis for a finding that defendant had actual notice of the alleged dangerous condition, as there was no evidence adduced at trial that defendant had been informed prior to the incident of the ice on which claimant allegedly slipped. Any argument that defendant should be charged with constructive notice is defeated by claimant’s own testimony that he slipped on “black ice” that he had not seen prior to the alleged fall, despite having walked past the icy area on three occasions that morning. As claimant implicitly acknowledges, “black ice ‘is, by its very nature, difficult to see’ ” (Martin v RP Assoc., 37 AD3d 1017, 1017 [3d Dept 2007], quoting Stoddard v G.E. Plastics Corp., 11 AD3d 862, 863 [3d Dept 2004]). Simply stated, defendant cannot be charged with constructive notice of a condition that was not readily observable prior to the alleged slip and fall. Further, because there is nothing in the record to indicate that the leak in the faucet had existed for a sufficient length of time prior to the alleged accident to permit defendant’s employees to discover the dangerous condition and remedy it, the Court cannot infer that the leak provided defendant with advance notice of the icy condition. Moreover, even if defendant had been generally aware that the leaky faucet could create an icy condition, such general awareness alone would be insufficient to establish constructive notice of the specific icy condition that existed at the time of claimant’s accident (Boucher v Watervliet Shores Assoc., supra; Matter of Schleider v State of New York, 5 AD3d 1052 [4th Dept 2004]). In sum, the Court finds that claimant failed to prove that defendant created the dangerous condition, or had actual or constructive notice of the dangerous condition.

Second, claimant has failed to prove by a preponderance of the credible evidence that the injuries he claims – and thus damages – were caused by the alleged fall. According to claimant, he sought and received medical care from the infirmary the day after the alleged fall, on December 5, 2002, yet, as noted supra, no medical records from that visit to the infirmary were offered into evidence by claimant to substantiate his testimony regarding his alleged injuries. Moreover, the medical records that claimant did introduce at trial (Claimant’s Exhibit 1) do not contain any entries that would enable the Court to find that the fall that allegedly occurred on December 4, 2002 caused the claimed injuries. And to the contrary, defendant’s Exhibit C contains a statement by Dr. Coniglio that claimant’s shoulder pain may be caused by a disc problem in claimant’s neck that claimant testified preexisted the alleged fall.
The Court finds in favor of defendant, and the claim is dismissed. Any motions not previously ruled upon are hereby DENIED. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.

Let judgment be entered accordingly.

April 30, 2007
Albany, New York
Judge of the Court of Claims

[1]. At trial, claimant offered into evidence three exhibits, marked claimant’s Exhibits 3, 4 and 5 for identification, which are the sworn affidavits of Antwain Jackson and Mark Brooks (Exhibits 3 and 4, respectively) and the unsworn written statement of Robert A. Mackasek (Exhibit 5) regarding the alleged incident. Defendant objected to the introduction of said exhibits on the grounds that such out-of-court statements constitute hearsay and are inadmissible. The Court reserved on the introduction of said exhibits into evidence at trial and now sustains defendant’s objections. Thus, Exhibits 3, 4 and 5 have not been received into evidence or considered.
[2]. Unless otherwise noted, any quoted words or phrases are direct quotations from the testimony adduced at trial or from exhibits introduced into evidence at trial.